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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interpretive approach is supported by the interpretive approach em-
ployed by the Court in its landmark decision in Brown v. Board of Edu-
cation, 347 U. S. 483 (1954). See Brief for Anti-Discrimination Scholars
as Amici Curiae 4. That suggestion is incorrect. Brown is a correct de-
cision as a matter of original public meaning. There were two analytical
components of Brown. One issue was the meaning of “equal protection.”
The Court determined that black Americans—like all Americans—have
an individual equal protection right against state discrimination on the
basis of race. (That point is also directly made in Bolling v. Sharpe, 347
U. S. 497, 499–500 (1954).) Separate but equal is not equal. The other
issue was whether that racial nondiscrimination principle applied to
public schools, even though public schools did not exist in any compara-
ble form in 1868. The answer was yes. The Court applied the equal
protection principle to public schools in the same way that the Court ap-
plies, for example, the First Amendment to the Internet and the Fourth
Amendment to cars.
      This case raises the same kind of inquiry as the first question in
Brown. There, the question was what equal protection meant. Here, the
question is what “discriminate because of sex” means. If this case raised
the question whether the sex discrimination principle in Title VII applied
to some category of employers unknown in 1964, such as to social media
companies, it might be a case in Brown’s second category, akin to the
question whether the racial nondiscrimination principle applied to public
schools. But that is not this case.
                  Cite as: 590 U. S. ____ (2020)             25 KAVANAUGH, J., dissenting

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