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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Like the relevant federal statutes, the 1998 Clinton Ex-
ecutive Order expressly added sexual orientation as a new,
separately prohibited form of discrimination. As Judge
Lynch cogently spelled out, “the Clinton Administration did
not argue that the prohibition of sex discrimination in” the
prior 1969 Executive Order “already banned, or henceforth
would be deemed to ban, sexual orientation discrimina-
tion.” 883 F. 3d, at 152, n. 22 (dissenting opinion). In short,
President Clinton’s 1998 Executive Order indicates that the
Executive Branch, like Congress, has long understood sex-
ual orientation discrimination to be distinct from, and not
a form of, sex discrimination.
   Federal regulations likewise reflect that same under-
standing. The Office of Personnel Management is the fed-
eral agency that administers and enforces personnel rules
across the Federal Government. OPM has issued regula-
tions that “govern . . . the employment practices of the Fed-
eral Government generally, and of individual agencies.” 5
CFR §§300.101, 300.102 (2019). Like the federal statutes
and the Presidential Executive Orders, those OPM regula-
tions separately prohibit sex discrimination and sexual ori-
entation discrimination.
   The States have proceeded in the same fashion. A major-
ity of States prohibit sexual orientation discrimination in
18                 BOSTOCK v. CLAYTON COUNTY KAVANAUGH, J., dissenting

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