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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sex.”14 Similarly, Stephens argues that sex and gender
identity are necessarily intertwined: “By definition, a
transgender person is someone who lives and identifies
with a sex different than the sex assigned to the person at
birth.”15
   It is curious to see this argument in an opinion that pur-
ports to apply the purest and highest form of textualism be-
cause the argument effectively amends the statutory text.
Title VII prohibits discrimination because of sex itself, not
everything that is related to, based on, or defined with ref-
erence to, “sex.” Many things are related to sex. Think of
all the nouns other than “orientation” that are commonly
modified by the adjective “sexual.” Some examples yielded
by a quick computer search are “sexual harassment,” “sex-
ual assault, “sexual violence,” “sexual intercourse,” and
“sexual content.”
   Does the Court really think that Title VII prohibits dis-
crimination on all these grounds? Is it unlawful for an em-
ployer to refuse to hire an employee with a record of sexual
harassment in prior jobs? Or a record of sexual assault or
violence?
   To be fair, the Court does not claim that Title VII prohib-
its discrimination because of everything that is related to
sex. The Court draws a distinction between things that are
“inextricably” related and those that are related in “some
vague sense.” Ante, at 10. Apparently the Court would
graft onto Title VII some arbitrary line separating the
things that are related closely enough and those that are
not.16 And it would do this in the name of high textualism.
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  14 Brief for American Psychological Association et al. as Amici Curiae

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