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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discrimination is distinct from, and not a form of, sex dis-
crimination.
  In sum, all of the usual indicators of ordinary meaning—
common parlance, common usage by Congress, the practice
in the Executive Branch, the laws in the States, and the
decisions of this Court—overwhelmingly establish that sex-
ual orientation discrimination is distinct from, and not a
form of, sex discrimination. The usage has been consistent
across decades, in both the federal and state contexts.
  Judge Sykes summarized the law and language this way:
“To a fluent speaker of the English language—then and
now—. . . discrimination ‘because of sex’ is not reasonably
understood to include discrimination based on sexual orien-
tation, a different immutable characteristic. Classifying
people by sexual orientation is different than classifying
them by sex. The two traits are categorically distinct and
widely recognized as such. There is no ambiguity or vague-
ness here.” Hively, 853 F. 3d, at 363 (dissenting opinion).
  To tie it all together, the plaintiffs have only two routes
to succeed here. Either they can say that literal meaning
overrides ordinary meaning when the two conflict. Or they
can say that the ordinary meaning of the phrase “discrimi-
nate because of sex” encompasses sexual orientation dis-
crimination. But the first flouts long-settled principles of
statutory interpretation. And the second contradicts the
widespread ordinary use of the English language in Amer-
ica.
                              II
  Until the last few years, every U. S. Court of Appeals to
address this question concluded that Title VII does not pro-
hibit discrimination because of sexual orientation. As noted
above, in the first 10 Courts of Appeals to consider the is-
sue, all 30 federal judges agreed that Title VII does not pro-
hibit sexual orientation discrimination. 30 out of 30
22                BOSTOCK v. CLAYTON COUNTY KAVANAUGH, J., dissenting

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