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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On occasion, it can be difficult for judges to assess ordi-
nary meaning. Not here. Both common parlance and com-
mon legal usage treat sex discrimination and sexual orien-
tation discrimination as two distinct categories of
discrimination—back in 1964 and still today.
As to common parlance, few in 1964 (or today) would de-
scribe a firing because of sexual orientation as a firing be-
cause of sex. As commonly understood, sexual orientation
discrimination is distinct from, and not a form of, sex dis-
crimination. The majority opinion acknowledges the com-
mon understanding, noting that the plaintiffs here proba-
bly did not tell their friends that they were fired because of
their sex. Ante, at 16. That observation is clearly correct.
In common parlance, Bostock and Zarda were fired because
they were gay, not because they were men.
Contrary to the majority opinion’s approach today, this
Court has repeatedly emphasized that common parlance
matters in assessing the ordinary meaning of a statute, be-
cause courts heed how “most people” “would have under-
stood” the text of a statute when enacted. New Prime Inc.
v. Oliveira, 586 U. S. ___, ___–___ (2019) (slip op., at 6–7);
see Henson v. Santander Consumer USA Inc., 582 U. S. ___,
___ (2017) (slip op., at 4) (using a conversation between
friends to demonstrate ordinary meaning); see also Wiscon-
sin Central Ltd. v. United States, 585 U. S. ___, ___–___
(2018) (slip op., at 2–3) (similar); AT&T, 562 U. S., at 403–
404 (similar).
Consider the employer who has four employees but must
fire two of them for financial reasons. Suppose the four em-
ployees are a straight man, a straight woman, a gay man,
and a lesbian. The employer with animosity against women
(animosity based on sex) will fire the two women. The em-
ployer with animosity against gays (animosity based on sex-
ual orientation) will fire the gay man and the lesbian.
Those are two distinct harms caused by two distinct biases
that have two different outcomes. To treat one as a form of
Cite as: 590 U. S. ____ (2020) 13 KAVANAUGH, J., dissenting

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