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. 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. 80 Change of Sex under the influence of external causes. No, it doesn’t. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. See Appendix C, infra; e.g., [F. le sexe.] 1897 J. Hutchinson in Arch. Hively, 853 F. 3d, at 357 (Posner, J., concurring). It is “the provisions of our laws rather than the principal concerns of our legislators by which we are governed.” Oncale v. Sundowner Offshore Services, Inc., post, at 2, 42–43 (Alito, J., dissenting); post, at 4, 15–16 (Kavanaugh, J., dissenting). 12–15. As to the label attached to a practice, has anyone ever thought that the application of a law to a person’s conduct depends on how it is labeled? 42 U. S. C. §3631 (Fair Housing Act); 15 U. S. C. 1691(a)(1) (Equal Credit Opportunity Act). . Title VII’s message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.” Price Waterhouse v. Hopkins, . In upholding the ruling, the Eleventh Circuit pointed to their ruling in Evans that dismissed the Supreme Court's precedent against sex discrimination set by Price Waterhouse and Oncale.. Phillips, The Overlooked Evidence in the Title VII Cases: The Linguistic (and Therefore Textualist) Principle of Compositionality (manuscript, at 3) (May 11, 2020) (brackets in original), https://ssrn.com/abstract=3585940. Using slightly different terms, the Court asserts again and again that discrimination because of sexual orientation or gender identity inherently or necessarily entails discrimination because of sex.  These were also the positions of the EEOC. The employer presumably knew that this employee was a woman before she was invited to the fateful party. In botany the term sex is often extended to the distinguishing peculiarities of staminate and pistillate flowers, and hence in dioecious plants to the individuals bearing them. So far, I have not looked beyond dictionary definitions of “sex,” but textualists like Justice Scalia do not confine their inquiry to the scrutiny of dictionaries. 237 These being very evident Proofs of a necessity of two Sexes in Plants as well as in Animals. Co., 791 F.2d 888 (CA11 1986). Another issue that may come up under both Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex. ); N. J. Stat. harassment”). This lesson is obviously true but proves nothing. Bostock v. Clayton County is a potentially transformative victory for LGBTQ rights. 65 An elegant degree of plumpness peculiar to the skin of the softer sex. The first lesson is that “it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.” Ante, at 14. 15, 2020) (challenging state law that bars transgender students from participating in school sports in accordance with gender identity). (1981); 127 Cong. 10 ¶ 6 Their Amusements .. are more adapted to the Sex than to the Species. A 1953 Executive Order provided that background investigations should look for evidence of “sexual perversion,” as well as “[a]ny criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct.” Exec. Apr. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. 18–107, 884 F.3d 560, affirmed. 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. Numerous local governments passed similar LGBT employment discrimination statutes as well. 1888 A. Newton in Zoologist Ser. as. Determined searching has not found a single dictionary from that time that defined “sex” to mean sexual orientation, gender identity, or “transgender status.” Ante, at 2. Franklin, 125 Harv. . But that much does not follow. b. And that, we can infer, is the employer’s real motive. because of such individual’s race, color, religion, sex, or national origin.” . But the Constitution does not put the Legislative Branch in the “position of a television quiz show contestant so that when a given period of time has elapsed and a problem remains unsolved by them, the federal judiciary may press a buzzer and take its turn at fashioning a solution.” Rehnquist, The Notion of a Living Constitution, 54 Texas L. Rev.  Some commentators claimed that his opinion was consistent with his textualism in statutory interpretation of the plain meaning of laws in general, while others asserted otherwise.  The Eleventh Circuit relied on two prior cases: its previous ruling in Evans, and Blum v. Gulf Oil Corp. from the Fifth Circuit in 1976. So, taken together, an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII. The States have proceeded in the same fashion.  Stern agreed with Gorsuch, writing, "Alito does not want the court to stretch Title VII beyond its application—as expected by Congress in 1964—and that approach is not textualism", adding that Alito's opinion "elevates the alleged mental processes of long-dead lawmakers over the ordinary meaning of words". During his ten-year career with Clayton County, Bostock received positive performance evaluations and numerous accolades. “Sexual orientation refers to a person’s erotic response tendency or sexual attractions, be they directed toward individuals of the same sex (homosexual), the other sex (heterosexual), or both sexes (bisexual).” 1 B.Sadock, V. Sadock, & P. Ruiz, Comprehensive Textbook of Psychiatry 2061 (9th ed. Exec. The majority opinion repeatedly seizes on the meaning of the statute’s individual terms, mechanically puts them back together, and generates an interpretation of the phrase “discriminate because of sex” that is literal. The Court explained that, when construing statutory phrases such as “arising from,” it avoids “uncritical literalism leading to results that no sensible person could have intended.” Jennings v. Rodriguez, 583 U. S. ___, ___–___ (2018) (plurality opinion) (slip op., at 9–10) (internal quotation marks omitted). cviii, Benign Ceruleans of the second sex! Citizens and legislators must be able to ascertain the law by reading the words of the statute. Northwestern Law has a unique connection to Bostock v. Clayton County. Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. See, The Court does not define what it means by “transgender status,” but the American Psychological Association describes “transgender” as “[a]n umbrella term encompassing those whose gender identities or gender roles differ from those typically associated with the sex they were assigned at birth.” A Glossary: Defining Transgender Terms, 49 Monitor on Psychology 32 (Sept. 2018), https://www.apa.org/monitor/2018/09/ce-corner-glossary. Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. In addition to the failed argument just discussed, the Court makes two other arguments, more or less in passing. Supp.) “[O]ne can make sense of others’ communications only by placing them in their appropriate social and linguistic context,” id., at 79–80, and this is no less true of statutes than any other verbal communications. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. , 140 S. Ct. 1731; 2020 WL 3146686; 2020 U.S. LEXIS 3252, Rallies outside of the Supreme Court building on October 8, 2019, the day of the oral hearing in the, Title VII of the Civil Rights Act of 1964, R.G. . In cases involving discrimination based on sexual orientation or gender identity, the grounds for the employer’s decision—that individuals should be sexually attracted only to persons of the opposite biological sex or should identify with their biological sex—apply equally to men and women. XX, §18 (emphasis added). Cf. But we are judges, not Members of Congress. Cit. ); Minn. Stat. Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on textualist grounds. Both men and women may be attracted to members of the opposite sex, members of the same sex, or members of both sexes. In its decision on June 15, the court ruled that Title VII of the Civil Rights Act of 1964, which addresses the rights of employees, protects workers from discrimination based on sexual orientation or gender identity. See Franklin, 125 Harv. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex. Therefore, judges should ascribe to the words of a statute “what a reasonable person conversant with applicable social conventions would have understood them to be adopting.” Manning, 106 Colum. . 411 U.S. 677, 682–684 (1973) (plurality opinion); Reed v. Reed, . 1814 Scott Ld. (1841) 129 Besides number, another characteristic, visible in substances, is that of sex. 3d 214, 461 P.2d 375 (1969). 3. Unlike certain other employment policies this Court has addressed that harmed only women or only men, the employers’ policies in the cases before us have the same adverse consequences for men and women. 562 U.S. 562, 574. 404 U.S. 71, 75–77 (1971). If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. Reply Brief for Respondent Aimee Stephens in No. In Phillips v. Martin Marietta Corp., (ed. the ~, women; the sterner ~, men; is the fairest of her ~); (attrib.) 429 U.S. 190, 197–199 (1976); Frontiero v. Richardson, 2), Title VII’s prohibition of discrimination because of “sex” still means what it has always meant. 479 They are beardless, and usually wear a shock of unkempt hair, which is somewhat finer in the gentler sex. 1(a)) (1969) (“The property or quality by which organisms are classified according to their reproductive functions”); Random House Dictionary of the English Language 1307 (def. See ibid. . 19. The attorney’s concession was necessary, but it is fatal to the Court’s interpretation, for if an employer discriminates against individual applicants or employees without even knowing whether they are male or female, it is impossible to argue that the employer intentionally discriminated because of sex. Slang a. The employers might be onto something if Title VII only ensured equal treatment between groups of men and women or if the statute applied only when sex is the sole or primary reason for an employer’s challenged adverse employment action. , Many politicians across the political spectrum praised the ruling. The act also calls for the desegregation of public schools (Title IV), broadens the duties of the Civil Rights Commission (Title V), and assures nondiscrimination in the distribution of … That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. 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? 47, at 326 (citing Montesquieu). No theory of interpretation, including textualism itself, is premised on such an approach.” 883 F.3d 100, 144, n. 7 (CA2 2018) (Lynch, J., dissenting).. But to prevail in this case with their literalist approach, the plaintiffs must also establish one of two other points. The Court draws a distinction between things that are “inextricably” related and those that are related in “some vague sense.” Ante, at 10. 1600 Nashe Summer’s Last Will F 3 b, A woman they imagine her to be, Because that sexe keepes nothing close they heare. 17-1623 no. . If judges could rewrite laws based on their own policy views, or based on their own assessments of likely future legislative action, the critical distinction between legislative authority and judicial authority that undergirds the Constitution’s separation of powers would collapse, thereby threatening the impartial rule of law and individual liberty. Stat. Surprisingly, the Court today buys into this approach. To tie it all together, the plaintiffs have only two routes to succeed here. In 2019, the House voted 236 to 173 to amend Title VII to prohibit employment discrimination on the basis of sexual orientation. In short, an extensive body of federal law both reflects and reinforces the widespread understanding that sexual orientation discrimination is distinct from, and not a form of, sex discrimination. Order No. In 2013, Bostock began participating in a gay recreational softball league. Supp.) §296(1)(a) (West Supp. After all, only the words on the page constitute the law adopted by Congress and approved by the President. What would these ordinary citizens have taken “discrimination because of sex” to mean? Sodomy was a crime in every State but Illinois, see W. 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