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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and of itself entail discrimination because of sex. We can
see this because it is quite possible for an employer to dis-
criminate on those grounds without taking the sex of an in-
dividual applicant or employee into account. An employer
can have a policy that says: “We do not hire gays, lesbians,
or transgender individuals.” And an employer can imple-
ment this policy without paying any attention to or even
knowing the biological sex of gay, lesbian, and transgender
applicants. In fact, at the time of the enactment of Title
VII, the United States military had a blanket policy of re-
fusing to enlist gays or lesbians, and under this policy for
years thereafter, applicants for enlistment were required to
complete a form that asked whether they were “homosex-
ual.” Appendix D, infra, at 88, 101.
   At oral argument, the attorney representing the employ-
ees, a prominent professor of constitutional law, was asked
if there would be discrimination because of sex if an em-
ployer with a blanket policy against hiring gays, lesbians,
and transgender individuals implemented that policy with-
out knowing the biological sex of any job applicants. Her
candid answer was that this would “not” be sex discrimina-
tion.10 And she was right.
   The attorney’s concession was necessary, but it is fatal to
the Court’s interpretation, for if an employer discriminates
against individual applicants or employees without even
knowing whether they are male or female, it is impossible
to argue that the employer intentionally discriminated be-
cause of sex. Contra, ante, at 19. An employer cannot in-
tentionally discriminate on the basis of a characteristic of
which the employer has no knowledge. And if an employer
does not violate Title VII by discriminating on the basis of
——————
  10 See Tr. of Oral Arg. in Nos. 17–1618, 17–1623, pp. 69–70 (“If there

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