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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judges.9
   The unanimity of those 30 federal judges shows that the
question as a matter of law, as compared to as a matter of
policy, was not deemed close. Those 30 judges realized a
seemingly obvious point: Title VII is not a general grant of
authority for judges to fashion an evolving common law of
equal treatment in the workplace. Rather, Title VII identi-
fies certain specific categories of prohibited discrimination.
And under the separation of powers, Congress—not the
courts—possesses the authority to amend or update the
law, as Congress has done with age discrimination and dis-
ability discrimination, for example.
   So what changed from the situation only a few years ago
when 30 out of 30 federal judges had agreed on this ques-
tion? Not the text of Title VII. The law has not changed.
Rather, the judges’ decisions have evolved.
   To be sure, the majority opinion today does not openly
profess that it is judicially updating or amending Title VII.
Cf. Hively, 853 F. 3d, at 357 (Posner, J., concurring). But
the majority opinion achieves the same outcome by seizing
on literal meaning and overlooking the ordinary meaning of
the phrase “discriminate because of sex.” Although the ma-
jority opinion acknowledges that the meaning of a phrase
and the meaning of a phrase’s individual words could differ,
it dismisses phrasal meaning for purposes of this case. The
majority opinion repeatedly seizes on the meaning of the
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   9 See Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 258–

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