This Court has explained many times over many years that, when the meaning of the statute’s terms is plain, our job is at an end. 433 U.S. 321, 334 (1977). Oncale, 523 U. S., at 79–80. Where possible, we also strive to interpret statutes so as not to create undue surplusage. Soon, he was fired for conduct “unbecoming” a county employee. That is an invitation that no court should ever take up. Times, Sept. 16, 1921, p. 10. ⸭ tr.v. In 2012, the EEOC ruled in Macy v. Holder that discrimination on the basis of gender identity is a form of sex stereotyping, and thus prohibited in employment as a form of discrimination on the basis of sex under Title VII of the Civil Rights Act of 1964. These comments are better understood as stating mundane and uncontroversial truths. cviii, Benign Ceruleans of the second sex! The logic of the Court’s decision could even affect professional sports. One could easily contend that legislators only intended expected applications or that a statute’s purpose is limited to achieving applications foreseen at the time of enactment. Bostock’s brief and those of amici supporting his position contend that sexual orientation is “a sex-based consideration.”[12] Other briefs state that sexual orientation is “a function of sex”[13] or is “intrinsically related to sex.”[14] Similarly, Stephens argues that sex and gender identity are necessarily intertwined: “By definition, a transgender person is someone who lives and identifies with a sex different than the sex assigned to the person at birth.”[15], It is curious to see this argument in an opinion that purports to apply the purest and highest form of textualism because the argument effectively amends the statutory text. 1671—Samson 774 It was a weakness In me, but incident to all our sex. Without strong evidence to the contrary (and there is none here), our job is to ascertain and apply the “ordinary meaning” of the statute. 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. The Court’s decision has broad implications for employers and their employment counsel. Title VII makes it unlawful for employers to discriminate because of “race, color, religion, sex, or national origin.” 2018) (per curiam), that Title VII did not prohibit employers from firing employees because of their sexual orientation. 349 When persons of different sexes walk together, the woman always follows the man. 42 U. S. C. §2000e–2(m). So, for example, if a car accident occurred both because the defendant ran a red light and because the plaintiff failed to signal his turn at the intersection, we might call each a but-for cause of the collision. §§13202, 13207, 13209, 13218, 13255 (West 1960). And as with the discrimination we consider today, many federal judges long accepted interpretations of Title VII that excluded these situations. 245 There is not a notion more generally adopted, that that vegetables have the distinction of sexes. Altitude Express fired Donald Zarda days after he mentioned being gay. 130 U.S. 412, 414 (1889). Title VII prohibits discrimination based on five specified grounds, and neither sexual orientation nor gender identity is on the list. H. R. 3685, 110th Cong., 1st Sess. . Would even the most ardent “purposivists” and fans of legislative history contend that congressional intent is restricted to Congress’s “principal concerns”? In all those dictionaries, the primary definition of “sex” was essentially the same as that in the then-most recent edition of Webster’s New International Dictionary 2296 (def. 1790 Smellie Philos. The first of these is essentially that sexual orientation and gender identity are closely related to sex. In other words, a but-for test directs us to change one thing at a time and see if the outcome changes. But can it be seriously argued that one of the aims of Title VII is to outlaw employment discrimination against employees, whether heterosexual or homosexual, who engage in necking? V. xxvi, A black old neutral personage Of the third sex stept up. This definition should inform the meaning of “because of sex” in Title VII more generally. If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.[5]. L sexus; prob. An additional argument made in passing also fights the text of Title VII and the policy it reflects. In addition, the EEOC may make its own determination on cases rather than taking these to court. Ante, at 9–12. Maybe most intuitively, the employers assert that discrimination on the basis of homosexuality and transgender status aren’t referred to as sex discrimination in ordinary conversation. [50] Similar claims may be brought under the Fair Housing Act. I. See Prescott v. Rady Children’s Hospital San Diego, 265 F. Supp. A “cold war” could literally mean any wintertime war, but in common parlance it signifies a conflict short of open warfare. between male and female most directly associated with, leading up to, substituting for, or resulting from genital union 4: the phenomena of sexual instincts and their manifestations ; specif: sexual intercourse, 2sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic being) —compare autosexing 2 a: to increase the sexual appeal or attraction of—usu. W. xcix, The men of Asia behave with more deference to the sex than you seem to imagine. If every single living American had been surveyed in 1964, it would have been hard to find any who thought that discrimination because of sex meant discrimination because of sexual orientation––not to mention gender identity, a concept that was essentially unknown at the time. [48] This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports. of Ed., 249 Cal. discrimination ‘because of sex’ is not reasonably understood to include discrimination based on sexual orientation, a different immutable characteristic. The employers, however, advocate nothing like that here. Southwestern Medical Center v. Nassar, Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery. [18] “It would require absolute blindness to the history of racial discrimination in this country not to understand what is at stake in such cases . v. ix. Rec. The Court reasons that if the employer fires the man but not the woman, the employer is necessarily motivated by the man’s biological sex. Cf. 2a. 571 U.S. 204, 211–212 (2014). . As framed in 1921, this proposal forbade all “political, civil or legal disabilities or inequalities on account of sex, [o]r on account of marriage.” Women Lawyers Meet: Representatives of 20 States Endorse Proposed Equal Rights Amendment, N. Y. Under the Constitution's separation of powers, however, I believe that it was Congress's role, not this Court's, to amend Title VII. First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. Ibid. ; see also Continental Can Co. v. Chicago Truck Drivers, Helpers and Warehouse Workers Union (Independent) Pension Fund, 916 F.2d 1154, 1157 (CA7 1990) (“You don’t have to be Ludwig Wittgenstein or Hans-Georg Gadamer to know that successful communication depends on meanings shared by interpretive communities”). §229.08(16) (1961), and this law was used to target homosexual conduct. See ante, at 2 (When an employer “fires an individual for being homosexual or transgender,” “[s]ex plays a necessary and undisguisable role in the decision”); ante, at 9 (“[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex”); ante, at 11 (“[W]hen an employer discriminates against homosexual or transgender employees, [the] employer . In 2013, Bostock began participating in a gay recreational softball league. 19, §711 (2018 Cum. – v.t. The Court tries to cloud the issue by spending many pages discussing matters that are beside the point. The Supreme Court of the United States released its long-awaited decision in the case of Bostock v.Clayton County, Georgia over whether sexual orientation and gender identity are included in the definition of “sex” in Title VII of the federal non-discrimination laws. Sedima, S. P. R. L. v. Imrex Co., post, at 7–8 (Alito, J., dissenting); post, at 13–15 (Kavanaugh, J., dissenting). 4–69, but the House of Representatives vetoed the bill, H. Res. So we need to hold that second trait constant: Instead of comparing the disappointed female applicant to a man who applied for the same position, the employer would say, we should compare her to a man who applied to be a secretary. Only the written word is the law, and all persons are entitled to its benefit. [21][20] Thus the Eleventh Circuit, on the one hand, and the Second and Seventh Circuits, on the other, were divided on the question of the interpretation of Title VII. 1382 Wyclif Gen. vi. The question is whether Congress did that in 1964. a 1631 Donne Songs & Sonn., The Printrose Poems 1912 I. An employer violates Title VII when it intentionally fires an individual employee based in part on sex regardless of whether other factors besides the plaintiff's sex contributed to the decision or whether the employer treated women as a group the same when compared to men as a group. . 1894 H. Drummond Ascent of Man 317 The sex-distinction slowly gathers definition. In FCC v. AT&T Inc., [56] Similar claims have been brought under the Affordable Care Act (ACA), which broadly prohibits sex discrimination in the provision of healthcare.[57]. of Ed. What are these consequences anyway? An employer can have a policy that says: “We do not hire gays, lesbians, or transgender individuals.” And an employer can implement this policy without paying any attention to or even knowing the biological sex of gay, lesbian, and transgender applicants. Gorsuch's majority opinion, Skrmetti argues, means that this "narrow" form of textualism—which, on Skrmetti's view, does not look to legislative history or other potential sources of the meaning of the statute—is now ascendant. A golden boy, on the other hand, is one who is charming, lucky, and talented. 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. Rather, the judges’ decisions have evolved. 523 U.S. 75 (1998). Introduced in 1944 by Congresswoman Winifred C. Stanley, it proclaimed that “[d]iscrimination against employees, in rates of compensation paid, on account of sex” was “contrary to the public interest.” H. R. 5056, 78th Cong., 2d Sess. Houghton Monogr. Often, events have multiple but-for causes. . Bostock v. Clayton County, GA: What this Decision Means for Women’s Representation By Faith Campbell on July 01, 2020 By Faith Campbell and Claire Halffield. (prohibiting discrimination because of “sex[,] . But the limits of the drafters' imagination supply no reason to ignore the law's demands. §2000bb–1. 20 U. S. C. §1681(a) (Title IX); 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. Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions. 1701 Stanhope St. Aug. Medit. On June 12, the Supreme Court affirmed the rights of the LGBTQIA+ community to take action if they experience discrimination in the workplace (Bostock v. Clayton County). (The same is true of current definitions, which are reproduced in Appendix B, infra.) See 110 Cong. [1583 Stubbes Anat. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law. Sociology distinguishes the two. 2019) (prohibiting discrimination because of “sex, . [39] Ken Mehlman took the decision as evidence that conservatism is not inconsistent with support for LGBT rights. Rec. Nor does the fact an employer may happen to favor women as a class. Imagine an employer who has a policy of firing any employee known to be homosexual. 1730 Swift Let. (b) Three leading precedents confirm what the statute’s plain terms suggest. The proper role of the Judiciary in statutory interpretation cases is “to apply, not amend, the work of the People’s representatives,” even when the judges might think that “Congress should reenter the field and alter the judgments it made in the past.” Henson, 582 U. S., at ___–___ (slip op., at 10–11). We can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality or transgender status—is an elephant. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. sex,” etc. See, e.g., Ulane v. Eastern Airlines, Inc., 742 F.2d 1081, 1085 (CA7 1984). As Yeskey and today’s cases exemplify, applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees in the 1960s—often may be seen as unexpected. Sex (seks), v. [f. Sex sb.] Yet, contrary to those intentions, the bill became law. In 1967, Congress passed and President Johnson signed the Age Discrimination in Employment Act. 6. to have sex, to engage in sexual intercourse. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. 1665 Sir T. Herbert Trav. While to the modern eye each of these examples may seem “plainly [to] constitut[e] discrimination because of biological sex,” post, at 38 (Alito, J., dissenting), all were hotly contested for years following Title VII’s enactment. See, e.g., Watson v. Fort Worth Bank & Trust, 104Stat. So, why in these cases are congressional intent and the legislative history of Title VII totally ignored? 1. Although both the House and Senate have voted at different times to prohibit sexual orientation discrimination, the two Houses have not yet come together with the President to enact a bill into law. a 1586 Sidney Arcadia II. Or it could have written “primarily because of ” to indicate that the prohibited factor had to be the main cause of the defendant’s challenged employment decision. . The consequences of the law’s focus on individuals rather than groups are anything but academic. In each of the three cases, the employees sued and alleged sex discrimination under Title VII of the Civil Rights Act of 1964. 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. Webster’s New International Dictionary 2296 (2d ed. Cf. In addition to the failed argument just discussed, the Court makes two other arguments, more or less in passing. But the Court declines to stand on that ground and instead “proceed[s] on the assumption that ‘sex’ . Stat., ch. Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. 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. 565 U.S. 171, 188 (2012). b. collect. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. 2018). Sexual intercourse. That distinguishes these cases from countless others where Title VII has nothing to say. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. [42] Franklin Graham said it was "a very sad day". Kelly S. Hughes Charlotte Author The recent Bostock v. 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