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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An additional argument made in passing also fights the
text of Title VII and the policy it reflects. The Court pro-
claims that “[a]n individual’s homosexuality or transgender
status is not relevant to employment decisions.” Ante, at 9.
That is the policy view of many people in 2020, and perhaps
Congress would have amended Title VII to implement it if
this Court had not intervened. But that is not the policy
embodied in Title VII in its current form. Title VII prohib-
its discrimination based on five specified grounds, and nei-
ther sexual orientation nor gender identity is on the list. As
long as an employer does not discriminate based on one of
the listed grounds, the employer is free to decide for itself
which characteristics are “relevant to [its] employment de-
cisions.” Ibid. By proclaiming that sexual orientation and
gender identity are “not relevant to employment decisions,”
the Court updates Title VII to reflect what it regards as
2020 values.
   The Court’s remaining argument is based on a hypothet-
ical that the Court finds instructive. In this hypothetical,
an employer has two employees who are “attracted to men,”
and “to the employer’s mind” the two employees are “mate-
rially identical” except that one is a man and the other is a
woman. Ante, at 9 (emphasis added). The Court reasons
that if the employer fires the man but not the woman, the
employer is necessarily motivated by the man’s biological
sex. Ante, at 9–10. After all, if two employees are identical
in every respect but sex, and the employer fires only one,
what other reason could there be?
   The problem with this argument is that the Court loads
the dice. That is so because in the mind of an employer who
does not want to employ individuals who are attracted to
——————
namely, “pregnancy, childbirth, [and] related medical conditions.” 42
U. S. C. §2000e(k). This definition should inform the meaning of “be-
cause of sex” in Title VII more generally. Unlike pregnancy, neither sex-
ual orientation nor gender identity is biologically linked to women or
men.
                  Cite as: 590 U. S. ____ (2020)             15 ALITO, J., dissenting

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