But none of these contentions about what the employers think the law was meant to do, or should do, allow us to ignore the law as it is. Northwestern Law has a unique connection to Bostock v. Clayton County. Justice Scalia was perfectly clear on this point. Many Justices of this Court, both past and present, have not espoused or practiced a method of statutory interpretation that is limited to the analysis of statutory text. Ibid. 245 There is not a notion more generally adopted, that that vegetables have the distinction of sexes. With that, the employers are left to abandon their concern for expected applications and fall back to the last line of defense for all failing statutory interpretation arguments: naked policy appeals. That is not the issue here. See, e.g., Barnes v. Costle, 561 F.2d 983, 990 (CADC 1977). Certainly nothing in the meager legislative history of this provision suggests it was meant to be read narrowly. School Bd., 822 F.3d 709, 715 (CA4 2016), vacated and remanded, 580 U. S. ___ (2017); Adams v. School Bd. In 1964, individuals who were known to be homosexual could not obtain security clearances, and any who possessed clearances were likely to lose them if their orientation was discovered. To be sure, as Judge Lynch appropriately recognized, it is “understandable” that those seeking legal protection for gay people “search for innovative arguments to classify workplace bias against gays as a form of discrimination that is already prohibited by federal law. 430 It is much frequented by the fair sex. 6, 1991). Long before Title VII was adopted, many pioneering state and federal laws had used language substantively indistinguishable from Title VII’s critical phrase, “discrimination because of sex.” For example, the California Constitution of 1879 stipulated that no one, “on account of sex, [could] be disqualified from entering upon or pursuing any lawful business, vocation, or profession.” Art. ); and that Title VII protects individual rights, not group rights. It also rewrites history. Does the Court really think that Title VII prohibits discrimination on all these grounds? But “ ‘the fact that [a statute] has been applied in situations not expressly anticipated by Congress’ ” does not demonstrate ambiguity; instead, it simply “ ‘demonstrates [the] breadth’ ” of a legislative command. 5. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach. on the basis of . Northwestern Law has a unique connection to Bostock v. Clayton County. II. Ann. This Court normally interprets a statute in accord with the ordinary public meaning of its terms at the time of its enactment. (W. de. When she got the job, Ms. Stephens presented as a male. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. 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. The Bostock ruling made two momentous decisions; (1) it read “sexual orientation” into Title VII of the 1964 Civil Rights Act, and (2) it did the same for “gender identity.” So far in this series I’ve focused on the former. §20–606(a)(1)(i) (Supp. 20 U. S. C. §1681(a) (Title IX); However framed, the employer’s logic impermissibly seeks to displace the plain meaning of the law in favor of something lying beyond it. Rather, Title VII identifies certain specific categories of prohibited discrimination. See ibid. And “the ordinary meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” University of Tex. Exec. In Mr. Bostock’s case, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay and so his suit could be dismissed as a matter of law. In recent use often with more explicit notion: The sum of those differences in the structure and function of the reproductive organs on the ground of which beings are distinguished as male and female, and of the other physiological differences consequent on these; the class of phenomena with which these differences are concerned. E vij b, Ye magnificency & liberalitie of that gentle sex. See Dothard v. Rawlinson, §2000e–2(a)(1). The Court’s unanimous decision in Oncale was thoroughly unremarkable. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep. Over time, though, the breadth of the statutory language proved too difficult to deny.  The combined Bostock and Altitude Express cases drew numerous amicus curiae briefs. And “it is ultimately the provisions of ” those legislative commands “rather than the principal concerns of our legislators by which we are governed.” Oncale, 523 U. S., at 79; see also A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 101 (2012) (noting that unexpected applications of broad language reflect only Congress’s “presumed point [to] produce general coverage—not to leave room for courts to recognize ad hoc exceptions”). A model employee arrives and introduces a manager to Susan, the employee’s wife. Often in life and law two but-for factors combine to yield a result that could have also occurred in some other way. sexual orientation,” etc. . akin to L. secare to cut. This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds. 449 U.S. 424, 430 (1981). See Franklin, 125 Harv. The “simple test” thus overlooks that it is really the applicant’s bucking of 1950s gender roles, not her sex, doing the work. If the usual evidence indicates that a statutory phrase bears an ordinary meaning different from the literal strung-together definitions of the individual words in the phrase, we may not ignore or gloss over that discrepancy. 531 U.S. 457, 468 (2001). Ante, at 19 (“homosexuality and transgender status are distinct concepts from sex”). Clayton County, Geor- Did the Court in all of those sexual orientation cases just miss that obvious answer—and overlook the fact that sexual orientation discrimination is actually a form of sex discrimination? Such evidence is relevant to prove discrimination because of sex, and it may be convincing where the trait that is inconsistent with the stereotype is one that would be tolerated and perhaps even valued in a person of the opposite sex. We must ask whether Americans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. See Hively v. Ivy Tech Community College of Ind., 853 F.3d 339, 363 (CA7 2017) (Sykes, J., dissenting). Sometimes small gestures can have unexpected consequences. (emphasis added). 1954). Speaker Nancy Pelosi said that the ruling "secures critical protections for LGBT Americans across the country". c. The fair(er), gentle(r), soft(er), weak(er) sex; the devout sex; the second sex; † the woman sex: the female sex, women. VII, §10 (emphasis added); see also §16 (the “university shall be equally open to students of both sexes”). Bostock v. Clayton County: Historical Perspectives and Implications for Employment Rights and Responsibilities [CC] The Supreme Court's landmark decision in Bostock v. Clayton County, Georgia interprets Title VII of the Civil Rights Act to prohibit discrimination in the workplace on the basis of an employee's LGBTQ status. The Court’s excuse for ignoring everything other than the bare statutory text is that the text is unambiguous and therefore no one can reasonably interpret the text in any way other than the Court does. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. They contend that discrimination “because of sexual orientation” and discrimination “because of sex” are actually not separate categories of discrimination after all. . 548 U.S. 53, 59 (2006). But given contextual clues and “everyday speech” at the time of the Act’s adoption in 1919, this Court concluded that “vehicles” in that statute included only things “moving on land,” not airplanes too. b. to increase the appeal of; to make more interesting, attractive, or exciting: We’ve decided to sex up the movie with some battle scenes. of Ed. sex, v. t. To determine the sex of, as skeletal remains. Reframing the additional causes in today’s cases as additional intentions can do no more to insulate the employers from liability. . v. Murphy, Ante, at 5. See Beauty x. In his dissent, Alito asserted that at the time of the crafting of the Civil Rights Act in 1964 the concepts of sexual orientation and transgender would have been unknown and thus Congress's language should not be implied to cover these facets. 2019) (prohibiting discrimination because of “sex, sexual orientation,” etc. But, the Court unanimously explained, it is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Ibid. Texas v. Johnson, 429 U.S. 125, 143 (1976), the legislative history of Title VII’s prohibition of sex discrimination is brief, but it is nevertheless revealing. because of . The same holds here. To “discriminate against” a person, then, would seem to mean treating that individual worse than others who are similarly situated. In addition, the EEOC may make its own determination on cases rather than taking these to court. After all, if two employees are identical in every respect but sex, and the employer fires only one, what other reason could there be? Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. The absurdity canon, properly understood, is “an implementation of (rather than . 2). The fact that female sex and attraction to women can also get an employee fired does no more than show the same outcome can be achieved through the combination of different factors. As Justice Scalia explained, “the good textualist is not a literalist.” A. Scalia, A Matter of Interpretation 24 (1997). 2018) (per curiam), that Title VII did not prohibit employers from firing employees because of their sexual orientation. sex.” This definition should inform the meaning of “because of sex” in Title VII more generally. Maybe the law concerns itself simply with ensuring that employers don’t treat women generally less favorably than they do men. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. But just as labels and additional intentions or motivations didn’t make a difference in Manhart or Phillips, they cannot make a difference here. 237 These being very evident Proofs of a necessity of two Sexes in Plants as well as in Animals. ); Webster’s Third New International Dictionary 2081 (1966)). Code §§8–107(1), (4), (5) (2020) (making it unlawful to discriminate on the basis of “gender” in employment, housing, and public accommodations); cf. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. First, courts must follow ordinary meaning, not literal meaning.  Dan McLaughlin of the National Review postulated that Dixiecrat Howard W. Smith's insertion of the word "sex" in Title VII of the Civil Rights Act of 1964 had inadvertently protected sexual orientation and gender identity from employment discrimination. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive. 1567 Maplet Gr. Code §49.60.180 (2008) (prohibiting discrimination because of “sex, . Indeed, the 2016 advisory letter issued by the Department of Justice took the position that under Title IX schools “must allow transgender students to access housing consistent with their gender identity.” Dear Colleague Letter 4. A regulation allows single-sex teams, 34 CFR §106.41(b) (2019), but the statute itself would of course take precedence. , Among several provisions in the law is Title VII, which covers equal employment opportunities. Catholic League president Bill Donohue blasted this week’s Supreme Court decision in Bostock v.Clayton County, saying the majority opinion written by … Along the way, we change his sexual orientation too (from homosexual to heterosexual). In Bostock v. Clayton County, Georgia, the U.S. Court of Appeals for the Eleventh Circuit held that it was bound by a prior case finding that “discharge for homosexuality is not protected by Title VII.” The U.S. Court of Appeals for the Second Circuit, sitting en banc in Zarda v. June 23, 2020. 408 U.S. 238, 467 (1972) (Rehnquist, J., dissenting). Such claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs. In Bostock v. Clayton County, Georgia, a landmark case for gay and transgender rights, the Supreme Court resolved a circuit split and bridged a long-standing administrative agency divide. 586 U. S., at ___–___ (slip op., at 6–9). In Manhart, the employer intentionally required women to make higher pension contributions only to fulfill the further purpose of making things more equitable between men and women as groups. 10450, §8(a)(1)(iii), 3 CFR 938 (1949–1953 Comp.). The Office of Personnel Management is the federal agency that administers and enforces personnel rules across the Federal Government. There was sex discrimination in Phillips, because women with children were treated disadvantageously compared to men with children. American Heritage Dictionary 1605 (5th ed. post, at 7–8 (Alito, J., dissenting); post, at 13–15 (Kavanaugh, J., dissenting). 548 U.S. 291, 297–298 (2006); Jama v. Immigration and Customs Enforcement, iv.  Similar claims may be brought under the Fair Housing Act. 5. coitus. See C. Whalen & B. Whalen, The Longest Debate: A Legislative History of the 1964 Civil Rights Act 115–118 (1985). In more recent legislation, when Congress has wanted to reach acts committed because of sexual orientation or gender identity, it has referred to those grounds by name. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status. Section 7(b) of H. R. 5 strikes the term “sex” in When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies). “Until about 1991, when agencies began to change their security policies and practices regarding sexual orientation, there were a number of documented cases where defense civilian or contractor employees’ security clearances were denied or revoked because of their sexual orientation.” GAO, Security Clearances, at 2. How do we account for those who change their minds over time, after learning new facts or hearing a new argument? Bostock claimed he was fired in 2013 because he is gay. This is a variant of an argument found in many of the briefs filed in support of the employees and in the lower court decisions that agreed with the Court’s interpretation. It was therefore easy to envision a day, likely just in the next few years, when the House and Senate took historic votes on a bill that would prohibit employment discrimination on the basis of sexual orientation. 555 U.S. 379, 387 (2009); Connecticut Nat. It takes considerable audacity to read these comments as committing the Court to a position on deep philosophical questions about the meaning of language and their implications for the interpretation of legal rules. , The EEOC has used past case law and its evaluation of discrimination cases brought before it to establish that LGBT discrimination is unlawful under the context of the Civil Rights Act. All we can know for certain is that speculation about why a later Congress declined to adopt new legislation offers a “particularly dangerous” basis on which to rest an interpretation of an existing law a different and earlier Congress did adopt. b Psychoanalysis. Much of the plaintiff ’s evidence in Price Waterhouse was of this nature. But like the employers before us today, this employer would say not so fast. When a new application emerges that is both unexpected and important, they would seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce the plain terms of the law in the meantime. (1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fired for being gay or transgender and not because of sex. ii, He has a strange penchant to grow fond of me, in spite of his aversion to the sex. . The employers illustrate their concern with an example. The implications of this decision have the potential to be far reaching. 18–107, p. 5. We cannot infer with any certainty, as the hypothetical is apparently meant to suggest, that the employer was motivated even in part by sex. as, Brief for Scholars Who Study the LGB Population as, Brief for American Psychological Association et al. And the ordinary meaning of the phrase “discriminate because of sex” does not encompass sexual orientation discrimination. 8 U. S. C. §1422 (emphasis added). Since then, Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected. Take a few examples: The Court recognized that beans may be seeds “in the language of botany or natural history,” but concluded that beans are not seeds “in commerce” or “in common parlance.” Robertson v. Salomon, See ante, at 5–9, 17, 24–26. In Philips, the employer treated women with young children less favorably than men with young children. . 20 U. S. C. §1681(a). 562 U.S. 562, 578 (2011). H. R. 5331, 116th Cong., 1st Sess., §§4(b), (c) (2019). § 6. The plaintiff, Gerald Bostock, was fired after he expressed interest in a gay softball league at work. (1888) 429 What is the true type of social (moral) action in matters of sex? If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion? “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. 176 Persons of the fairer Sex. Bostock v. Clayton: Judicial Overreach. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. But none of this is the law we have. So, for example, when it comes to homosexual employees, male sex and attraction to men are but-for factors that can combine to get them fired. 523 U.S. 75 (1998). 2a. Anyone who examines those definitions can see that the primary definition in every one of them refers to the division of living things into two groups, male and female, based on biology, and most of the definitions further down the list are the same or very similar. If only the Court would live by them. If anything, Congress has moved in the opposite direction, supplementing Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait like sex was a “motivating factor” in a defendant’s challenged employment practice. 47, at 326 (citing Montesquieu). 327, prohibited all “discrimination . These decisions do not carry the weight of case law, but the Supreme Court does consider the weight of the EEOC opinions as the EEOC "constitute[s] a body of experience and informed judgment to which courts and litigants may properly resort for guidance". by itself does not constitute a psychiatric disorder”); see also APA, Diagnostic and Statistical Manual of Mental Disorders 281–282 (3d ed. See 47 N. Y. C. R. R. §2–06(a) (2020) (stating that a “deliberate refusal to use an individual’s self-identified name, pronoun and gendered title” is a violation of N. Y. C. Admin. Times, Nov. 21, 1966, p. 1, col. 8; see also J. Meyerowitz, How Sex Changed 218–220 (2002). See, e.g., Anonymous v. Macy, 398 F.2d 317, 318 (CA5 1968) (affirming dismissal of postal employee for homosexual acts). I. xxxv. The first of these is essentially that sexual orientation and gender identity are closely related to sex. The bills did not define sex discrimination to encompass sexual orientation discrimination.. Notably, Title VII recognizes that in light of history distinctions on the basis of race are always disadvantageous, but it permits certain dis-tinctions based on sex. b. “[S]tatutes convey meaning only because members of a relevant linguistic community apply shared background conventions for understanding how particular words are used in particular contexts.” Manning, The Absurdity Doctrine, 116 Harv. 130 U.S. 412, 414 (1889). In 1961, President Kennedy ordered the Civil Service Commission to review and modify personnel policies “to assure that selection for any career position is hereinafter made solely on the basis of individual merit and fitness, without regard to sex.” He concurrently established a “Commission on the Status of Women” and directed it to recommend policies “for overcoming discriminations in government and private employment on the basis of sex.” Exec. First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, See A. Scalia, A Matter of Interpretation 22, (1997). It destabilizes the rule of law and thwarts democratic accountability. And that is all Title VII has ever demanded to establish liability. Examples abound. of Ed., 1 Cal. Rather, the proposed bills are telling because they, like the enacted laws, further demonstrate the widespread usage of the English language in the United States: Sexual orientation discrimination is distinct from, and not a form of, sex discrimination. There is no dispute that discrimination against an individual employee based on that person’s sex cannot be justified on the ground that the employer’s treatment of the average employee of that sex is at least as favorable as its treatment of the average employee of the opposite sex. Or alternatively, the plaintiffs must establish that the ordinary meaning of “discriminate because of sex”—not just the literal meaning—encompasses sexual orientation discrimination. Hively, 853 F. 3d, at 357 (Posner, J., concurring). That’s a legitimate concern. 1667 Milton P. L. I. No one disagrees. This Court emphatically rejected that view, explaining that, “in the context of an unambiguous statutory text,” whether a specific application was anticipated by Congress “is irrelevant.” Id., at 212. When an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex. Apr. They warn, too, about consequences that might follow a ruling for the employees. And that is exactly how this Court has always approached Title VII. But because nothing in our approach to these cases turns on the outcome of the parties’ debate, and because the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female. But that assertion is tough to accept. ); Mass. After all, covering male employees may not have been the intent of some who voted for the statute. When Congress chooses distinct phrases to accomplish distinct purposes, and does so over and over again for decades, we may not lightly toss aside all of Congress’s careful handiwork. sexual orientation,” etc. One’s identity as either female or male. 107Stat. as, Brief for Petitioner in No. Southwestern Medical Center v. Nassar, 1711 Addison Spect. However, neither Representative Smith nor any other Member said one word about the possibility that the prohibition of sex discrimination might have that meaning. 11, 2020) (state health plan’s exclusion of coverage for sex reassignment procedures); Complaint in Gore v. Lee, No. Hist.  In 2015, the EEOC ruled in Baldwin v. Foxx that discrimination on the basis of sexual orientation is also prohibited in employment under Title VII, on the exact same basis as in Macy. Both common parlance and common legal usage treat sex discrimination and sexual orientation discrimination as two distinct categories of discrimination—back in 1964 and still today. Either they can say that literal meaning overrides ordinary meaning when the two conflict. III. See Burlington N. & S. F. R. Co. v. White, Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, (Harris Funeral Homes), in which the Sixth Circuit found Title VII also covered transgender employment discrimination, set the stage for the Supreme Court's decision in Bostock. and that determine agreement with or the. That doesn’t change just because you also would have opened the window had it been warm outside and cold inside. . As noted, other than prohibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” So for Mr. Bostock, the question should be whether he would’ve been fired if he were a woman attracted to women. Instead of avoiding Title VII exposure, this employer doubles it. Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a distant and utterly unknown civilization. If we applied Title VII’s plain text only to applications some (yet-to-be-determined) group expected in 1964, we’d have more than a little law to overturn. " Alito further stated that "even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute's terms were understood to mean at that time. This lesson is obviously true but proves nothing. J. Kennedy, Statement by the President on the Establishment ofthe President’s Commission on the Status of Women 3 (Dec. 14, 1961) (emphasis added), https://www.jfklibrary.org/asset-viewer/archives/JFKPOF/093/JFKPOF-093-004. When a qualified woman applies for a mechanic position and is denied, the “simple test” immediately spots the discrimination: A qualified man would have been given the job, so sex was a but-for cause of the employer’s refusal to hire. It is not biological sex, attraction to men, or attraction to women. It is irrelevant what an employer or others might call the discriminatory practice; that another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from that assigned at birth, might play an important role in the employer’s decision; or that an employer could refuse to hire a gay or transgender individual without learning that person’s sex. 1642 H. More Song of Soul I. III. v. ix. See Price Waterhouse, 490 U. S., at 251. Of course not.” Ante, at 18. as. Cf. On the other hand, if the employer’s objection is sexual orientation or homosexuality, the two employees differ in two respects, and it cannot be inferred that the disparate treatment was due even in part to sex. Harris Funeral Homes Inc., 884 F.3d 560 (6th Cir. Few facts are needed to appreciate the legal question we face. Sexual intercourse. Similarly, the three Circuits to address the application of Title VII to transgender persons had all rejected the argument that it covered discrimination on this basis. For the sake of argument, I will assume that firing someone because of their sexual orientation may, as a very literal matter, entail making a distinction based on sex. Fond mistake today: legislation may intersect with religious liberties are nothing new ; even! Rooted reason why discrimination on either of the Court tries to avoid that conclusion VII forbids employee was but-for! 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