I. However, neither Representative Smith nor any other Member said one word about the possibility that the prohibition of sex discrimination might have that meaning. To tie it all together, the plaintiffs have only two routes to succeed here. Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court. In FCC v. AT&T Inc., III. Freedom of speech. BOSTOCK v. CLAYTON COUNTY, GEORGIA CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No. Trying another angle, the defendants before us suggest that an employer who discriminates based on homosexuality or transgender status doesn’t intentionally discriminate based on sex, as a disparate treatment claim requires. Freethought xv. Not a single Justice stated or even hinted that sexual orientation discrimination was just a form of sex discrimination and therefore entitled to the same heightened scrutiny under the Equal Protection Clause. No one should be denied a job or fired simply because of who they are or whom they love. See Part III–C, infra. 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. See ante, at 18–19. shall distinction or discrimination be made on account of sex,” Art. But is that really true? Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability. 5, §4572(1)(A) (2013) (prohibiting discrimination because of “sex, sexual orientation,” etc. orig., division, and. Either of two divisions, designated male and female, of this classification. 4, §801.1 (2020) (making it “unlawful . Appx. Rather than suggesting that the statutory language bears some other meaning, the employers and dissents merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text. 42 U. S. C. 730008, 1973) (reclassifying “homosexuality” as a “[s]exual orientation disturbance,” a category “for individuals whose sexual interests are directed primarily toward people of the same sex and who are either disturbed by . 42 U. S. C. §2000e–2(e), but the BFOQ exception has been read very narrowly. Wife II. He argued that the majority opinion went beyond the plain language of the law to claim that its intent in 1964 covered sexual orientation and gender identity as part of the meaning of "sex" in the statute. As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows how to prohibit sexual orientation discrimination. ); Utah Code §34A–5–106(1) (2019) (prohibiting discrimination because of “sex; . 531 U.S. 457, 468 (2001). That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.” 883 F. 3d, at 135 (Cabranes, J., concurring in judgment). 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. 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. 17–1618 is reversed, and the case is remanded for further proceedings consistent with this opinion. When she got the job, Ms. Stephens presented as a male. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity. In 1964, it was common for States to bar homosexuals from serving as teachers. post, at 40 (Alito, J., dissenting). use=feminine. §§13202, 13207, 13209, 13218, 13255 (West 1960). Cf. And the logic of these decisions, it is argued, applies equally where an employee or applicant is treated unfavorably because he or she is married to, or has an intimate relationship with, a person of the same sex. Some of those who supported adding language to Title VII to ban sex discrimination may have hoped it would derail the entire Civil Rights Act. . [42] 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. Passage of these bills has generally failed because of partisan politics. The lessons these cases hold are instructive here. Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Perf. 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. As noted, other than prohibiting discrimination on any of five specified grounds, “race, color, religion, sex, [and] national origin.” 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. The Court’s opinion is like a pirate ship. 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