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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considered the question. All 30 judges said no, based on the
text of the statute. 30 out of 30.
   But in the last few years, a new theory has emerged. To
end-run the bedrock separation-of-powers principle that
courts may not unilaterally rewrite statutes, the plaintiffs
here (and, recently, two Courts of Appeals) have advanced
a novel and creative argument. They contend that discrim-
ination “because of sexual orientation” and discrimination
“because of sex” are actually not separate categories of dis-
crimination after all. Instead, the theory goes, discrimina-
tion because of sexual orientation always qualifies as dis-
crimination because of sex: When a gay man is fired
because he is gay, he is fired because he is attracted to men,
even though a similarly situated woman would not be fired
just because she is attracted to men. According to this the-
ory, it follows that the man has been fired, at least as a lit-
eral matter, because of his sex.
   Under this literalist approach, sexual orientation dis-
crimination automatically qualifies as sex discrimination,
and Title VII’s prohibition against sex discrimination there-
fore also prohibits sexual orientation discrimination—and
actually has done so since 1964, unbeknownst to everyone.
Surprisingly, the Court today buys into this approach.
Ante, at 9–12.
   For the sake of argument, I will assume that firing some-
one because of their sexual orientation may, as a very literal
matter, entail making a distinction based on sex. But to
prevail in this case with their literalist approach, the plain-
tiffs must also establish one of two other points. The plain-
tiffs must establish that courts, when interpreting a stat-
ute, adhere to literal meaning rather than ordinary
meaning. Or alternatively, the plaintiffs must establish
that the ordinary meaning of “discriminate because of
sex”—not just the literal meaning—encompasses sexual
orientation discrimination. The plaintiffs fall short on both
counts.
6               BOSTOCK v. CLAYTON COUNTY KAVANAUGH, J., dissenting

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