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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duty is to understand what the terms of Title VII were un-
derstood to mean when enacted, and in doing so, we must
take into account the societal norms of that time. We must
therefore ask whether ordinary Americans in 1964 would
have thought that discrimination because of “sex” carried
some exotic meaning under which private-sector employers
would be prohibited from engaging in a practice that repre-
sented the official policy of the Federal Government with
respect to its own employees. We must ask whether Amer-
icans at that time would have thought that Title VII banned
discrimination against an employee for engaging in conduct
that Congress had made a felony and a ground for civil
commitment.
   The questions answer themselves. Even if discrimination
based on sexual orientation or gender identity could be
squeezed into some arcane understanding of sex discrimi-
nation, the context in which Title VII was enacted would
tell us that this is not what the statute’s terms were under-
stood to mean at that time. To paraphrase something Jus-
tice Scalia once wrote, “our job is not to scavenge the world
of English usage to discover whether there is any possible
meaning” of discrimination because of sex that might be
broad enough to encompass discrimination because of sex-
ual orientation or gender identity. Chisom v. Roemer, 501
U. S. 380, 410 (1991) (dissenting opinion). Without strong
evidence to the contrary (and there is none here), our job is
to ascertain and apply the “ordinary meaning” of the stat-
ute. Ibid. And in 1964, ordinary Americans most certainly
would not have understood Title VII to ban discrimination
because of sexual orientation or gender identity.
   The Court makes a tiny effort to suggest that at least
some people in 1964 might have seen what Title VII really
means. Ante, at 26. What evidence does it adduce? One
complaint filed in 1969, another filed in 1974, and argu-
ments made in the mid-1970s about the meaning of the
Equal Rights Amendment. Ibid. To call this evidence
34                BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting

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