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/ ↗

Full Text

1,597 chars

Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339,
357 (CA7 2017) (Posner, J., concurring). The Court seem-
ingly has the same opinion about our colleagues on the
Courts of Appeals, because until 2017, every single Court of
Appeals to consider the question interpreted Title VII’s pro-
hibition against sex discrimination to mean discrimination
on the basis of biological sex. See Part III–C, infra. And for
good measure, the Court’s conclusion that Title VII unam-
biguously reaches discrimination on the basis of sexual ori-
entation and gender identity necessarily means that the
EEOC failed to see the obvious for the first 48 years after
Title VII became law.7 Day in and day out, the Commission
enforced Title VII but did not grasp what discrimination
“because of . . . sex” unambiguously means. See Part III–C,
infra.
  The Court’s argument is not only arrogant, it is wrong. It
fails on its own terms. “Sex,” “sexual orientation,” and “gen-
der identity” are different concepts, as the Court concedes.
Ante, at 19 (“homosexuality and transgender status are dis-
tinct concepts from sex”). And neither “sexual orientation”
nor “gender identity” is tied to either of the two biological
sexes. See ante, at 10 (recognizing that “discrimination on
these bases” does not have “some disparate impact on one
sex or another”). Both men and women may be attracted to
members of the opposite sex, members of the same sex, or
members of both sexes.8 And individuals who are born with
——————
  7 The EEOC first held that “discrimination against a transgender indi-

Other Sections in This Document (1015)

Full Text