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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What today’s decision latches onto are Oncale’s com-
ments about whether “ ‘male-on-male sexual harassment’ ”
was on Congress’s mind when it enacted Title VII. Ante, at
28 (quoting 523 U. S., at 79). The Court in Oncale observed
that this specific type of behavior “was assuredly not the
principal evil Congress was concerned with when it enacted
Title VII,” but it found that immaterial because “statutory
prohibitions often go beyond the principal evil to cover rea-
sonably comparable evils, and it is ultimately the provisions
of our laws rather than the principal concerns of our legis-
lators by which we are governed.” 523 U. S., at 79 (empha-
sis added).
   It takes considerable audacity to read these comments as
committing the Court to a position on deep philosophical
questions about the meaning of language and their implica-
tions for the interpretation of legal rules. These comments
are better understood as stating mundane and uncontrover-
sial truths. Who would argue that a statute applies only to
the “principal evils” and not lesser evils that fall within the
plain scope of its terms? Would even the most ardent “pur-
posivists” and fans of legislative history contend that
congressional intent is restricted to Congress’s “principal
concerns”?
   Properly understood, Oncale does not provide the slight-
est support for what the Court has done today. For one
thing, it would be a wild understatement to say that dis-
crimination because of sexual orientation and transgender
status was not the “principal evil” on Congress’s mind in
1964. Whether we like to admit it now or not, in the think-
ing of Congress and the public at that time, such discrimi-
nation would not have been evil at all.
   But the more important difference between these cases
and Oncale is that here the interpretation that the Court
adopts does not fall within the ordinary meaning of the stat-
utory text as it would have been understood in 1964. To
38             BOSTOCK v. CLAYTON COUNTY ALITO, J., dissenting

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