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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statute’s individual terms, mechanically puts them back to-
gether, and generates an interpretation of the phrase “dis-
criminate because of sex” that is literal. See ante, at 5–9,
17, 24–26. But to reiterate, that approach to statutory in-
terpretation is fundamentally flawed. Bedrock principles of
statutory interpretation dictate that we look to ordinary
meaning, not literal meaning, and that we likewise adhere
to the ordinary meaning of phrases, not just the meaning of
words in a phrase. And the ordinary meaning of the phrase
“discriminate because of sex” does not encompass sexual
orientation discrimination.
   The majority opinion deflects that critique by saying that
courts should base their interpretation of statutes on the
text as written, not on the legislators’ subjective intentions.
Ante, at 20, 23–30. Of course that is true. No one disagrees.
It is “the provisions of our laws rather than the principal
concerns of our legislators by which we are governed.” On-
cale v. Sundowner Offshore Services, Inc., 523 U. S. 75, 79
(1998).
   But in my respectful view, the majority opinion makes a
fundamental mistake by confusing ordinary meaning with
subjective intentions. To briefly explain: In the early years
after Title VII was enacted, some may have wondered
whether Title VII’s prohibition on sex discrimination pro-
tected male employees. After all, covering male employees
may not have been the intent of some who voted for the stat-
ute. Nonetheless, discrimination on the basis of sex against
women and discrimination on the basis of sex against men
are both understood as discrimination because of sex (back
in 1964 and now) and are therefore encompassed within Ti-
tle VII. Cf. id., at 78–79; see Newport News Shipbuilding
& Dry Dock Co. v. EEOC, 462 U. S. 669, 682–685 (1983). So
too, regardless of what the intentions of the drafters might
have been, the ordinary meaning of the law demonstrates
that harassing an employee because of her sex is discrimi-
nating against the employee because of her sex with respect
24                 BOSTOCK v. CLAYTON COUNTY KAVANAUGH, J., dissenting

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