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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public bathroom).
   In 1964 and for many years thereafter, homosexuals were
barred from the military. See, e.g., Army Reg. 635–89, §I(2)
(a) (July 15, 1966) (“Personnel who voluntarily engage in
homosexual acts, irrespective of sex, will not be permitted
to serve in the Army in any capacity, and their prompt sep-
aration is mandatory”); Army Reg. 600–443, §I(2) (April 10,
1953) (similar). Prohibitions against homosexual conduct
by members of the military were not eliminated until 2010.
See Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515
(repealing 10 U. S. C. §654, which required members of the
Armed Forces to be separated for engaging in homosexual
conduct).
   Homosexuals were also excluded from entry into the
United States. The Immigration and Nationality Act of
1952 (INA) excluded aliens “afflicted with psychopathic per-
sonality.” 8 U. S. C. §1182(a)(4) (1964 ed.). In Boutilier v.
INS, 387 U. S. 118, 120–123 (1967), this Court, relying on
the INA’s legislative history, interpreted that term to en-
compass homosexuals and upheld an alien’s deportation on
that ground. Three Justices disagreed with the majority’s
interpretation of the phrase “psychopathic personality.”27
But it apparently did not occur to anyone to argue that the
Court’s interpretation was inconsistent with the INA’s ex-
press prohibition of discrimination “because of sex.” That
was how our society—and this Court—saw things a half
century ago. Discrimination because of sex and discrimina-
tion because of sexual orientation were viewed as two en-
tirely different concepts.
   To its credit, our society has now come to recognize the
injustice of past practices, and this recognition provides the
impetus to “update” Title VII. But that is not our job. Our
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  27 Justices Douglas and Fortas thought that a homosexual is merely

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