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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of racial discrimination in this country not to understand
what is at stake in such cases . . . . A prohibition on ‘race-
mixing’ was . . . grounded in bigotry against a particular
race and was an integral part of preserving the rigid hier-
archical distinction that denominated members of the black
race as inferior to whites.” 883 F. 3d, at 158–159 (Lynch,
J., dissenting).
   Discrimination because of sexual orientation is different.
It cannot be regarded as a form of sex discrimination on the
ground that applies in race cases since discrimination be-
cause of sexual orientation is not historically tied to a pro-
ject that aims to subjugate either men or women. An em-
ployer who discriminates on this ground might be called
“homophobic” or “transphobic,” but not sexist. See Wittmer
v. Phillips 66 Co., 915 F. 3d 328, 338 (CA5 2019) (Ho, J.,
concurring).
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   The opinion of the Court intimates that the term “sex”
was not universally understood in 1964 to refer just to the
categories of male and female, see ante, at 5, and while the
Court does not take up any alternative definition as a
ground for its decision, I will say a word on this subject.
   As previously noted, the definitions of “sex” in the una-
bridged dictionaries in use in the 1960s are reproduced in
Appendix A, infra. Anyone who examines those definitions
can see that the primary definition in every one of them re-
fers to the division of living things into two groups, male
and female, based on biology, and most of the definitions
further down the list are the same or very similar. In addi-
tion, some definitions refer to heterosexual sex acts. See

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