Section 7

Citation: Section 7
Parent Document: Bostock v. Clayton County, 590 U.S. 644 (2020)
Jurisdiction: United States (federal)
Effective Date: 2020-06-15
Original Source: https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ ↗

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this opinion includes the full definitions of “sex” in the un-
abridged dictionaries in use in the 1960s.)
   In all those dictionaries, the primary definition of “sex”
was essentially the same as that in the then-most recent
edition of Webster’s New International Dictionary 2296
(def. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms
formed on the distinction of male and female.” See also
American Heritage Dictionary 1187 (def. 1(a)) (1969) (“The
property or quality by which organisms are classified ac-
cording to their reproductive functions”); Random House
Dictionary of the English Language 1307 (def. 1) (1966)
(Random House Dictionary) (“the fact or character of being
either male or female”); 9 Oxford English Dictionary 577
(def. 1) (1933) (“Either of the two divisions of organic beings
distinguished as male and female respectively”).
   The Court does not dispute that this is what “sex” means
in Title VII, although it coyly suggests that there is at least
some support for a different and potentially relevant defi-
nition. Ante, at 5. (I address alternative definitions below.
See Part I–B–3, infra.) But the Court declines to stand on
that ground and instead “proceed[s] on the assumption that
‘sex’ . . . refer[s] only to biological distinctions between male
and female.” Ante, at 5.
   If that is so, it should be perfectly clear that Title VII does
not reach discrimination because of sexual orientation or
gender identity. If “sex” in Title VII means biologically
male or female, then discrimination because of sex means
discrimination because the person in question is biologi-
cally male or biologically female, not because that person is
sexually attracted to members of the same sex or identifies
as a member of a particular gender.
   How then does the Court claim to avoid that conclusion?
——————
to an individual’s sex assigned at birth or sex characteristics.” Ibid. Un-
der these definitions, there is no apparent difference between discrimi-
nation because of transgender status and discrimination because of gen-
der identity.
6              BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting

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