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

1,689 chars

against her, rated her a “model employee.” At the party,
the employer learned something new, her sexual orienta-
tion, and it was this new information that motivated her
discharge. So this is another example showing that dis-
crimination because of sexual orientation does not inher-
ently involve discrimination because of sex.
   In addition to the failed argument just discussed, the
Court makes two other arguments, more or less in passing.
The first of these is essentially that sexual orientation and
gender identity are closely related to sex. The Court argues
that sexual orientation and gender identity are “inextrica-
bly bound up with sex,” ante, at 10, and that discrimination
on the basis of sexual orientation or gender identity in-
volves the application of “sex-based rules,” ante, at 17. This
is a variant of an argument found in many of the briefs filed
in support of the employees and in the lower court decisions
that agreed with the Court’s interpretation. All these vari-
ants stress that sex, sexual orientation, and gender identity
are related concepts. The Seventh Circuit observed that
“[i]t would require considerable calisthenics to remove ‘sex’
from ‘sexual orientation.’ ” Hively, 853 F. 3d, at 350.11 The
Second Circuit wrote that sex is necessarily “a factor in sex-
ual orientation” and further concluded that “sexual orien-
tation is a function of sex.” 883 F. 3d 100, 112–113 (CA2
2018) (en banc). Bostock’s brief and those of amici support-
ing his position contend that sexual orientation is “a sex-
based consideration.”12 Other briefs state that sexual ori-
entation is “a function of sex”13 or is “intrinsically related to

Other Sections in This Document (1015)

Full Text