(Slip Opinion)

OCTOBER TERM, 20191

Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES
Syllabus

BOSTOCK v. CLAYTON COUNTY, GEORGIACERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE ELEVENTH CIRCUIT
No. 17–1618. Argued October 8, 2019—Decided June 15, 2020*
In each of these cases, an employer allegedly fired a long-time employee
simply for being homosexual or transgender. Clayton County, Georgia, fired Gerald Bostock for conduct “unbecoming” a county employee
shortly after he began participating in a gay recreational softballleague. Altitude Express fired Donald Zarda days after he mentioned
being gay. And R. G. & G. R. Harris Funeral Homes fired Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as awoman.” Each employee sued, alleging sex discrimination under Title
VII of the Civil Rights Act of 1964. The Eleventh Circuit held that
Title VII does not prohibit employers from firing employees for being
gay and so Mr. Bostock’s suit could be dismissed as a matter of law.
The Second and Sixth Circuits, however, allowed the claims of Mr.
Zarda and Ms. Stephens, respectively, to proceed.
Held: An employer who fires an individual merely for being gay ortransgender violates Title VII. Pp. 4–33.
(a) Title VII makes it “unlawful . . . for an employer to fail or refuse
to hire or to discharge any individual, or otherwise to discriminate
against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U. S. C. §2000e–2(a)(1). The
straightforward application of Title VII’s terms interpreted in accord——————* Together with No. 17–1623, Altitude Express, Inc., et al. v. Zarda
et al., as Co-Independent Executors of the Estate of Zarda, on certiorari
to the United States Court of Appeals for the Second Circuit, and No. 18–
107, R. G. & G. R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission et al., on certiorari to the United States Court ofAppeals for the Sixth Circuit.

2

BOSTOCK v. CLAYTON COUNTY
Syllabuswith their ordinary public meaning at the time of their enactment resolves these cases. Pp. 4–12.
(1) The parties concede that the term “sex” in 1964 referred to the
biological distinctions between male and female. And “the ordinary
meaning of ‘because of’ is ‘by reason of’ or ‘on account of,’ ” Universityof Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350.
That term incorporates the but-for causation standard, id., at 346, 360,
which, for Title VII, means that a defendant cannot avoid liability justby citing some other factor that contributed to its challenged employment action. The term “discriminate” meant “[t]o make a difference intreatment or favor (of one as compared with others).” Webster’s New
International Dictionary 745. In so-called “disparate treatment”
cases, this Court has held that the difference in treatment based onsex must be intentional. See, e.g., Watson v. Fort Worth Bank & Trust,
487 U. S. 977, 986. And the statute’s repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster’s New International Dictionary, at1267. Pp. 4–9.
(2) These terms generate the following rule: An employer violates
Title VII when it intentionally fires an individual employee based inpart on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated
women as a group the same when compared to men as a group. A
statutory violation occurs if an employer intentionally relies in part on
an individual employee’s sex when deciding to discharge the employee.
Because discrimination on the basis of homosexuality or transgenderstatus 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. There is no escaping the role intent plays: Just as sex isnecessarily a but-for cause when an employer discriminates against
homosexual or transgender employees, an employer who discriminates
on these grounds inescapably intends to rely on sex in its decisionmaking. Pp. 9–12.
(b) Three leading precedents confirm what the statute’s plain terms
suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire womenwith young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water
and Power v. Manhart, 435 U. S. 702, an employer’s policy of requiring
women to make larger pension fund contributions than men because
women tend to live longer was held to violate Title VII, notwithstanding the policy’s evenhandedness between men and women as groups.

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3

Syllabus
And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, amale plaintiff alleged a triable Title VII claim for sexual harassment
by co-workers who were members of the same sex.
The lessons these cases hold are instructive here. First, it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, theemployer might have called its rule a “life expectancy” adjustment, andin Phillips, the employer could have accurately spoken of its policy as
one based on “motherhood.” But such labels and additional intentions
or motivations did not make a difference there, and they cannot makea difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates
against that individual in part because of sex. Second, the plaintiff’s
sex need not be the sole or primary cause of the employer’s adverse
action. In Phillips, Manhart, and Oncale, the employer easily could
have pointed to some other, nonprotected trait and insisted it was themore important factor in the adverse employment outcome. Here, too,
it is of no significance if another factor, such as the plaintiff’s attraction to the same sex or presentation as a different sex from the one
assigned at birth, might also be at work, or even play a more importantrole in the employer’s decision. Finally, an employer cannot escapeliability by demonstrating that it treats males and females comparably
as groups. Manhart is instructive here. An employer who intentionally fires an individual homosexual or transgender employee in part
because of that individual’s sex violates the law even if the employer
is willing to subject all male and female homosexual or transgender
employees to the same rule. Pp. 12–15.
(c) The employers do not dispute that they fired their employees forbeing homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexualor transgender status is not a basis for Title VII liability. But theirstatutory text arguments have already been rejected by this Court’s
precedents. And none of their other contentions about what they thinkthe law was meant to do, or should do, allow for ignoring the law as it
is. Pp. 15–33.
(1) The employers assert that it should make a difference thatplaintiffs would likely respond in conversation that they were fired forbeing gay or transgender and not because of sex. But conversational
conventions do not control Title VII’s legal analysis, which asks simply
whether sex is a but-for cause. Nor is it a defense to insist that intentional discrimination based on homosexuality or transgender status is
not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily andintentionally applies sex-based rules. Nor does it make a difference

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BOSTOCK v. CLAYTON COUNTY
Syllabusthat an employer could refuse to hire a gay or transgender individual
without learning that person’s sex. By intentionally setting out a rulethat makes hiring turn on sex, the employer violates the law, whatever
he might know or not know about individual applicants. The employers also stress that homosexuality and transgender status are distinct
concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But whenCongress chooses not to include any exceptions to a broad rule, thisCourt applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences formen and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be thesole or primary cause of an adverse employment action under Title VII,a suggestion at odds with the statute. Pp. 16–23.
(2) The employers contend that few in 1964 would have expected
Title VII to apply to discrimination against homosexual andtransgender persons. But legislative history has no bearing here,
where no ambiguity exists about how Title VII’s terms apply to thefacts. See Milner v. Department of Navy, 562 U. S. 562, 574. While itis possible that a statutory term that means one thing today or in one
context might have meant something else at the time of its adoption
or might mean something different in another context, the employers
do not seek to use historical sources to illustrate that the meaning of
any of Title VII’s language has changed since 1964 or that the statute’s
terms ordinarily carried some missed message. Instead, they seem tosay when a new application is both unexpected and important, even if
it is clearly commanded by existing law, the Court should merely pointout the question, refer the subject back to Congress, and decline to enforce the law’s plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers’ new framing may
only add new problems and leave the Court with more than a little law
to overturn. Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law’s guidance to do what
it thinks best. That is an invitation that no court should ever take up.
Pp. 23–33.

No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623,
883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO,
J., filed a dissenting opinion, in which THOMAS, J., joined. KAVANAUGH,
J., filed a dissenting opinion.

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1

Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES_________________

Nos. 17–1618, 17–1623 and 18–107_________________GERALD LYNN BOSTOCK, PETITIONER
17–1618v.
CLAYTON COUNTY, GEORGIAON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS
17–1623v.
MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,
CO-INDEPENDENT EXECUTORS OF THE ESTATE OF
DONALD ZARDAON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
PETITIONER
18–107v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT[June 15, 2020]JUSTICE GORSUCH delivered the opinion of the Court.

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Opinion of the Court

Sometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them. In
our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964. There, in Title VII,
Congress outlawed discrimination in the workplace on thebasis of race, color, religion, sex, or national origin. Today,
we must decide whether an employer can fire someone
simply for being homosexual or transgender. The answer
is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different
sex. Sex plays a necessary and undisguisable role in thedecision, exactly what Title VII forbids.
Those who adopted the Civil Rights Act might not haveanticipated their work would lead to this particular result.
Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basisof motherhood or its ban on the sexual harassment of male
employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only
the written word is the law, and all persons are entitled toits benefit.
I
Few facts are needed to appreciate the legal question weface. 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 ortransgender—and allegedly for no reason other than theemployee’s homosexuality or transgender status.
Gerald Bostock worked for Clayton County, Georgia, as achild welfare advocate. Under his leadership, the county
won national awards for its work. After a decade with theCite as: 590 U. S. ____ (2020)

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Opinion of the Court

county, Mr. Bostock began participating in a gay recreational softball league. Not long after that, influential members of the community allegedly made disparaging comments about Mr. Bostock’s sexual orientation andparticipation in the league. Soon, he was fired for conduct“unbecoming” a county employee.
Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After several seasons with thecompany, Mr. Zarda mentioned that he was gay and, days
later, was fired.
Aimee Stephens worked at R. G. & G. R. Harris Funeral
Homes in Garden City, Michigan. When she got the job,
Ms. Stephens presented as a male. But two years into her
service with the company, she began treatment for despair
and loneliness. Ultimately, clinicians diagnosed her withgender dysphoria and recommended that she begin living
as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that sheplanned to “ live and work full-time as a woman” after she
returned from an upcoming vacation. The funeral home
fired her before she left, telling her “this is not going to workout.”
While these cases began the same way, they ended differently. Each employee brought suit under Title VII alleging
unlawful discrimination on the basis of sex. 78 Stat. 255,
42 U. S. C. §2000e–2(a)(1). 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 bedismissed as a matter of law. 723 Fed. Appx. 964 (2018).
Meanwhile, in Mr. Zarda’s case, the Second Circuit concluded that sexual orientation discrimination does violate
Title VII and allowed his case to proceed. 883 F. 3d 100(2018). Ms. Stephens’s case has a more complex procedural
history, but in the end the Sixth Circuit reached a decision
along the same lines as the Second Circuit’s, holding that
Title VII bars employers from firing employees because of

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Opinion of the Court

their transgender status. 884 F. 3d 560 (2018). During thecourse of the proceedings in these long-running disputes,
both Mr. Zarda and Ms. Stephens have passed away. But
their estates continue to press their causes for the benefitof their heirs. And we granted certiorari in these mattersto resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons. 587 U. S. ___ (2019).
IIThis Court normally interprets a statute in accord withthe ordinary public meaning of its terms at the time of its
enactment. After all, only the words on the page constitutethe law adopted by Congress and approved by the President. If judges could add to, remodel, update, or detractfrom 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. And we would deny the people theright to continue relying on the original meaning of the law
they have counted on to settle their rights and obligations.
See New Prime Inc. v. Oliveira, 586 U. S. ___, ___–___(2019) (slip op., at 6–7).
With this in mind, our task is clear. We must determine
the ordinary public meaning of Title VII’s command that it
is “unlawful . . . for an employer to fail or refuse to hire or
to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because ofsuch individual’s race, color, religion, sex, or national
origin.” §2000e–2(a)(1). To do so, we orient ourselves to thetime of the statute’s adoption, here 1964, and begin by examining the key statutory terms in turn before assessing
their impact on the cases at hand and then confirming ourwork against this Court’s precedents.

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5

Opinion of the CourtA
The only statutorily protected characteristic at issue intoday’s cases is “sex”—and that is also the primary term in
Title VII whose meaning the parties dispute. Appealing toroughly contemporaneous dictionaries, the employers saythat, as used here, the term “sex” in 1964 referred to “status
as either male or female [as] determined by reproductive
biology.” The employees counter by submitting that, evenin 1964, the term bore a broader scope, capturing more thananatomy and reaching at least some norms concerning gender identity and sexual orientation. 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.
Still, that’s just a starting point. The question isn’t justwhat “sex” meant, but what Title VII says about it. Most
notably, the statute prohibits employers from taking certain actions “because of ” sex. And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘byreason of ’ or ‘on account of.’ ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350 (2013) (citing Gross v. FBL Financial Services, Inc., 557 U. S. 167, 176(2009); quotation altered). In the language of law, thismeans that Title VII’s “because of ” test incorporates the“ ‘simple’ ” and “traditional” standard of but-for causation.
Nassar, 570 U. S., at 346, 360. That form of causation isestablished whenever a particular outcome would not have
happened “but for” the purported cause. See Gross, 557
U. S., at 176. In other words, a but-for test directs us tochange one thing at a time and see if the outcome changes.
If it does, we have found a but-for cause.
This can be a sweeping standard. Often, events havemultiple but-for causes. So, for example, if a car accident

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Opinion of the Court

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. Cf.
Burrage v. United States, 571 U. S. 204, 211–212 (2014).
When it comes to Title VII, the adoption of the traditionalbut-for causation standard means a defendant cannot avoid
liability just by citing some other factor that contributed toits challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that isenough to trigger the law. See ibid.; Nassar, 570 U. S., at350.
No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could haveadded “solely” to indicate that actions taken “because of ”
the confluence of multiple factors do not violate the law. Cf.
11 U. S. C. §525; 16 U. S. C. §511. 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. Cf. 22 U. S. C. §2688. But none of thisis the law we have. 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 protectedtrait like sex was a “motivating factor” in a defendant’s
challenged employment practice. Civil Rights Act of 1991,§107, 105 Stat. 1075, codified at 42 U. S. C. §2000e–2(m).
Under this more forgiving standard, liability can sometimes
follow even if sex wasn’t a but-for cause of the employer’s
challenged decision. Still, because nothing in our analysis
depends on the motivating factor test, we focus on the more
traditional but-for causation standard that continues to afford a viable, if no longer exclusive, path to relief under Title VII. §2000e–2(a)(1).
As sweeping as even the but-for causation standard canbe, Title VII does not concern itself with everything that
happens “because of ” sex. The statute imposes liability on

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Opinion of the Court

employers only when they “fail or refuse to hire,” “discharge,” “or otherwise . . . discriminate against” someone
because of a statutorily protected characteristic like sex.
Ibid. The employers acknowledge that they discharged theplaintiffs in today’s cases, but assert that the statute’s listof verbs is qualified by the last item on it: “otherwise . . .
discriminate against.” By virtue of the word otherwise, theemployers suggest, Title VII concerns itself not with every
discharge, only with those discharges that involve discrimination.
Accepting this point, too, for argument’s sake, the question becomes: What did “discriminate” mean in 1964? As
it turns out, it meant then roughly what it means today:“To make a difference in treatment or favor (of one as compared with others).” Webster’s New International Dictionary 745 (2d ed. 1954). To “discriminate against” a person,
then, would seem to mean treating that individual worse
than others who are similarly situated. See Burlington N.
& S. F. R. Co. v. White, 548 U. S. 53, 59 (2006). In so-called“disparate treatment” cases like today’s, this Court has also
held that the difference in treatment based on sex must be
intentional. See, e.g., Watson v. Fort Worth Bank & Trust,
487 U. S. 977, 986 (1988). 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.
At first glance, another interpretation might seem possible. Discrimination sometimes involves “the act, practice,or an instance of discriminating categorically rather than
individually.” Webster’s New Collegiate Dictionary 326(1975); see also post, at 27–28, n. 22 (ALITO, J., dissenting).
On that understanding, the statute would require us to consider the employer’s treatment of groups rather than individuals, to see how a policy affects one sex as a whole versus
the other as a whole. That idea holds some intuitive appeal

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too. Maybe the law concerns itself simply with ensuringthat employers don’t treat women generally less favorably
than they do men. So how can we tell which sense, individual or group, “discriminate” carries in Title VII?
The statute answers that question directly. It tells us
three times—including immediately after the words “discriminate against”—that our focus should be on individuals, not groups: Employers may not “fail or refuse to hireor . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.”§2000e–2(a)(1)(emphasis added). And the meaning of “individual” was as
uncontroversial in 1964 as it is today: “A particular being
as distinguished from a class, species, or collection.” Webster’s New International Dictionary, at 1267. Here, again,
Congress could have written the law differently. It might
have said that “it shall be an unlawful employment practiceto prefer one sex to the other in hiring, firing, or the terms
or conditions of employment.” It might have said that there
should be no “sex discrimination,” perhaps implying a focus
on differential treatment between the two sexes as groups.
More narrowly still, it could have forbidden only “sexist policies” against women as a class. But, once again, that is not
the law we have.
The consequences of the law’s focus on individuals rather
than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances. It’sno defense for the employer to note that, while he treatedthat individual woman worse than he would have treated aman, he gives preferential treatment to female employees
overall. The employer is liable for treating this woman
worse in part because of her sex. Nor is it a defense for an
employer to say it discriminates against both men andwomen because of sex. This statute works to protect individuals of both sexes from discrimination, and does soCite as: 590 U. S. ____ (2020)

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Opinion of the Court

equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man,Bob, for being insufficiently masculine may treat men andwomen as groups more or less equally. But in both cases
the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles
it.
B
From the ordinary public meaning of the statute’s language at the time of the law’s adoption, a straightforward
rule emerges: An employer violates Title VII when it intentionally fires an individual employee based in part on sex.
It doesn’t matter if other factors besides the plaintiff ’s sex
contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared
to men as a group. If the employer intentionally relies inpart 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. Title VII’s
message is “simple but momentous”: An individual employee’s sex is “not relevant to the selection, evaluation, orcompensation of employees.” Price Waterhouse v. Hopkins,
490 U. S. 228, 239 (1989) (plurality opinion).
The statute’s message for our cases is equally simple andmomentous: An individual’s homosexuality or transgenderstatus is not relevant to employment decisions. That’s because it is impossible to discriminate against a person forbeing homosexual or transgender without discriminating
against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s
mind, materially identical in all respects, except that one isa man and the other a woman. If the employer fires the

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Opinion of the Court

male employee for no reason other than the fact he is attracted to men, the employer discriminates against him fortraits or actions it tolerates in his female colleague. Put
differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and theaffected employee’s sex is a but-for cause of his discharge.
Or take an employer who fires a transgender person who
was identified as a male at birth but who now identifies asa female. If the employer retains an otherwise identical
employee who was identified as female at birth, the employer intentionally penalizes a person identified as male atbirth for traits or actions that it tolerates in an employee
identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible rolein the discharge decision.
That distinguishes these cases from countless others
where Title VII has nothing to say. Take an employer who
fires a female employee for tardiness or incompetence orsimply supporting the wrong sports team. Assuming theemployer would not have tolerated the same trait in a man,
Title VII stands silent. But unlike any of these other traits
or actions, homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality ortransgender status are related to sex in some vague senseor 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 intentionallytreat individual employees differently because of their sex.
Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors
may contribute to the decision. Consider an employer
with a policy of firing any woman he discovers to be a
Yankees fan. Carrying out that rule because an employee is a woman and a fan of the Yankees is a firing“because of sex” if the employer would have tolerated thesame allegiance in a male employee. Likewise here.

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Opinion of the Court

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 towhich the individual is attracted or with which the individual identifies). But Title VII doesn’t care. 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.
Reframing the additional causes in today’s cases as additional intentions can do no more to insulate the employers
from liability. Intentionally burning down a neighbor’s
house is arson, even if the perpetrator’s ultimate intention(or motivation) is only to improve the view. No less, intentional discrimination based on sex violates Title VII, even if
it is intended only as a means to achieving the employer’s
ultimate goal of discriminating against homosexual ortransgender employees. There is simply no escaping therole intent plays here: Just as sex is necessarily a but-for
cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on
sex in its decisionmaking. Imagine an employer who hasa policy of firing any employee known to be homosexual.
The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives
and introduces a manager to Susan, the employee’s wife.
Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether themodel employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basisof sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee
worse based in part on that individual’s sex.
An employer musters no better a defense by respondingthat it is equally happy to fire male and female employees
who are homosexual or transgender. Title VII liability is

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not limited to employers who, through the sum of all of theiremployment actions, treat the class of men differently thanthe class of women. Instead, the law makes each instanceof discriminating against an individual employee becauseof that individual’s sex an independent violation of Title
VII. So just as an employer who fires both Hannah and Bob
for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who
fires both Hannah and Bob for being gay or transgender
does the same.
At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled
meanings. For an employer to discriminate against employees for being homosexual or transgender, the employer
must intentionally discriminate against individual men
and women in part because of sex. That has always beenprohibited 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).
C
If more support for our conclusion were required, there’s
no need to look far. All that the statute’s plain terms suggest, this Court’s cases have already confirmed. Consider
three of our leading precedents.
In Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971)(per curiam), a company allegedly refused to hire womenwith young children, but did hire men with children thesame age. Because its discrimination depended not only on
the employee’s sex as a female but also on the presence ofanother criterion—namely, being a parent of young children—the company contended it hadn’t engaged in discrimination “because of ” sex. The company maintained, too,that it hadn’t violated the law because, as a whole, it tended
to favor hiring women over men. Unsurprisingly by now,

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these submissions did not sway the Court. That an employer discriminates intentionally against an individual
only in part because of sex supplies no defense to Title VII.
Nor does the fact an employer may happen to favor womenas a class.
In Los Angeles Dept. of Water and Power v. Manhart, 435
U. S. 702 (1978), an employer required women to makelarger pension fund contributions than men. The employer
sought to justify its disparate treatment on the ground thatwomen tend to live longer than men, and thus are likely toreceive more from the pension fund over time. By everyone’s admission, the employer was not guilty of animosity
against women or a “purely habitual assumptio[n] about awoman’s inability to perform certain kinds of work”; instead, it relied on what appeared to be a statistically accurate statement about life expectancy. Id., at 707–708. Evenso, the Court recognized, a rule that appears evenhanded at
the group level can prove discriminatory at the level of individuals. True, women as a class may live longer than men
as a class. But “[t]he statute’s focus on the individual isunambiguous,” and any individual woman might make thelarger pension contributions and still die as early as a man.
Id., at 708. Likewise, the Court dismissed as irrelevant theemployer’s insistence that its actions were motivated by awish to achieve classwide equality between the sexes: An
employer’s intentional discrimination on the basis of sex is
no more permissible when it is prompted by some further
intention (or motivation), even one as prosaic as seeking toaccount for actuarial tables. Ibid. The employer violated
Title VII because, when its policy worked exactly asplanned, it could not “pass the simple test” asking whether
an individual female employee would have been treated thesame regardless of her sex. Id., at 711.
In Oncale v. Sundowner Offshore Services, Inc., 523 U. S.
75 (1998), a male plaintiff alleged that he was singled out
by his male co-workers for sexual harassment. The Court

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held it was immaterial that members of the same sex as thevictim committed the alleged discrimination. Nor did the
Court concern itself with whether men as a group were subject to discrimination or whether something in addition tosex contributed to the discrimination, like the plaintiff ’s
conduct or personal attributes. “[A]ssuredly,” the casedidn’t involve “the principal evil Congress was concernedwith when it enacted Title VII.” Id., at 79. 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. Because the plaintiff alleged thatthe harassment would not have taken place but for his
sex—that is, the plaintiff would not have suffered similar
treatment if he were female—a triable Title VII claim existed.
The lessons these cases hold for ours are by now familiar.
First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what elsemight motivate it. In Manhart, the employer called its rule
requiring women to pay more into the pension fund a “lifeexpectancy” adjustment necessary to achieve sex equality.
In Phillips, the employer could have accurately spoken of
its policy as one based on “motherhood.” In much the sameway, today’s employers might describe their actions as motivated by their employees’ homosexuality or transgenderstatus. But just as labels and additional intentions or motivations didn’t make a difference in Manhart or Phillips,
they cannot make a difference here. When an employer
fires an employee for being homosexual or transgender, it
necessarily and intentionally discriminates against that individual in part because of sex. And that is all Title VII hasever demanded to establish liability.
Second, the plaintiff ’s sex need not be the sole or primarycause of the employer’s adverse action. In Phillips, Manhart, and Oncale, the defendant easily could have pointed
to some other, nonprotected trait and insisted it was theCite as: 590 U. S. ____ (2020)

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more important factor in the adverse employment outcome.
So, too, it has no significance here if another factor—suchas the sex the plaintiff is attracted to or presents as—mightalso be at work, or even play a more important role in theemployer’s decision.
Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably asgroups. As Manhart teaches, an employer is liable for intentionally requiring an individual female employee to pay
more into a pension plan than a male counterpart even if
the scheme promotes equality at the group level. Likewise,
an employer who intentionally fires an individual homosexual or transgender employee in part because of that individual’s sex violates the law even if the employer is willingto subject all male and female homosexual or transgender
employees to the same rule.
III
What do the employers have to say in reply? For present
purposes, they do not dispute that they fired the plaintiffs
for being homosexual or transgender. Sorting out the true
reasons for an adverse employment decision is often a hardbusiness, but none of that is at issue here. Rather, the employers submit that even intentional discrimination against
employees based on their homosexuality or transgenderstatus supplies no basis for liability under Title VII.
The employers’ argument proceeds in two stages. Seeking footing in the statutory text, they begin by advancing a
number of reasons why discrimination on the basis of homosexuality or transgender status doesn’t involve discrimination because of sex. But each of these arguments turns
out only to repackage errors we’ve already seen and thisCourt’s precedents have already rejected. In the end, theemployers are left to retreat beyond the statute’s text,
where they fault us for ignoring the legislature’s purposes

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Opinion of the Courtin enacting Title VII or certain expectations about its operation. They warn, too, about consequences that might follow a ruling for the employees. But none of these contentions about what the employers think the law was meant todo, or should do, allow us to ignore the law as it is.
A
Maybe most intuitively, the employers assert that discrimination on the basis of homosexuality and transgenderstatus aren’t referred to as sex discrimination in ordinary
conversation. If asked by a friend (rather than a judge) why
they were fired, even today’s plaintiffs would likely respondthat it was because they were gay or transgender, not because of sex. According to the employers, that conversational answer, not the statute’s strict terms, should guideour thinking and suffice to defeat any suggestion that theemployees now before us were fired because of sex. Cf. post,at 3 (ALITO, J., dissenting); post, at 8–13 (KAVANAUGH, J.,dissenting).
But this submission rests on a mistaken understandingof what kind of cause the law is looking for in a Title VIIcase. In conversation, a speaker is likely to focus on what
seems most relevant or informative to the listener. So an
employee who has just been fired is likely to identify the
primary or most direct cause rather than list literally every
but-for cause. To do otherwise would be tiring at best. But
these conversational conventions do not control Title VII’s
legal analysis, which asks simply whether sex was a but-for
cause. In Phillips, for example, a woman who was not hired
under the employer’s policy might have told her friends that
her application was rejected because she was a mother, or
because she had young children. Given that many women
could be hired under the policy, it’s unlikely she would say
she was not hired because she was a woman. But the Court
did not hesitate to recognize that the employer in Phillips
discriminated against the plaintiff because of her sex. Sex

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Opinion of the Court

wasn’t the only factor, or maybe even the main factor, but
it was one but-for cause—and that was enough. You cancall the statute’s but-for causation test what you will—expansive, legalistic, the dissents even dismiss it as wooden
or literal. But it is the law.
Trying another angle, the defendants before us suggestthat an employer who discriminates based on homosexuality or transgender status doesn’t intentionally discriminate
based on sex, as a disparate treatment claim requires. Seepost, at 9–12 (ALITO, J., dissenting); post, at 12–13(KAVANAUGH, J., dissenting). But, as we’ve seen, an employer who discriminates against homosexual ortransgender employees necessarily and intentionally applies sex-based rules. An employer that announces it will
not employ anyone who is homosexual, for example, intends
to penalize male employees for being attracted to men andfemale employees for being attracted to women.
What, then, do the employers mean when they insist intentional discrimination based on homosexuality ortransgender status isn’t intentional discrimination basedon sex? Maybe the employers mean they don’t intend toharm one sex or the other as a class. But as should be clear
by now, the statute focuses on discrimination against individuals, not groups. Alternatively, the employers may
mean that they don’t perceive themselves as motivated bya desire to discriminate based on sex. But nothing in Title
VII turns on the employer’s labels or any further intentions(or motivations) for its conduct beyond sex discrimination.
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 andwomen as groups. In Phillips, the employer may have perceived itself as discriminating based on motherhood, notsex, given that its hiring policies as a whole favored women.
But in both cases, the Court set all this aside as irrelevant.
The employers’ policies involved intentional discrimination

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because of sex, and Title VII liability necessarily followed.
Aren’t these cases different, the employers ask, giventhat an employer could refuse to hire a gay or transgenderindividual without ever learning the applicant’s sex? Suppose an employer asked homosexual or transgender applicants to tick a box on its application form. The employer
then had someone else redact any information that could be
used to discern sex. The resulting applications would disclose which individuals are homosexual or transgender
without revealing whether they also happen to be men or
women. Doesn’t that possibility indicate that the employer’s discrimination against homosexual or transgenderpersons cannot be sex discrimination?
No, it doesn’t. Even in this example, the individual applicant’s sex still weighs as a factor in the employer’s decision. Change the hypothetical ever so slightly and its flaws
become apparent. Suppose an employer’s application form
offered a single box to check if the applicant is either blackor Catholic. 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? Of course not:By intentionally setting out a rule that makes hiring turnon race or religion, the employer violates the law, whatever
he might know or not know about individual applicants.
The same holds here. There is no way for an applicant todecide whether to check the homosexual or transgender box
without considering sex. To see why, imagine an applicant
doesn’t know what the words homosexual or transgendermean. Then try writing out instructions for who should
check the box without using the words man, woman, or sex(or some synonym). It can’t be done. Likewise, there is no
way an employer can discriminate against those who checkthe homosexual or transgender box without discriminatingin part because of an applicant’s sex. By discriminating
against homosexuals, the employer intentionally penalizes

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Opinion of the Courtmen for being attracted to men and women for being attracted to women. By discriminating against transgenderpersons, the employer unavoidably discriminates against
persons with one sex identified at birth and another today.
Any way you slice it, the employer intentionally refuses tohire applicants in part because of the affected individuals’
sex, even if it never learns any applicant’s sex.
Next, the employers turn to Title VII’s list of protectedcharacteristics—race, color, religion, sex, and national
origin. Because homosexuality and transgender status
can’t be found on that list and because they are conceptually distinct from sex, the employers reason, they are implicitly excluded from Title VII’s reach. Put another way, if
Congress had wanted to address these matters in Title VII,
it would have referenced them specifically. Cf. post, at 7–8(ALITO, J., dissenting); post, at 13–15 (KAVANAUGH, J., dissenting).
But that much does not follow. We agree that homosexuality and transgender status are distinct concepts fromsex. 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. Nor is there any such thing as a “canon of donut holes,”in which Congress’s failure to speak directly to a specificcase that falls within a more general statutory rule createsa tacit exception. Instead, when Congress chooses not toinclude any exceptions to a broad rule, courts apply thebroad rule. And that is exactly how this Court has always
approached Title VII. “Sexual harassment” is conceptually
distinct from sex discrimination, but it can fall within Title
VII’s sweep. Oncale, 523 U. S., at 79–80. Same with “motherhood discrimination.” See Phillips, 400 U. S., at 544.
Would the employers have us reverse those cases on thetheory that Congress could have spoken to those problems
more specifically? Of course not. As enacted, Title VII prohibits all forms of discrimination because of sex, however

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Opinion of the Court

they may manifest themselves or whatever other labels
might attach to them.
The employers try the same point another way. Since
1964, they observe, Congress has considered several proposals to add sexual orientation to Title VII’s list of protected characteristics, but no such amendment has becomelaw. Meanwhile, Congress has enacted other statutes addressing other topics that do discuss sexual orientation.
This postenactment legislative history, they urge, shouldtell us something. Cf. post, at 2, 42–43 (ALITO, J., dissenting); post, at 4, 15–16 (KAVANAUGH, J., dissenting).
But what? There’s no authoritative evidence explaining
why later Congresses adopted other laws referencing sexual orientation but didn’t amend this one. Maybe some inthe later legislatures understood the impact Title VII’s
broad language already promised for cases like ours anddidn’t think a revision needed. Maybe others knew about
its impact but hoped no one else would notice. Maybe stillothers, occupied by other concerns, didn’t consider the issue
at all. 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. Pension Benefit Guaranty Corporation v.
LTV Corp., 496 U. S. 633, 650 (1990); see also United Statesv. Wells, 519 U. S. 482, 496 (1997); Sullivan v. Finkelstein,
496 U. S. 617, 632 (1990) (Scalia, J., concurring) (“Arguments based on subsequent legislative history . . . should
not be taken seriously, not even in a footnote”).
That leaves the employers to seek a different sort of exception. Maybe the traditional and simple but-for causation test should apply in all other Title VII cases, but it justdoesn’t work when it comes to cases involving homosexualand transgender employees. The test is too blunt to capture
the nuances here. The employers illustrate their concern
with an example. When we apply the simple test to Mr.

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Bostock—asking whether Mr. Bostock, a man attracted toother men, would have been fired had he been a woman—
we don’t just change his sex. Along the way, we change hissexual orientation too (from homosexual to heterosexual).
If the aim is to isolate whether a plaintiff ’s sex caused thedismissal, the employers stress, we must hold sexual orientation constant—meaning we need to change both his sex
and the sex to which he is attracted. So for Mr. Bostock,
the question should be whether he would’ve been fired if hewere a woman attracted to women. And because his employer would have been as quick to fire a lesbian as it wasa gay man, the employers conclude, no Title VII violation
has occurred.
While the explanation is new, the mistakes are the same.
The employers might be onto something if Title VII only ensured equal treatment between groups of men and womenor if the statute applied only when sex is the sole or primaryreason for an employer’s challenged adverse employment
action. But both of these premises are mistaken. 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. Just cast a glance back to Manhart, where it was no defense that the employer sought toequalize pension contributions based on life expectancy.
Nor does the statute care if other factors besides sex contribute to an employer’s discharge decision. Mr. Bostock’s
employer might have decided to fire him only because of theconfluence of two factors, his sex and the sex to which he isattracted. But exactly the same might have been said in
Phillips, where motherhood was the added variable.
Still, the employers insist, something seems different
here. Unlike certain other employment policies this Court
has addressed that harmed only women or only men, theemployers’ policies in the cases before us have the same adverse consequences for men and women. How could sex be22

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Opinion of the Court

necessary to the result if a member of the opposite sex
might face the same outcome from the same policy?
What the employers see as unique isn’t even unusual. Often in life and law two but-for factors combine to yield aresult that could have also occurred in some other way. Imagine that it’s a nice day outside and your house is too
warm, so you decide to open the window. Both the cool temperature outside and the heat inside are but-for causes ofyour choice to open the window. That doesn’t change justbecause you also would have opened the window had it beenwarm outside and cold inside. In either case, no one would
deny that the window is open “because of ” the outside temperature. Our cases are much the same. So, for example,
when it comes to homosexual employees, male sex and attraction to men are but-for factors that can combine to getthem fired. The fact that female sex and attraction to
women can also get an employee fired does no more thanshow the same outcome can be achieved through the combination of different factors. In either case, though, sex
plays an essential but-for role.
At bottom, the employers’ argument unavoidably comes
down to a suggestion that sex must be the sole or primarycause of an adverse employment action for Title VII liability
to follow. And, as we’ve seen, that suggestion is at odds
with everything we know about the statute. Consider an
employer eager to revive the workplace gender roles of the
1950s. He enforces a policy that he will hire only men as
mechanics and only women as secretaries. 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 abut-for cause of the employer’s refusal to hire. But like theemployers before us today, this employer would say not sofast. By comparing the woman who applied to be a mechanic to a man who applied to be a mechanic, we’ve quietly

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Opinion of the Courtchanged two things: the applicant’s sex and her trait of failing to conform to 1950s gender roles. The “simple test” thus
overlooks that it is really the applicant’s bucking of 1950s
gender roles, not her sex, doing the work. So we need tohold that second trait constant: Instead of comparing thedisappointed female applicant to a man who applied for thesame position, the employer would say, we should compare
her to a man who applied to be a secretary. And becausethat jobseeker would be refused too, this must not be sex
discrimination.
No one thinks that, so the employers must scramble tojustify deploying a stricter causation test for use only incases involving discrimination based on sexual orientation
or transgender status. Such a rule would create a curious
discontinuity in our case law, to put it mildly. Employer
hires based on sexual stereotypes? Simple test. Employer
sets pension contributions based on sex? Simple test. Employer fires men who do not behave in a sufficiently masculine way around the office? Simple test. But when thatsame employer discriminates against women who are attracted to women, or persons identified at birth as women
who later identify as men, we suddenly roll out a new andmore rigorous standard? Why are these reasons for taking
sex into account different from all the rest? Title VII’s text
can offer no answer.
B
Ultimately, the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy. Most pointedly, they contend that few in1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. And
whatever the text and our precedent indicate, they say,shouldn’t this fact cause us to pause before recognizing liability?
It might be tempting to reject this argument out of hand.

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This Court has explained many times over many years that,when the meaning of the statute’s terms is plain, our job isat an end. The people are entitled to rely on the law as
written, without fearing that courts might disregard its
plain terms based on some extratextual consideration. See,e.g., Carcieri v. Salazar, 555 U. S. 379, 387 (2009); Connecticut Nat. Bank v. Germain, 503 U. S. 249, 253–254 (1992);
Rubin v. United States, 449 U. S. 424, 430 (1981). Of
course, some Members of this Court have consulted legislative history when interpreting ambiguous statutory language. Cf. post, at 40 (ALITO, J., dissenting). But that has
no bearing here. “Legislative history, for those who take itinto account, is meant to clear up ambiguity, not create it.”
Milner v. Department of Navy, 562 U. S. 562, 574 (2011).
And as we have seen, no ambiguity exists about how Title
VII’s terms apply to the facts before us. To be sure, thestatute’s application in these cases reaches “beyond theprincipal evil” legislators may have intended or expected toaddress. Oncale, 523 U. S., at 79. But “ ‘the fact that [astatute] has been applied in situations not expressly anticipated by Congress’ ” does not demonstrate ambiguity; instead, it simply “ ‘demonstrates [the] breadth’ ” of a legislative command. Sedima, S. P. R. L. v. Imrex Co., 473 U. S.
479, 499 (1985). 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) (notingthat 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”).
Still, while legislative history can never defeat unambiguous statutory text, historical sources can be useful for adifferent purpose: Because the law’s ordinary meaning at
the time of enactment usually governs, we must be sensitive to the possibility a statutory term that means one thing

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Opinion of the Court

today or in one context might have meant something else at
the time of its adoption or might mean something different
in another context. And we must be attuned to the possibility that a statutory phrase ordinarily bears a different
meaning than the terms do when viewed individually or literally. To ferret out such shifts in linguistic usage or subtle
distinctions between literal and ordinary meaning, thisCourt has sometimes consulted the understandings of the
law’s drafters as some (not always conclusive) evidence.
For example, in the context of the National Motor Vehicle
Theft Act, this Court admitted that the term “vehicle” in1931 could literally mean “a conveyance working on land,
water or air.” McBoyle v. United States, 283 U. S. 25, 26(1931). 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. Ibid. Similarly, in New
Prime, we held that, while the term “contracts of employment” today might seem to encompass only contracts with
employees, at the time of the statute’s adoption the phrase
was ordinarily understood to cover contracts with independent contractors as well. 586 U. S., at ___–___ (slip op.,at 6–9). Cf. post, at 7–8 (KAVANAUGH, J., dissenting)(providing additional examples).
The employers, however, advocate nothing like that here.
They do not seek to use historical sources to illustrate thatthe meaning of any of Title VII’s language has changed
since 1964 or that the statute’s terms, whether viewed individually or as a whole, ordinarily carried some message
we have missed. To the contrary, as we have seen, the employers agree with our understanding of all the statutory
language—“discriminate against any individual . . . because of such individual’s . . . sex.” Nor do the competing
dissents offer an alternative account about what theseterms mean either when viewed individually or in the ag-

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Opinion of the Court

gregate. 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. When a new application emerges that is both unexpected and important, theywould seemingly have us merely point out the question, refer the subject back to Congress, and decline to enforce theplain terms of the law in the meantime.
That is exactly the sort of reasoning this Court has longrejected. Admittedly, the employers take pains to couch
their argument in terms of seeking to honor the statute’s“expected applications” rather than vindicate its “legislative intent.” But the concepts are closely related. 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. However
framed, the employer’s logic impermissibly seeks to displace the plain meaning of the law in favor of something
lying beyond it.
If anything, the employers’ new framing may only add
new problems. The employers assert that “no one” in 1964
or for some time after would have anticipated today’s result.
But is that really true? Not long after the law’s passage,
gay and transgender employees began filing Title VII complaints, so at least some people foresaw this potential application. See, e.g., Smith v. Liberty Mut. Ins. Co., 395 F.
Supp. 1098, 1099 (ND Ga. 1975) (addressing claim from1969); Holloway v. Arthur Andersen & Co., 566 F. 2d 659,
661 (CA9 1977) (addressing claim from 1974). And lessthan a decade after Title VII’s passage, during debates overthe Equal Rights Amendment, others counseled that its
language—which was strikingly similar to Title VII’s—
might also protect homosexuals from discrimination. See,e.g., Note, The Legality of Homosexual Marriage, 82 Yale L.
J. 573, 583–584 (1973).

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Why isn’t that enough to demonstrate that today’s result
isn’t totally unexpected? How many people have to foresee
the application for it to qualify as “expected”? Do we lookonly at the moment the statute was enacted, or do we allow
some time for the implications of a new statute to be worked
out? Should we consider the expectations of those who had
no reason to give a particular application any thought or
only those with reason to think about the question? How
do we account for those who change their minds over time,after learning new facts or hearing a new argument? How
specifically or generally should we frame the “application”
at issue? None of these questions have obvious answers,
and the employers don’t propose any.
One could also reasonably fear that objections about unexpected applications will not be deployed neutrally. Often
lurking just behind such objections resides a cynicism that
Congress could not possibly have meant to protect a disfavored group. Take this Court’s encounter with the Americans with Disabilities Act’s directive that no “ ‘public entity’ ” can discriminate against any “ ‘qualified individualwith a disability.’ ” Pennsylvania Dept. of Corrections v.
Yeskey, 524 U. S. 206, 208 (1998). Congress, of course,
didn’t list every public entity the statute would apply to.
And no one batted an eye at its application to, say, post offices. But when the statute was applied to prisons, curiously, some demanded a closer look: Pennsylvania argued
that “Congress did not ‘envisio[n] that the ADA would beapplied to state prisoners.’ ” Id., at 211–212. This Court
emphatically rejected that view, explaining that, “in thecontext of an unambiguous statutory text,” whether a specific application was anticipated by Congress “is irrelevant.” Id., at 212. 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

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BOSTOCK v. CLAYTON COUNTY
Opinion of the Courtin the 1960s—often may be seen as unexpected. But to refuse enforcement just because of that, because the parties
before us happened to be unpopular at the time of the law’s
passage, would not only require us to abandon our role asinterpreters of statutes; it would tilt the scales of justice infavor of the strong or popular and neglect the promise thatall persons are entitled to the benefit of the law’s terms. Cf.
post, at 28–35 (ALITO, J., dissenting); post, at 21–22(KAVANAUGH, J., dissenting).
The employer’s position also proves too much. If we applied Title VII’s plain text only to applications some (yet-tobe-determined) group expected in 1964, we’d have morethan a little law to overturn. Start with Oncale. How many
people in 1964 could have expected that the law would turnout to protect male employees? Let alone to protect themfrom harassment by other male employees? As we acknowledged at the time, “male-on-male sexual harassment in theworkplace was assuredly not the principal evil Congress
was concerned with when it enacted Title VII.” 523 U. S.,
at 79. Yet the Court did not hesitate to recognize that Title
VII’s plain terms forbade it. Under the employer’s logic, itwould seem this was a mistake.
That’s just the beginning of the law we would have to unravel. As one Equal Employment Opportunity Commission(EEOC) Commissioner observed shortly after the law’s passage, the words of “ ‘the sex provision of Title VII [are] difficult to . . . control.’ ” Franklin, Inventing the “Traditional
Concept” of Sex Discrimination, 125 Harv. L. Rev. 1307,
1338 (2012) (quoting Federal Mediation Service To Play
Role in Implementing Title VII, [1965–1968 Transfer
Binder] CCH Employment Practices ¶8046, p. 6074). The“difficult[y]” may owe something to the initial proponent of
the sex discrimination rule in Title VII, Representative
Howard Smith. On some accounts, the congressman may
have wanted (or at least was indifferent to the possibility

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Opinion of the Courtof ) broad language with wide-ranging effect. Not necessarily because he was interested in rooting out sex discrimination in all its forms, but because he may have hoped to
scuttle the whole Civil Rights Act and thought that adding
language covering sex discrimination would serve as a poison pill. See C. Whalen & B. Whalen, The Longest Debate:
A Legislative History of the 1964 Civil Rights Act 115–118(1985). Certainly nothing in the meager legislative historyof this provision suggests it was meant to be read narrowly.
Whatever his reasons,thanks to the broad language
Representative Smith introduced, many, maybe most, applications of Title VII’s sex provision were “unanticipated”
at the time of the law’s adoption. In fact, many now-obvious
applications met with heated opposition early on, evenamong those tasked with enforcing the law. In the years
immediately following Title VII’s passage, the EEOC officially opined that listing men’s positions and women’s positions separately in job postings was simply helpful rather
than discriminatory. Franklin, 125 Harv. L. Rev., at 1340
(citing Press Release, EEOC (Sept. 22, 1965)). Some courts
held that Title VII did not prevent an employer from firing
an employee for refusing his sexual advances. See, e.g.,
Barnes v. Train, 1974 WL 10628, *1 (D DC, Aug. 9, 1974).
And courts held that a policy against hiring mothers but notfathers of young children wasn’t discrimination because of
sex. See Phillips v. Martin Marietta Corp., 411 F. 2d 1 (CA51969), rev’d, 400 U. S. 542 (1971) (per curiam).
Over time, though, the breadth of the statutory language
proved too difficult to deny. By the end of the 1960s, the
EEOC reversed its stance on sex-segregated job advertising. See Franklin, 125 Harv. L. Rev., at 1345. In 1971, thisCourt held that treating women with children differently
from men with children violated Title VII. Phillips, 400
U. S., at 544. And by the late 1970s, courts began to recognize that sexual harassment can sometimes amount to sex
discrimination. See, e.g., Barnes v. Costle, 561 F. 2d 983,

30

BOSTOCK v. CLAYTON COUNTY
Opinion of the Court

990 (CADC 1977). While to the modern eye each of theseexamples 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. And as with the discrimination we consider today,
many federal judges long accepted interpretations of Title
VII that excluded these situations. Cf. post, at 21–22(KAVANAUGH, J., dissenting) (highlighting that certain
lower courts have rejected Title VII claims based on homosexuality and transgender status). Would the employers
have us undo every one of these unexpected applications
too?
The weighty implications of the employers’ argumentfrom expectations also reveal why they cannot hide behindthe no-elephants-in-mouseholes canon. That canon recognizes that Congress “does not alter the fundamental detailsof a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 531
U. S. 457, 468 (2001). But it has no relevance here. We
can’t deny that today’s holding—that employers are prohibited from firing employees on the basis of homosexuality ortransgender status—is an elephant. But where’s themousehole? Title VII’s prohibition of sex discrimination in
employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly
produced unexpected applications, at least in the view of
those on the receiving end of them. Congress’s key drafting
choices—to focus on discrimination against individuals andnot merely between groups and to hold employers liablewhenever sex is a but-for cause of the plaintiff ’s injuries—
virtually guaranteed that unexpected applications would
emerge over time. This elephant has never hidden in amousehole; it has been standing before us all along.
With that, the employers are left to abandon their concern for expected applications and fall back to the last line

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31

Opinion of the Courtof defense for all failing statutory interpretation arguments: naked policy appeals. If we were to apply the statute’s plain language, they complain, any number of undesirable policy consequences would follow. Cf. post, at 44–54(ALITO, J., dissenting). Gone here is any pretense of statutory interpretation; all that’s left is a suggestion we should
proceed without the law’s guidance to do as we think best.
But that’s an invitation no court should ever take up. The
place to make new legislation, or address unwanted consequences of old legislation, lies in Congress. When it comesto statutory interpretation, our role is limited to applying
the law’s demands as faithfully as we can in the cases thatcome before us. As judges we possess no special expertiseor authority to declare for ourselves what a self-governing
people should consider just or wise. And the same judicial
humility that requires us to refrain from adding to statutes
requires us to refrain from diminishing them.
What are these consequences anyway? The employers
worry that our decision will sweep beyond Title VII to otherfederal or state laws that prohibit sex discrimination. And,
under Title VII itself, they say sex-segregated bathrooms,
locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are
before us; we have not had the benefit of adversarial testing
about the meaning of their terms, and we do not prejudge
any such question today. Under Title VII, too, we do not
purport to address bathrooms, locker rooms, or anythingelse of the kind. The only question before us is whether an
employer who fires someone simply for being homosexualor transgender has discharged or otherwise discriminatedagainst that individual “because of such individual’s sex.”
As used in Title VII, the term “ ‘discriminate against’ ” refers
to “distinctions or differences in treatment that injure protected individuals.” Burlington N. & S. F. R., 548 U. S., at
59. Firing employees because of a statutorily protectedtrait surely counts. Whether other policies and practices

32

BOSTOCK v. CLAYTON COUNTY
Opinion of the Court

might or might not qualify as unlawful discrimination orfind justifications under other provisions of Title VII are
questions for future cases, not these.
Separately, the employers fear that complying with Title
VII’s requirement in cases like ours may require some employers to violate their religious convictions. We are also
deeply concerned with preserving the promise of the free
exercise of religion enshrined in our Constitution; thatguarantee lies at the heart of our pluralistic society. But
worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law,
Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the applicationof 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, 565 U. S. 171, 188(2012). And Congress has gone a step further yet in the
Religious Freedom Restoration Act of 1993 (RFRA), 107
Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantiallyburdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means offurthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’scommands in appropriate cases. See §2000bb–3.
But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too. Harris
Funeral Homes did unsuccessfully pursue a RFRA-based
defense in the proceedings below. In its certiorari petition,
however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now

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33

Opinion of the Court

before us. So while other employers in other cases may
raise free exercise arguments that merit careful consideration, none of the employers before us today represent in thisCourt that compliance with Title VII will infringe their own
religious liberties in any way.
*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. Yet, contrary to those intentions, the bill became law. Since then, Title VII’s effects
have unfolded with far-reaching consequences, some likely
beyond what many in Congress or elsewhere expected.
But none of this helps decide today’s cases. Ours is a society of written laws. Judges are not free to overlook plain
statutory commands on the strength of nothing more than
suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex
when deciding to fire that employee. We do not hesitate torecognize today a necessary consequence of that legislative
choice: An employer who fires an individual merely for being gay or transgender defies the law.
The judgments of the Second and Sixth Circuits in Nos.
17–1623 and 18–107 are affirmed. The judgment of theEleventh Circuit in No. 17–1618 is reversed, and the caseis remanded for further proceedings consistent with thisopinion.
It is so ordered.

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1

Opinionthe Court
ALITO, J.,ofdissenting

SUPREME COURT OF THE UNITED STATES_________________

Nos. 17–1618, 17–1623 and 18–107_________________GERALD LYNN BOSTOCK, PETITIONER
17–1618v.
CLAYTON COUNTY, GEORGIAON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS
17–1623v.
MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,
CO-INDEPENDENT EXECUTORS OF THE ESTATE OF
DONALD ZARDAON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
PETITIONER
18–107v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT[June 15, 2020]JUSTICE ALITO, with whom JUSTICE THOMAS joins,dissenting.
There is only one word for what the Court has done today:
legislation. The document that the Court releases is in theform of a judicial opinion interpreting a statute, but that is
deceptive.

2

BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of five specified grounds: “race,color, religion, sex, [and] national origin.” 42 U. S. C.
§2000e–2(a)(1). Neither “sexual orientation” nor “gender
identity” appears on that list. For the past 45 years, bills
have been introduced in Congress to add “sexual orientation” to the list,1 and in recent years, bills have included“gender identity” as well.2 But to date, none has passed
both Houses.
Last year, the House of Representatives passed a bill thatwould amend Title VII by defining sex discrimination to include both “sexual orientation” and “gender identity,” H. R.
5, 116th Cong., 1st Sess. (2019), but the bill has stalled in
the Senate. An alternative bill, H. R. 5331, 116th Cong.,
1st Sess. (2019), would add similar prohibitions but contains provisions to protect religious liberty.3 This bill remains before a House Subcommittee.
Because no such amendment of Title VII has been enacted in accordance with the requirements in the Constitution (passage in both Houses and presentment to the President, Art. I, §7, cl. 2), Title VII’s prohibition of——————
1 E.g., H. R. 166, 94th Cong., 1st Sess., §6 (1975); H. R. 451, 95th Cong.,
1st Sess., §6 (1977); S. 2081, 96th Cong., 1st Sess. (1979); S. 1708, 97th
Cong., 1st Sess. (1981); S. 430, 98th Cong., 1st Sess. (1983); S. 1432, 99th
Cong., 1st Sess., §5 (1985); S. 464, 100th Cong., 1st Sess., §5 (1987); H. R.
655, 101st Cong., 1st Sess., §2 (1989); S. 574, 102d Cong., 1st Sess., §5(1991); H. R. 423, 103d Cong., 1st Sess., §2 (1993); S. 932, 104th Cong.,
1st Sess. (1995); H. R. 365, 105th Cong., 1st Sess., §2 (1997); H. R. 311,
106th Cong., 1st Sess., §2 (1999); H. R. 217, 107th Cong., 1st Sess., §2(2001); S. 16, 108th Cong., 1st Sess., §§701–704 (2003); H. R. 288, 109th
Cong., 1st Sess., §2 (2005).
2 See, e.g., H. R. 2015, 110th Cong., 1st Sess. (2007); H. R. 3017, 111th
Cong., 1st Sess. (2009); H. R. 1397, 112th Cong., 1st Sess. (2011); H. R.
1755, 113th Cong., 1st Sess. (2013); H. R. 3185, 114th Cong., 1st Sess.,§7 (2015); H. R. 2282, 115th Cong., 1st Sess., §7 (2017); H. R. 5, 116th
Cong., 1st Sess. (2019).
3 H. R. 5331, 116th Cong., 1st Sess., §§4(b), (c) (2019).

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ALITO, J., dissenting

discrimination because of “sex” still means what it has always meant. But the Court is not deterred by these constitutional niceties. Usurping the constitutional authority ofthe other branches, the Court has essentially taken H. R.
5’s provision on employment discrimination and issued it
under the guise of statutory interpretation.4 A more brazen
abuse of our authority to interpret statutes is hard to recall.
The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous.
Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of“sexual orientation” or “gender identity.” And in any event,our duty is to interpret statutory terms to “mean what they
conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added). 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 thatwas essentially unknown at the time.
The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but noone should be fooled. The Court’s opinion is like a pirate
ship. It sails under a textualist flag, but what it actually
represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. See A. Scalia, A Matter of Interpretation 22——————
4 Section 7(b) of H. R. 5 strikes the term “sex” in 42 U. S. C. §2000e–2
and inserts: “SEX (INCLUDING SEXUAL ORIENTATION AND
GENDER IDENTITY).”

4

BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting(1997). If the Court finds it appropriate to adopt this theory, it should own up to what it is doing.5
Many will applaud today’s decision because they agree on
policy grounds with the Court’s updating of Title VII. But
the question in these cases is not whether discrimination
because of sexual orientation or gender identity should beoutlawed. The question is whether Congress did that in
1964.
It indisputably did not.
I
A
Title VII, as noted, prohibits discrimination “because of. . . sex,” §2000e–2(a)(1), and in 1964, it was as clear as clear
could be that this meant discrimination because of the genetic and anatomical characteristics that men and women
have at the time of birth. Determined searching has notfound a single dictionary from that time that defined “sex”
to mean sexual orientation, gender identity, or“transgender status.”6 Ante, at 2. (Appendix A, infra, to——————
5 That is what Judge Posner did in the Seventh Circuit case holdingthat Title VII prohibits discrimination because of sexual orientation. See
Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339 (2017) (enbanc). Judge Posner agreed with that result but wrote:“I would prefer to see us acknowledge openly that today we, who are
judges rather than members of Congress, are imposing on a half-centuryold statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted.” Id., at 357 (concurring opinion) (emphasis added).
6 The Court does not define what it means by “transgender status,” but
the American Psychological Association describes “transgender” as “[a]numbrella term encompassing those whose gender identities or genderroles 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/cecorner-glossary. It defines “gender identity” as “[a]n internal sense ofbeing male, female or something else, which may or may not correspondCite as: 590 U. S. ____ (2020)

5

ALITO, J., dissenting

this opinion includes the full definitions of “sex” in the unabridged dictionaries in use in the 1960s.)
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. 1) (2d ed. 1953): “[o]ne of the two divisions of organisms
formed on the distinction of male and female.” See also
American Heritage Dictionary 1187 (def. 1(a)) (1969) (“Theproperty or quality by which organisms are classified according to their reproductive functions”); Random House
Dictionary of the English Language 1307 (def. 1) (1966)(Random House Dictionary) (“the fact or character of being
either male or female”); 9 Oxford English Dictionary 577(def. 1) (1933) (“Either of the two divisions of organic beings
distinguished as male and female respectively”).
The Court does not dispute that this is what “sex” meansin Title VII, although it coyly suggests that there is at least
some support for a different and potentially relevant definition. Ante, at 5. (I address alternative definitions below.
See Part I–B–3, infra.) But the Court declines to stand onthat ground and instead “proceed[s] on the assumption that‘sex’ . . . refer[s] only to biological distinctions between maleand female.” Ante, at 5.
If that is so, it should be perfectly clear that Title VII does
not reach discrimination because of sexual orientation orgender identity. If “sex” in Title VII means biologicallymale or female, then discrimination because of sex means
discrimination because the person in question is biologically male or biologically female, not because that person issexually attracted to members of the same sex or identifies
as a member of a particular gender.
How then does the Court claim to avoid that conclusion?
——————
to an individual’s sex assigned at birth or sex characteristics.” Ibid. Under these definitions, there is no apparent difference between discrimination because of transgender status and discrimination because of gender identity.

6

BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

The Court tries to cloud the issue by spending many pages
discussing matters that are beside the point. The Court observes that a Title VII plaintiff need not show that “sex”
was the sole or primary motive for a challenged employment decision or its sole or primary cause; that Title VII islimited to discrimination with respect to a list of specified
actions (such as hiring, firing, etc.); and that Title VIIprotects individual rights, not group rights. See ante, at 5–9, 11.
All that is true, but so what? In cases like those before
us, a plaintiff must show that sex was a “motivating factor”
in the challenged employment action, 42 U. S. C. §2000e–2(m), so the question we must decide comes down to this: if
an individual employee or applicant for employment showsthat his or her sexual orientation or gender identity was a“motivating factor” in a hiring or discharge decision, for example, is that enough to establish that the employer discriminated “because of . . . sex”? Or, to put the same question in different terms, if an employer takes an employment
action solely because of the sexual orientation or gender
identity of an employee or applicant, has that employer necessarily discriminated because of biological sex?
The answers to those questions must be no, unless discrimination because of sexual orientation or gender identity
inherently constitutes discrimination because of sex. The
Court attempts to prove that point, and it argues, notmerely that the terms of Title VII can be interpreted thatway but that they cannot reasonably be interpreted anyother way. According to the Court, the text is unambiguous.
See ante, at 24, 27, 30.
The arrogance of this argument is breathtaking. As I willshow, there is not a shred of evidence that any Member ofCongress interpreted the statutory text that way when Title VII was enacted. See Part III–B, infra. But the Court
apparently thinks that this was because the Members werenot “smart enough to realize” what its language means.

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7

ALITO, J., dissenting

Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339,
357 (CA7 2017) (Posner, J., concurring). The Court seemingly has the same opinion about our colleagues on the
Courts of Appeals, because until 2017, every single Court ofAppeals to consider the question interpreted Title VII’s prohibition against sex discrimination to mean discriminationon the basis of biological sex. See Part III–C, infra. And forgood measure, the Court’s conclusion that Title VII unambiguously reaches discrimination on the basis of sexual orientation and gender identity necessarily means that the
EEOC failed to see the obvious for the first 48 years after
Title VII became law.7 Day in and day out, the Commission
enforced Title VII but did not grasp what discrimination“because of . . . sex” unambiguously means. See Part III–C,
infra.
The Court’s argument is not only arrogant, it is wrong. It
fails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes.
Ante, at 19 (“homosexuality and transgender status are distinct concepts from sex”). And neither “sexual orientation”
nor “gender identity” is tied to either of the two biologicalsexes. See ante, at 10 (recognizing that “discrimination onthese bases” does not have “some disparate impact on one
sex or another”). Both men and women may be attracted tomembers of the opposite sex, members of the same sex, or
members of both sexes.8 And individuals who are born with——————
7 The EEOC first held that “discrimination against a transgender individual because that person is transgender” violates Title VII in 2012 inMacy v. Holder, 2012 WL 1435995, *11 (Apr. 20, 2012), though it earlier
advanced that position in an amicus brief in Federal District Court in2011, ibid., n. 16. It did not hold that discrimination on the basis of sexual orientation violated Title VII until 2015. See Baldwin v. Foxx, 2015
WL 4397641 (July 15, 2015).
8 “Sexual orientation refers to a person’s erotic response tendency orsexual attractions, be they directed toward individuals of the same sex(homosexual), the other sex (heterosexual), or both sexes (bisexual).” 1 B.

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

the genes and organs of either biological sex may identify
with a different gender.9
Using slightly different terms, the Court asserts again
and again that discrimination because of sexual orientationor gender identity inherently or necessarily entails discrimination because of sex. 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 homosexualor transgender employees, [the] employer . . . inescapably
intends to rely on sex in its decisionmaking”); ante, at 12(“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women inpart because of sex”); ante, at 14 (“When an employer fires
an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex”); ante, at 19 (“[D]iscrimination
based on homosexuality or transgender status necessarily
entails discrimination based on sex”). But repetition of anassertion does not make it so, and the Court’s repeated assertion is demonstrably untrue.
Contrary to the Court’s contention, discrimination because of sexual orientation or gender identity does not in——————
Sadock, V. Sadock, & P. Ruiz, Comprehensive Textbook of Psychiatry
2061 (9th ed. 2009); see also American Heritage Dictionary 1607 (5th ed.
2011) (defining “sexual orientation” as “[t]he direction of a person’s sexual interest, as toward people of the opposite sex, the same sex, or both
sexes”); Webster’s New College Dictionary 1036 (3d ed. 2008) (defining“sexual orientation” as “[t]he direction of one’s sexual interest toward
members of the same, opposite, or both sexes”).
9 See n. 6, supra; see also Sadock, supra, at 2063 (“transgender” refers
to “any individual who identifies with and adopts the gender role of amember of the other biological sex”).

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ALITO, J., dissenting

and of itself entail discrimination because of sex. We cansee this because it is quite possible for an employer to discriminate on those grounds without taking the sex of an individual applicant or employee into account. 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 evenknowing the biological sex of gay, lesbian, and transgenderapplicants. In fact, at the time of the enactment of Title
VII, the United States military had a blanket policy of refusing to enlist gays or lesbians, and under this policy for
years thereafter, applicants for enlistment were required tocomplete a form that asked whether they were “homosexual.” Appendix D, infra, at 88, 101.
At oral argument, the attorney representing the employees, a prominent professor of constitutional law, was asked
if there would be discrimination because of sex if an employer with a blanket policy against hiring gays, lesbians,
and transgender individuals implemented that policy without knowing the biological sex of any job applicants. Her
candid answer was that this would “not” be sex discrimination.10 And she was right.
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 evenknowing whether they are male or female, it is impossible
to argue that the employer intentionally discriminated because of sex. Contra, ante, at 19. An employer cannot intentionally discriminate on the basis of a characteristic ofwhich the employer has no knowledge. And if an employer
does not violate Title VII by discriminating on the basis of——————
10 See Tr. of Oral Arg. in Nos. 17–1618, 17–1623, pp. 69–70 (“If there
was that case, it might be the rare case in which sexual orientation discrimination is not a subset of sex”); see also id., at 69 (“Somebody whocomes in and says I’m not going to tell you what my sex is, but, believeme, I was fired for my sexual orientation, that person will lose”).

10

BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

sexual orientation or gender identity without knowing thesex of the affected individuals, there is no reason why thesame employer could not lawfully implement the same policy even if it knows the sex of these individuals. If an employer takes an adverse employment action for a perfectlylegitimate reason—for example, because an employee stole
company property—that action is not converted into sex
discrimination simply because the employer knows the employee’s sex. As explained, a disparate treatment case requires proof of intent—i.e., that the employee’s sex motivated the firing. In short, what this example shows is that
discrimination because of sexual orientation or gender identity does not inherently or necessarily entail discrimination
because of sex, and for that reason, the Court’s chief argument collapses.
Trying to escape the consequences of the attorney’s concession, the Court offers its own hypothetical:“Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic. If the employer refuses to hire anyone who checks
that box, would we conclude the employer has compliedwith Title VII, so long as it studiously avoids learning
any particular applicant’s race or religion? Of coursenot.” Ante, at 18.
How this hypothetical proves the Court’s point is a mystery. A person who checked that box would presumably be
black, Catholic, or both, and refusing to hire an applicant
because of race or religion is prohibited by Title VII. Rejecting applicants who checked a box indicating that they
are homosexual is entirely different because it is impossible
to tell from that answer whether an applicant is male orfemale.
The Court follows this strange hypothetical with an evenstranger argument. The Court argues that an applicant

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ALITO, J., dissenting

could not answer the question whether he or she is homosexual without knowing something about sex. If the applicant was unfamiliar with the term “homosexual,” the applicant would have to look it up or ask what the term means.
And because this applicant would have to take into accounthis or her sex and that of the persons to whom he or she issexually attracted to answer the question, it follows, theCourt reasons, that an employer could not reject this applicant without taking the applicant’s sex into account. Seeante, at 18–19.
This is illogical. Just because an applicant cannot say
whether he or she is homosexual without knowing his or
her own sex and that of the persons to whom the applicant
is attracted, it does not follow that an employer cannot reject an applicant based on homosexuality without knowing
the applicant’s sex.
While the Court’s imagined application form proves nothing, another hypothetical case offered by the Court is telling. But what it proves is not what the Court thinks. The
Court posits:“Imagine an employer who has a policy of firing any
employee known to be homosexual. The employer
hosts an office holiday party and invites employees tobring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Willthat employee be fired? If the policy works as the employer intends, the answer depends entirely on
whether the model employee is a man or a woman.”Ante, at 11.
This example disproves the Court’s argument because itis perfectly clear that the employer’s motivation in firing
the female employee had nothing to do with that employee’s
sex. The employer presumably knew that this employee
was a woman before she was invited to the fateful party.
Yet the employer, far from holding her biological sex

12

BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

against her, rated her a “model employee.” At the party,
the employer learned something new, her sexual orientation, and it was this new information that motivated her
discharge. So this is another example showing that discrimination because of sexual orientation does not inherently involve discrimination because of sex.
In addition to the failed argument just discussed, theCourt makes two other arguments, more or less in passing.
The first of these is essentially that sexual orientation andgender identity are closely related to sex. The Court argues
that sexual orientation and gender identity are “inextricably bound up with sex,” ante, at 10, and that discriminationon the basis of sexual orientation or gender identity involves the application of “sex-based rules,” ante, at 17. Thisis a variant of an argument found in many of the briefs filedin support of the employees and in the lower court decisions
that agreed with the Court’s interpretation. All these variants stress that sex, sexual orientation, and gender identity
are related concepts. The Seventh Circuit observed that“[i]t would require considerable calisthenics to remove ‘sex’
from ‘sexual orientation.’ ” Hively, 853 F. 3d, at 350.11 The
Second Circuit wrote that sex is necessarily “a factor in sexual orientation” and further concluded that “sexual orientation is a function of sex.” 883 F. 3d 100, 112–113 (CA22018) (en banc). Bostock’s brief and those of amici supporting his position contend that sexual orientation is “a sexbased consideration.”12 Other briefs state that sexual orientation is “a function of sex”13 or is “intrinsically related to——————
11 See also Brief for William N. Eskridge Jr. et al. as Amici Curiae 2(“[T]here is no reasonable way to disentangle sex from same-sex attraction or transgender status”).
12 Brief for Petitioner in No. 17–1618, at 14; see also Brief for Southern
Poverty Law Center et al. as Amici Curiae 7–8.
13 Brief for Scholars Who Study the LGB Population as Amici Curiae
in Nos. 17–1618, 17–1623, p. 10.

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13

ALITO, J., dissentingsex.”14 Similarly, Stephens argues that sex and gender
identity are necessarily intertwined: “By definition, atransgender person is someone who lives and identifies
with a sex different than the sex assigned to the person atbirth.”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.
Title VII prohibits discrimination because of sex itself, noteverything that is related to, based on, or defined with reference to, “sex.” Many things are related to sex. Think of
all the nouns other than “orientation” that are commonly
modified by the adjective “sexual.” Some examples yieldedby a quick computer search are “sexual harassment,” “sexual assault, “sexual violence,” “sexual intercourse,” and“sexual content.”
Does the Court really think that Title VII prohibits discrimination on all these grounds? Is it unlawful for an employer to refuse to hire an employee with a record of sexual
harassment in prior jobs? Or a record of sexual assault or
violence?
To be fair, the Court does not claim that Title VII prohibits discrimination because of everything that is related tosex. The Court draws a distinction between things that are“inextricably” related and those that are related in “somevague sense.” Ante, at 10. Apparently the Court would
graft onto Title VII some arbitrary line separating thethings that are related closely enough and those that are
not.16 And it would do this in the name of high textualism.
——————
14 Brief for American Psychological Association et al. as Amici Curiae
11.
15 Reply Brief for Respondent Aimee Stephens in No. 18–107, p. 5.
16 Notably, Title VII itself already suggests a line, which the Court ignores. The statute specifies that the terms “because of sex” and “on thebasis of sex” cover certain conditions that are biologically tied to sex,

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

An additional argument made in passing also fights the
text of Title VII and the policy it reflects. The Court proclaims that “[a]n individual’s homosexuality or transgenderstatus is not relevant to employment decisions.” Ante, at 9.
That is the policy view of many people in 2020, and perhaps
Congress would have amended Title VII to implement it if
this Court had not intervened. But that is not the policy
embodied in Title VII in its current form. Title VII prohibits discrimination based on five specified grounds, and neither sexual orientation nor gender identity is on the list. As
long as an employer does not discriminate based on one of
the listed grounds, the employer is free to decide for itself
which characteristics are “relevant to [its] employment decisions.” Ibid. By proclaiming that sexual orientation andgender identity are “not relevant to employment decisions,”
the Court updates Title VII to reflect what it regards as2020 values.
The Court’s remaining argument is based on a hypothetical that the Court finds instructive. In this hypothetical,
an employer has two employees who are “attracted to men,”and “to the employer’s mind” the two employees are “materially identical” except that one is a man and the other is awoman. Ante, at 9 (emphasis added). The Court reasonsthat if the employer fires the man but not the woman, theemployer is necessarily motivated by the man’s biologicalsex. Ante, at 9–10. After all, if two employees are identicalin every respect but sex, and the employer fires only one,what other reason could there be?
The problem with this argument is that the Court loads
the dice. That is so because in the mind of an employer who
does not want to employ individuals who are attracted to——————
namely, “pregnancy, childbirth, [and] related medical conditions.” 42
U. S. C. §2000e(k). This definition should inform the meaning of “because of sex” in Title VII more generally. Unlike pregnancy, neither sexual orientation nor gender identity is biologically linked to women ormen.

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ALITO, J., dissenting

members of the same sex, these two employees are not materially identical in every respect but sex. On the contrary,
they differ in another way that the employer thinks is quite
material. And until Title VII is amended to add sexual orientation as a prohibited ground, this is a view that an employer is permitted to implement. As noted, other than prohibiting discrimination on any of five specified grounds,“race, color, religion, sex, [and] national origin.” 42 U. S. C.
§2000e–2(a)(1), Title VII allows employers to decide
whether two employees are “materially identical.” Even idiosyncratic criteria are permitted; if an employer thinksthat Scorpios make bad employees, the employer can refuse
to hire Scorpios. Such a policy would be unfair and foolish,
but under Title VII, it is permitted. And until Title VII isamended, so is a policy against employing gays, lesbians, ortransgender individuals.
Once this is recognized, what we have in the Court’s hypothetical case are two employees who differ in two ways––sex and sexual orientation––and if the employer fires one
and keeps the other, all that can be inferred is that the employer was motivated either entirely by sexual orientation,
entirely by sex, or in part by both. We cannot infer withany certainty, as the hypothetical is apparently meant tosuggest, that the employer was motivated even in part bysex. The Court harps on the fact that under Title VII a prohibited ground need not be the sole motivation for an adverse employment action, see ante, at 10–11, 14–15, 21, but
its example does not show that sex necessarily played any
part in the employer’s thinking.
The Court tries to avoid this inescapable conclusion byarguing that sex is really the only difference between thetwo employees. This is so, the Court maintains, because
both employees “are attracted to men.” Ante, at 9–10. Of
course, the employer would couch its objection to the man
differently. It would say that its objection was his sexual
orientation. So this may appear to leave us with a battle of

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

labels. If the employer’s objection to the male employee ischaracterized as attraction to men, it seems that he is justlike the woman in all respects except sex and that the employer’s disparate treatment must be based on that one difference. On the other hand, if the employer’s objection issexual 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.
The Court insists that its label is the right one, and that
presumably is why it makes such a point of arguing that an
employer cannot escape liability under Title VII by giving
sex discrimination some other name. See ante, at 14, 17.
That is certainly true, but so is the opposite. Somethingthat is not sex discrimination cannot be converted into sex
discrimination by slapping on that label. So the Court cannot prove its point simply by labeling the employer’s objection as “attract[ion] to men.” Ante, at 9–10. Rather, theCourt needs to show that its label is the correct one.
And a labeling standoff would not help the Court becausethat would mean that the bare text of Title VII does notunambiguously show that its interpretation is right. The
Court would have no justification for its stubborn refusal tolook any further.
As it turns out, however, there is no standoff. It can easily be shown that the employer’s real objection is not “attract[ion] to men” but homosexual orientation.
In an effort to prove its point, the Court carefully includes
in its example just two employees, a homosexual man anda heterosexual woman, but suppose we add two more individuals, a woman who is attracted to women and a man who
is attracted to women. (A large employer will likely haveapplicants and employees who fall into all four categories,
and a small employer can potentially have all four as well.)We now have the four exemplars listed below, with the discharged employees crossed out:

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ALITO, J., dissenting

Man attracted to men
Woman attracted to men
Woman attracted to women
Man attracted to women
The discharged employees have one thing in common. It
is not biological sex, attraction to men, or attraction to
women. It is attraction to members of their own sex—in aword, sexual orientation. And that, we can infer, is the employer’s real motive.
In sum, the Court’s textual arguments fail on their own
terms. The Court tries to prove that “it is impossible to discriminate against a person for being homosexual ortransgender without discriminating against that individual
based on sex,” ante, at 9, but as has been shown, it is entirely possible for an employer to do just that. “[H]omosexuality and transgender status are distinct concepts fromsex,” ante, at 19, and discrimination because of sexual orientation or transgender status does not inherently or necessarily constitute discrimination because of sex. The
Court’s arguments are squarely contrary to the statutorytext.
But even if the words of Title VII did not definitively refute the Court’s interpretation, that would not justify the
Court’s refusal to consider alternative interpretations. The
Court’s excuse for ignoring everything other than the barestatutory text is that the text is unambiguous and therefore
no one can reasonably interpret the text in any way otherthan the Court does. Unless the Court has met that highstandard, it has no justification for its blinkered approach.
And to say that the Court’s interpretation is the only possible reading is indefensible.
B
Although the Court relies solely on the arguments discussed above, several other arguments figure prominently
in the decisions of the lower courts and in briefs submitted

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

by or in support of the employees. The Court apparently
finds these arguments unpersuasive, and so do I, but for thesake of completeness, I will address them briefly.
1
One argument, which relies on our decision in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989) (plurality opinion), is that discrimination because of sexual orientation orgender identity violates Title VII because it constitutes prohibited discrimination on the basis of sex stereotypes. See
883 F. 3d, at 119–123; Hively, 853 F. 3d, at 346; 884 F. 3d560, 576–577 (CA6 2018). The argument goes like this. Title VII prohibits discrimination based on stereotypes about
the way men and women should behave; the belief that aperson should be attracted only to persons of the opposite
sex and the belief that a person should identify with his or
her biological sex are examples of such stereotypes; therefore, discrimination on either of these grounds is unlawful.
This argument fails because it is based on a faulty premise, namely, that Title VII forbids discrimination based on
sex stereotypes. It does not. It prohibits discrimination because of “sex,” and the two concepts are not the same. See
Price Waterhouse, 490 U. S., at 251. That does not mean,
however, that an employee or applicant for employment
cannot prevail by showing that a challenged decision was
based on a sex stereotype. Such evidence is relevant toprove 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 ina person of the opposite sex. See ibid.
Much of the plaintiff ’s evidence in Price Waterhouse wasof this nature. The plaintiff was a woman who was passed
over for partnership at an accounting firm, and some of theadverse comments about her work appeared to criticize herfor being forceful and insufficiently “feminin[e].” Id., at235–236.

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ALITO, J., dissenting

The main issue in Price Waterhouse––the proper allocation of the burdens of proof in a so-called mixed motives Title VII case—is not relevant here, but the plurality opinion,
endorsed by four Justices, commented on the issue of sex
stereotypes. The plurality observed that “sex stereotypes
do not inevitably prove that gender played a part in a particular employment decision” but “can certainly be evidence
that gender played a part.” Id., at 251.17 And the plurality
made it clear that “[t]he plaintiff must show that the employer actually relied on her gender in making its decision.”
Ibid.
Plaintiffs who allege that they were treated unfavorably
because of their sexual orientation or gender identity are
not in the same position as the plaintiff in Price Waterhouse. 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. “[H]eterosexuality is not a female stereotype; it not a male stereotype; it is not a sexspecific stereotype at all.” Hively, 853 F. 3d, at 370 (Sykes,
J., dissenting).
To be sure, there may be cases in which a gay, lesbian, ortransgender individual can make a claim like the one inPrice Waterhouse. That is, there may be cases where traits
or behaviors that some people associate with gays, lesbians,
or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a——————
17 Two other Justices concurred in the judgment but did not commenton the issue of stereotypes. See id., at 258–261 (opinion of White, J.); id.,
at 261–279 (opinion of O’Connor, J.). And Justice Kennedy reiterated onbehalf of the three Justices in dissent that “Title VII creates no independent cause of action for sex stereotyping,” but he added that “[e]vidence ofuse by decisionmakers of sex stereotypes is, of course, quite relevant to
the question of discriminatory intent.” Id., at 294.

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

different matter.
2
A second prominent argument made in support of the result that the Court now reaches analogizes discrimination
against gays and lesbians to discrimination against a person who is married to or has an intimate relationship witha person of a different race. Several lower court cases haveheld that discrimination on this ground violates Title VII.
See, e.g., Holcomb v. Iona College, 521 F. 3d 130 (CA2 2008);
Parr v. Woodmen of World Life Ins. Co., 791 F. 2d 888 (CA111986). 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.
This argument totally ignores the historically rooted reason why discrimination on the basis of an interracial relationship constitutes race discrimination. And without taking history into account, it is not easy to see how thedecisions in question fit the terms of Title VII.
Recall that Title VII makes it unlawful for an employer
to discriminate against an individual “because of such individual’s race.” 42 U. S. C. §2000e–2(a) (emphasis added).
So if an employer is happy to employ whites and blacks but
will not employ any employee in an interracial relationship,
how can it be said that the employer is discriminating
against either whites or blacks “because of such individual’srace”? This employer would be applying the same rule toall its employees regardless of their race.
The answer is that this employer is discriminating on a
ground that history tells us is a core form of race discrimination.18 “It would require absolute blindness to the history——————
18 Notably, Title VII recognizes that in light of history distinctions on
the basis of race are always disadvantageous, but it permits certain dis-Cite as: 590 U. S. ____ (2020)

21

ALITO, J., dissentingof racial discrimination in this country not to understandwhat is at stake in such cases . . . . A prohibition on ‘racemixing’ was . . . grounded in bigotry against a particular
race and was an integral part of preserving the rigid hierarchical distinction that denominated members of the black
race as inferior to whites.” 883 F. 3d, at 158–159 (Lynch,J., dissenting).
Discrimination because of sexual orientation is different.
It cannot be regarded as a form of sex discrimination on the
ground that applies in race cases since discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women. An employer who discriminates on this ground might be called“homophobic” or “transphobic,” but not sexist. See Wittmer
v. Phillips 66 Co., 915 F. 3d 328, 338 (CA5 2019) (Ho, J.,
concurring).
3
The opinion of the Court intimates that the term “sex”
was not universally understood in 1964 to refer just to thecategories of male and female, see ante, at 5, and while the
Court does not take up any alternative definition as aground for its decision, I will say a word on this subject.
As previously noted, the definitions of “sex” in the unabridged dictionaries in use in the 1960s are reproduced inAppendix A, infra. 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, maleand female, based on biology, and most of the definitions
further down the list are the same or very similar. In addition, some definitions refer to heterosexual sex acts. See——————
tinctions based on sex. Title 42 U. S. C. §2000e–2(e)(1) allows for “instances where religion, sex, or national origin is a bona fide occupational
qualification reasonably necessary to the normal operation of [a] particular business or enterprise.” Race is wholly absent from this list.

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

Random House Dictionary 1307 (“coitus,” “sexual intercourse” (defs. 5–6)); American Heritage Dictionary, at 1187(“sexual intercourse” (def. 5)).19
Aside from these, what is there? One definition, “to neckpassionately,” Random House Dictionary 1307 (def. 8), refers to sexual conduct that is not necessarily heterosexual.
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? And even if Title VII had that effect, that is notwhat is at issue in cases like those before us.
That brings us to the two remaining subsidiary definitions, both of which refer to sexual urges or instincts andtheir manifestations. See the fourth definition in the American Heritage Dictionary, at 1187 (“the sexual urge or instinct as it manifests itself in behavior”), and the fourth definition in both Webster’s Second and Third (“[p]henomenaof sexual instincts and their manifestations,” Webster’s
New International Dictionary, at 2296 (2d ed.); Webster’s
Third New International Dictionary 2081 (1966)). Sinceboth of these come after three prior definitions that refer tomen and women, they are most naturally read to have thesame association, and in any event, is it plausible that Title
VII prohibits discrimination based on any sexual urge or
instinct and its manifestations? The urge to rape?
Viewing all these definitions, the overwhelming impact isthat discrimination because of “sex” was understood during
the era when Title VII was enacted to refer to men andwomen. (The same is true of current definitions, which are
reproduced in Appendix B, infra.) This no doubt explains
why neither this Court nor any of the lower courts have
tried to make much of the dictionary definitions of sex just——————
19 See American Heritage Dictionary 1188 (1969) (defining “sexual intercourse”); Webster’s Third New International Dictionary 2082 (1966)(same); Random House Dictionary of the English Language 1308 (1966)(same).

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discussed.
II
A
So far, I have not looked beyond dictionary definitions of“sex,” but textualists like Justice Scalia do not confine theirinquiry to the scrutiny of dictionaries. See Manning, Textualism and the Equity of the Statute, 101 Colum. L. Rev.
1, 109 (2001). Dictionary definitions are valuable because
they are evidence of what people at the time of a statute’s
enactment would have understood its words to mean. Ibid.
But they are not the only source of relevant evidence, andwhat matters in the end is the answer to the question thatthe evidence is gathered to resolve: How would the terms ofa statute have been understood by ordinary people at thetime of enactment?
Justice Scalia was perfectly clear on this point. The
words of a law, he insisted, “mean what they conveyed toreasonable people at the time.” Reading Law, at 16 (emphasis added).20
Leading proponents of Justice Scalia’s school of textualism have expounded on this principle and explained that itis grounded on an understanding of the way language
works. As Dean John F. Manning explains, “the meaningof language depends on the way a linguistic community
uses words and phrases in context.” What Divides Textualists From Purposivists? 106 Colum. L. Rev. 70, 78 (2006).
“[O]ne can make sense of others’ communications only byplacing them in their appropriate social and linguistic context,” id., at 79–80, and this is no less true of statutes thanany other verbal communications. “[S]tatutes convey
meaning only because members of a relevant linguistic——————
20 See also Chisom v. Roemer, 501 U. S. 380, 405 (1991) (Scalia, J., dissenting) (“We are to read the words of [a statutory] text as any ordinary
Member of Congress would have read them . . . and apply the meaning
so determined”).

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community apply shared background conventions for understanding how particular words are used in particular
contexts.” Manning, The Absurdity Doctrine, 116 Harv. L.
Rev. 2387, 2457 (2003). 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. L. Rev.,
at 77. Or, to put the point in slightly different terms, ajudge interpreting a statute should ask “ ‘what one would
ordinarily be understood as saying, given the circumstancesin which one said it.’ ” Manning, 116 Harv. L. Rev., at 2397–
2398.
Judge Frank Easterbrook has made the same points:“Words are arbitrary signs, having meaning only to theextent writers and readers share an understanding. . . .
Language in general, and legislation in particular, is asocial enterprise to which both speakers and listeners
contribute, drawing on background understandings
and the structure and circumstances of the utterance.”
Herrmann v. Cencom Cable Assocs., Inc., 978 F. 2d 978,982 (CA7 1992).
Consequently, “[s]licing a statute into phrases while ignoring . . . the setting of the enactment . . . is a formula fordisaster.” 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”).
Thus, when textualism is properly understood, it calls foran examination of the social context in which a statute wasenacted because this may have an important bearing on
what its words were understood to mean at the time of enactment. Textualists do not read statutes as if they weremessages picked up by a powerful radio telescope from a

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ALITO, J., dissenting

distant and utterly unknown civilization. Statutes consistof communications between members of a particular linguistic community, one that existed in a particular place
and at a particular time, and these communications must
therefore be interpreted as they were understood by that
community at that time.
For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibitionof discrimination because of sex. To get a picture of this, we
may imagine this scene. Suppose that, while Title VII wasunder consideration in Congress, a group of average Americans decided to read the text of the bill with the aim of
writing or calling their representatives in Congress andconveying their approval or disapproval. What would theseordinary citizens have taken “discrimination because ofsex” to mean? Would they have thought that this language
prohibited discrimination because of sexual orientation orgender identity?
B
The answer could not be clearer. 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. The
ordinary meaning of discrimination because of “sex” wasdiscrimination because of a person’s biological sex, not sexual orientation or gender identity. The possibility that discrimination on either of these grounds might fit withinsome exotic understanding of sex discrimination would nothave crossed their minds.
1
In 1964, the concept of prohibiting discrimination “because of sex” was no novelty. It was a familiar and wellunderstood concept, and what it meant was equal treatment for men and women.

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Long before Title VII was adopted, many pioneering stateand federal laws had used language substantively indistinguishable from Title VII’s critical phrase, “discrimination
because of sex.” For example, the California Constitutionof 1879 stipulated that no one, “on account of sex, [could] bedisqualified from entering upon or pursuing any lawful
business, vocation, or profession.” Art. XX, §18 (emphasis
added). It also prohibited a student’s exclusion from any
state university department “on account of sex.” Art. IX,§9; accord, Mont. Const., Art. XI, §9 (1889).
Wyoming’s first Constitution proclaimed broadly that“[b]oth male and female citizens of this state shall equally
enjoy all civil, political and religious rights and privileges,”
Art. VI, §1 (1890), and then provided specifically that “[i]nnone of the public schools . . . shall distinction or discrimination be made on account of sex,” Art. VII, §10 (emphasis
added); see also §16 (the “university shall be equally open
to students of both sexes”). Washington’s Constitution likewise required “ample provision for the education of all children . . . without distinction or preference on account of . . .
sex.” Art. IX, §1 (1889) (emphasis added).
The Constitution of Utah, adopted in 1895, provided thatthe right to vote and hold public office “shall not be denied
or abridged on account of sex.” Art. IV, §1 (emphasis added).
And in the next sentence it made clear what “on account ofsex” meant, stating that “[b]oth male and female citizens. . . shall enjoy equally all civil, political and religious rights
and privileges.” Ibid.
The most prominent example of a provision using thislanguage was the Nineteenth Amendment, ratified in 1920,
which bans the denial or abridgment of the right to vote “onaccount of sex.” U. S. Const., Amdt. 19. Similar language
appeared in the proposal of the National Woman’s Party for
an Equal Rights Amendment. 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.”

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Women Lawyers Meet: Representatives of 20 States Endorse Proposed Equal Rights Amendment, N. Y. Times,
Sept. 16, 1921, p. 10.
Similar terms were used in the precursor to the Equal
Pay Act. 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 1952, the new Constitution for Puerto Rico, which wasapproved by Congress, 66 Stat. 327, prohibited all “discrimination . . . on account of . . . sex,” Art. II, Bill of Rights §1(emphasis added), and in the landmark Immigration andNationality Act of 1952, Congress outlawed discriminationin naturalization “because of . . . sex.” 8 U. S. C. §1422 (emphasis added).
In 1958, the International Labour Organisation, a United
Nations agency of which the United States is a member,recommended that nations bar employment discrimination“made on the basis of . . . sex.” Convention (No. 111) Concerning Discrimination in Respect of Employment and Occupation, Art. 1(a), June 25, 1958, 362 U. N. T. S. 32 (emphasis added).
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.”21 He concurrently established a“Commission on the Status of Women” and directed it torecommend policies “for overcoming discriminations in government and private employment on the basis of sex.” Exec.
Order No. 10980, 3 CFR 138 (1961 Supp.) (emphasis——————
21 J. Kennedy, Statement by the President on the Establishment of
the 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.

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added).
In short, the concept of discrimination “because of,” “onaccount of,” or “on the basis of ” sex was well understood. It
was part of the campaign for equality that had been waged
by women’s rights advocates for more than a century, andwhat it meant was equal treatment for men and women.22
2
Discrimination “because of sex” was not understood ashaving anything to do with discrimination because of sexual orientation or transgender status. Any such notion
would have clashed in spectacular fashion with the societal
norms of the day.
For most 21st-century Americans, it is painful to be reminded of the way our society once treated gays and lesbians, but any honest effort to understand what the terms of
Title VII were understood to mean when enacted must take
into account the societal norms of that time. And the plain
truth is that in 1964 homosexuality was thought to be amental disorder, and homosexual conduct was regarded as
morally culpable and worthy of punishment.
——————
22 Analysis of the way Title VII’s key language was used in books andarticles during the relevant time period supports this conclusion. A
study searched a vast database of documents from that time to determine
how the phrase “discriminate against . . . because of [some trait]” wasused. 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. The study found that the phrase was used to denote
discrimination against “someone . . . motivated by prejudice, or biased
ideas or attitudes . . . directed at people with that trait in particular.”Id., at 7 (emphasis deleted). In other words, “discriminate against” was“associated with negative treatment directed at members of a discretegroup.” Id., at 5. Thus, as used in 1964, “discrimination because of sex”
would have been understood to mean discrimination against a woman ora man based on “unfair beliefs or attitudes” about members of that particular sex. Id., at 7.

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In its then-most recent Diagnostic and Statistical Manualof Mental Disorders (1952) (DSM–I), the American Psychiatric Association (APA) classified same-sex attraction as a“sexual deviation,” a particular type of “sociopathic personality disturbance,” id., at 38–39, and the next edition, issued in 1968, similarly classified homosexuality as a “sexual deviatio[n],” Diagnostic and Statistical Manual of
Mental Disorders 44 (2d ed.) (DSM–II). It was not until thesixth printing of the DSM–II in 1973 that this waschanged.23
Society’s treatment of homosexuality and homosexual
conduct was consistent with this understanding. Sodomy
was a crime in every State but Illinois, see W. Eskridge,
Dishonorable Passions 387–407 (2008), and in the Districtof Columbia, a law enacted by Congress made sodomy a felony punishable by imprisonment for up to 10 years and permitted the indefinite civil commitment of “sexual psychopath[s],” Act of June 9, 1948, §§104, 201–207, 62 Stat. 347–
349.24——————
23 APA, Homosexuality and Sexual Orientation Disturbance: Proposed
Change in DSM–II, 6th Printing, p. 44 (APA Doc. Ref. No. 730008, 1973)(reclassifying “homosexuality” as a “[s]exual orientation disturbance,” acategory “for individuals whose sexual interests are directed primarily
toward people of the same sex and who are either disturbed by . . . orwish to change their sexual orientation,” and explaining that “homosexuality . . . by itself does not constitute a psychiatric disorder”); see also
APA, Diagnostic and Statistical Manual of Mental Disorders 281–282 (3ded. 1980) (DSM–III) (similarly creating category of “Ego-dystonic Homosexuality” for “homosexuals for whom changing sexual orientation is apersistent concern,” while observing that “homosexuality itself is not considered a mental disorder”); Obergefell v. Hodges, 576 U. S. 644, 661(2015).
24 In 1981, after achieving home rule, the District attempted to decriminalize sodomy, see D. C. Act No. 4–69, but the House of Representatives
vetoed the bill, H. Res. 208, 97th Cong., 1st Sess. (1981); 127 Cong. Rec.
22764–22779 (1981). Sodomy was not decriminalized in the District until 1995. See Anti-Sexual Abuse Act of 1994, §501(b), 41 D. C. Reg. 53(1995), enacted as D. C. Law 10–257.

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This view of homosexuality was reflected in the rules governing the federal work force. In 1964, federal “[a]gencies
could deny homosexual men and women employment because of their sexual orientation,” and this practice continued until 1975. GAO, D. Heivilin, Security Clearances:
Consideration of Sexual Orientation in the Clearance Process 2 (GAO/NSIAD–95–21, 1995). See, e.g., Anonymous v.
Macy, 398 F. 2d 317, 318 (CA5 1968) (affirming dismissal of
postal employee for homosexual acts).
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. 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. OrderNo. 10450, §8(a)(1)(iii), 3 CFR 938 (1949–1953 Comp.).
“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 weredenied or revoked because of their sexual orientation.”
GAO, Security Clearances, at 2. See, e.g., Adams v. Laird,
420 F. 2d 230, 240 (CADC 1969) (upholding denial of security clearance to defense contractor employee because hehad “engaged in repeated homosexual acts”); see also Webster v. Doe, 486 U. S. 592, 595, 601 (1988) (concluding thatdecision to fire a particular individual because he was homosexual fell within the “discretion” of the Director of Central Intelligence under the National Security Act of 1947
and thus was unreviewable under the APA).
The picture in state employment was similar. In 1964, it
was common for States to bar homosexuals from serving asteachers. An article summarizing the situation 15 years after Title VII became law reported that “[a]ll states havestatutes that permit the revocation of teaching certificatesCite as: 590 U. S. ____ (2020)

31

ALITO, J., dissenting(or credentials) for immorality, moral turpitude, or unprofessionalism,” and, the survey added, “[h]omosexuality is
considered to fall within all three categories.”25
The situation in California is illustrative. California laws
prohibited individuals who engaged in “immoral conduct”(which was construed to include homosexual behavior), as
well as those convicted of “sex offenses” (like sodomy), from
employment as teachers. Cal. Educ. Code Ann. §§13202,
13207, 13209, 13218, 13255 (West 1960). The teaching certificates of individuals convicted of engaging in homosexualacts were revoked. See, e.g., Sarac v. State Bd. of Ed., 249
Cal. App. 2d 58, 62–64, 57 Cal. Rptr. 69, 72–73 (1967) (upholding revocation of secondary teaching credential fromteacher who was convicted of engaging in homosexual conduct on public beach), overruled in part, Morrison v. State
Bd. of Ed., 1 Cal. 3d 214, 461 P. 2d 375 (1969).
In Florida, the legislature enacted laws authorizing the
revocation of teaching certificates for “misconduct involving
moral turpitude,” Fla. Stat. Ann. §229.08(16) (1961), andthis law was used to target homosexual conduct. In 1964,
a legislative committee was wrapping up a 6-year campaign
to remove homosexual teachers from public schools andstate universities. As a result of these efforts, the stateboard of education apparently revoked at least 71 teachers’
certificates and removed at least 14 university professors.
Eskridge, Dishonorable Passions, at 103.
Individuals who engaged in homosexual acts also faced
the loss of other occupational licenses, such as those needed
to work as a “lawyer, doctor, mortician, [or] beautician.”26
See, e.g., Florida Bar v. Kay, 232 So. 2d 378 (Fla. 1970) (attorney disbarred after conviction for homosexual conduct in——————
25 Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 Hastings L. J. 799, 861 (1979).
26 Eskridge, Challenging the Apartheid of the Closet: Establishing
Conditions for Lesbian and Gay Intimacy, Nomos, and Citizenship,
1961–1981, 25 Hofstra L. Rev. 817, 819 (1997).

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

public bathroom).
In 1964 and for many years thereafter, homosexuals werebarred from the military. See, e.g., Army Reg. 635–89, §I(2)(a) (July 15, 1966) (“Personnel who voluntarily engage inhomosexual acts, irrespective of sex, will not be permitted
to serve in the Army in any capacity, and their prompt separation is mandatory”); Army Reg. 600–443, §I(2) (April 10,1953) (similar). Prohibitions against homosexual conduct
by members of the military were not eliminated until 2010.
See Don’t Ask, Don’t Tell Repeal Act of 2010, 124 Stat. 3515
(repealing 10 U. S. C. §654, which required members of theArmed Forces to be separated for engaging in homosexual
conduct).
Homosexuals were also excluded from entry into theUnited States. The Immigration and Nationality Act of1952 (INA) excluded aliens “afflicted with psychopathic personality.” 8 U. S. C. §1182(a)(4) (1964 ed.). In Boutilier v.
INS, 387 U. S. 118, 120–123 (1967), this Court, relying on
the INA’s legislative history, interpreted that term to encompass homosexuals and upheld an alien’s deportation onthat ground. Three Justices disagreed with the majority’s
interpretation of the phrase “psychopathic personality.”27
But it apparently did not occur to anyone to argue that the
Court’s interpretation was inconsistent with the INA’s express prohibition of discrimination “because of sex.” That
was how our society—and this Court—saw things a half
century ago. Discrimination because of sex and discrimination because of sexual orientation were viewed as two entirely different concepts.
To its credit, our society has now come to recognize theinjustice of past practices, and this recognition provides theimpetus to “update” Title VII. But that is not our job. Our——————
27 Justices Douglas and Fortas thought that a homosexual is merely“one, who by some freak, is the product of an arrested development.”
Boutilier, 387 U. S., at 127 (Douglas, J., dissenting); see also id., at 125(Brennan, J., dissenting) (based on lower court dissent).

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ALITO, J., dissenting

duty is to understand what the terms of Title VII were understood to mean when enacted, and in doing so, we musttake into account the societal norms of that time. We must
therefore ask whether ordinary Americans in 1964 would
have thought that discrimination because of “sex” carriedsome exotic meaning under which private-sector employers
would be prohibited from engaging in a practice that represented the official policy of the Federal Government withrespect to its own employees. We must ask whether Americans at that time would have thought that Title VII banned
discrimination against an employee for engaging in conductthat Congress had made a felony and a ground for civil
commitment.
The questions answer themselves. Even if discrimination
based on sexual orientation or gender identity could besqueezed 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. To paraphrase something Justice Scalia once wrote, “our job is not to scavenge the worldof English usage to discover whether there is any possible
meaning” of discrimination because of sex that might bebroad enough to encompass discrimination because of sexual orientation or gender identity. Chisom v. Roemer, 501
U. S. 380, 410 (1991) (dissenting opinion). Without strong
evidence to the contrary (and there is none here), our job isto ascertain and apply the “ordinary meaning” of the statute. Ibid. And in 1964, ordinary Americans most certainly
would not have understood Title VII to ban discrimination
because of sexual orientation or gender identity.
The Court makes a tiny effort to suggest that at least
some people in 1964 might have seen what Title VII reallymeans. Ante, at 26. What evidence does it adduce? One
complaint filed in 1969, another filed in 1974, and arguments made in the mid-1970s about the meaning of theEqual Rights Amendment. Ibid. To call this evidence

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

merely feeble would be generous.
C
While Americans in 1964 would have been shocked tolearn that Congress had enacted a law prohibiting sexual
orientation discrimination, they would have been bewildered to hear that this law also forbids discrimination on
the basis of “transgender status” or “gender identity,” terms
that would have left people at the time scratching theirheads. The term “transgender” is said to have been coined“ ‘in the early 1970s,’ ”28 and the term “gender identity,” now
understood to mean “[a]n internal sense of being male, female or something else,”29 apparently first appeared in an
academic article in 1964.30 Certainly, neither term was incommon parlance; indeed, dictionaries of the time still primarily defined the word “gender” by reference to grammatical classifications. See, e.g., American Heritage Dictionary, at 548 (def. 1(a)) (“Any set of two or more categories,
such as masculine, feminine, and neuter, into which words
are divided . . . and that determine agreement with or the——————
28 Drescher, Transsexualism, Gender Identity Disorder and the DSM,
14 J. Gay & Lesbian Mental Health 109, 110 (2010).
29 American Psychological Association, 49 Monitor on Psychology, at
32.
30 Green, Robert Stoller’s Sex and Gender: 40 Years On, 39 Archives
Sexual Behav. 1457 (2010); see Stoller, A Contribution to the Study ofGender Identity, 45 Int’l J. Psychoanalysis 220 (1964). The term appears
to have been coined a year or two earlier. See Haig, The Inexorable Riseof Gender and the Decline of Sex: Social Change in Academic Titles,
1945–2001, 33 Archives Sexual Behav. 87, 93 (2004) (suggesting theterm was first introduced at 23rd International Psycho-Analytical Congress in Stockholm in 1963); J. Meyerowitz, How Sex Changed 213 (2002)(referring to founding of “Gender Identity Research Clinic” at UCLA in
1962). In his book, Sex and Gender, published in 1968, Robert Stoller
referred to “gender identity” as “a working term” “associated with” hisresearch team but noted that they were not “fixed on copyrighting theterm or on defending the concept as one of the splendors of the scientificworld.” Sex and Gender, p. viii.

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35

ALITO, J., dissenting

selection of modifiers, referents, or grammatical forms”).
While it is likely true that there have always been individuals who experience what is now termed “gender dysphoria,” i.e., “[d]iscomfort or distress related to an incongruence between an individual’s gender identity and thegender assigned at birth,”31 the current understanding of
the concept postdates the enactment of Title VII. Nothing
resembling what is now called gender dysphoria appearedin either DSM–I (1952) or DSM–II (1968). It was not until
1980 that the APA, in DSM–III, recognized two main psychiatric diagnoses related to this condition, “Gender Identity Disorder of Childhood” and “Transsexualism” in adolescents and adults.32 DSM–III, at 261–266.
The first widely publicized sex reassignment surgeries in
the United States were not performed until 1966,33 and thegreat majority of physicians surveyed in 1969 thought thatan individual who sought sex reassignment surgery was either “ ‘severely neurotic’ ” or “ ‘psychotic.’ ”34
It defies belief to suggest that the public meaning of discrimination because of sex in 1964 encompassed discrimination on the basis of a concept that was essentially unknown to the public at that time.
D
1
The Court’s main excuse for entirely ignoring the social
context in which Title VII was enacted is that the meaningof Title VII’s prohibition of discrimination because of sex is——————
31 American Psychological Association, 49 Monitor on Psychology, at
32.
32 See Drescher, supra, at 112.
33 Buckley, A Changing of Sex by Surgery Begun at Johns Hopkins,
N. Y. Times, Nov. 21, 1966, p. 1, col. 8; see also J. Meyerowitz, How Sex
Changed 218–220 (2002).
34 Drescher, supra, at 112 (quoting Green, Attitudes Toward Transsexualism and Sex-Reassignment Procedures, in Transsexualism and Sex
Reassignment 241–242 (R. Green & J. Money eds. 1969)).

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

clear, and therefore it simply does not matter whether people in 1964 were “smart enough to realize” what its language means. Hively, 853 F. 3d, at 357 (Posner, J., concurring). According to the Court, an argument that looks tothe societal norms of those times represents an impermissible attempt to displace the statutory language. Ante, at
25–26.
The Court’s argument rests on a false premise. As already explained at length, the text of Title VII does not prohibit discrimination because of sexual orientation or gender
identity. And what the public thought about those issues
in 1964 is relevant and important, not because it provides
a ground for departing from the statutory text, but because
it helps to explain what the text was understood to mean
when adopted.
In arguing that we must put out of our minds what weknow about the time when Title VII was enacted, the Court
relies on Justice Scalia’s opinion for the Court in Oncale v.
Sundowner Offshore Services, Inc., 523 U. S. 75 (1998). But
Oncale is nothing like these cases, and no one should betaken in by the majority’s effort to enlist Justice Scalia in
its updating project.
The Court’s unanimous decision in Oncale was thoroughly unremarkable. The Court held that a male employee who alleged that he had been sexually harassed atwork by other men stated a claim under Title VII. Although
the impetus for Title VII’s prohibition of sex discrimination
was to protect women, anybody reading its terms would immediately appreciate that it applies equally to both sexes,
and by the time Oncale reached the Court, our precedentalready established that sexual harassment may constitutesex discrimination within the meaning of Title VII. See
Meritor Savings Bank, FSB v. Vinson, 477 U. S. 57 (1986).
Given these premises, syllogistic reasoning dictated theholding.

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37

ALITO, J., dissenting

What today’s decision latches onto are Oncale’s comments about whether “ ‘male-on-male sexual harassment’ ”
was on Congress’s mind when it enacted Title VII. Ante, at
28 (quoting 523 U. S., at 79). The Court in Oncale observedthat this specific type of behavior “was assuredly not the
principal evil Congress was concerned with when it enacted
Title VII,” but it found that immaterial because “statutory
prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisionsof our laws rather than the principal concerns of our legislators by which we are governed.” 523 U. S., at 79 (emphasis added).
It takes considerable audacity to read these comments ascommitting the Court to a position on deep philosophicalquestions about the meaning of language and their implications for the interpretation of legal rules. These comments
are better understood as stating mundane and uncontroversial truths. Who would argue that a statute applies only to
the “principal evils” and not lesser evils that fall within theplain scope of its terms? Would even the most ardent “purposivists” and fans of legislative history contend thatcongressional intent is restricted to Congress’s “principal
concerns”?
Properly understood, Oncale does not provide the slightest support for what the Court has done today. For one
thing, it would be a wild understatement to say that discrimination because of sexual orientation and transgenderstatus was not the “principal evil” on Congress’s mind in
1964. Whether we like to admit it now or not, in the thinking of Congress and the public at that time, such discrimination would not have been evil at all.
But the more important difference between these cases
and Oncale is that here the interpretation that the Court
adopts does not fall within the ordinary meaning of the statutory text as it would have been understood in 1964. To

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

decide for the defendants in Oncale, it would have been necessary to carve out an exception to the statutory text. Here,no such surgery is at issue. Even if we totally disregard thesocietal norms of 1964, the text of Title VII does not support
the Court’s holding. And the reasoning of Oncale does notpreclude or counsel against our taking those norms into account. They are relevant, not for the purpose of creating an
exception to the terms of the statute, but for the purpose of
better appreciating how those terms would have been understood at the time.
2
The Court argues that two other decisions––Phillips v.
Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam),and Los Angeles Dept. of Water and Power v. Manhart, 435
U. S. 702 (1978)––buttress its decision, but those cases
merely held that Title VII prohibits employer conduct thatplainly constitutes discrimination because of biological sex.
In Philips, the employer treated women with young children less favorably than men with young children. In Manhart, the employer required women to make larger pension
contributions than men. It is hard to see how these holdings assist the Court.
The Court extracts three “lessons” from Phillips, Manhart, and Oncale, but none sheds any light on the question
before us. 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.
This lesson is obviously true but proves nothing. As to thelabel attached to a practice, has anyone ever thought thatthe application of a law to a person’s conduct depends on
how it is labeled? Could a bank robber escape conviction bysaying he was engaged in asset enhancement? So if an employer discriminates because of sex, the employer is liableno matter what it calls its conduct, but if the employer’s

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39

ALITO, J., dissenting

conduct is not sex discrimination, the statute does not apply. Thus, this lesson simply takes us back to the question
whether discrimination because of sexual orientation orgender identity is a form of discrimination because of biological sex. For reasons already discussed, see Part I–A,
supra, it is not.
It likewise proves nothing of relevance here to note thatan employer cannot escape liability by showing that discrimination on a prohibited ground was not its sole motivation. So long as a prohibited ground was a motivating factor, the existence of other motivating factors does not defeat
liability.
The Court makes much of the argument that “[i]n Phillips, the employer could have accurately spoken of its policy
as one based on ‘motherhood.’ ” Ante, at 14; see also ante,
at 16. But motherhood, by definition, is a condition that canbe experienced only by women, so a policy that distinguishes between motherhood and parenthood is necessarilya policy that draws a sex-based distinction. There was sex
discrimination in Phillips, because women with children
were treated disadvantageously compared to men withchildren.
Lesson number two—“the plaintiff ’s sex need not be thesole or primary cause of the employer’s adverse action,”ante, at 14—is similarly unhelpful. The standard of causation in these cases is whether sex is necessarily a “motivating factor” when an employer discriminates on the basis ofsexual orientation or gender identity. 42 U. S. C. §2000e–2(m). But the essential question—whether discrimination
because of sexual orientation or gender identity constitutes
sex discrimination—would be the same no matter what causation standard applied. The Court’s extensive discussionof causation standards is so much smoke.
Lesson number three––“an employer cannot escape liability by demonstrating that it treats males and females
comparably as groups,” ante, at 15, is also irrelevant. There40

BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

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. Nor does it matter if an employer discriminates against only a subset ofmen or women, where the same subset of the opposite sex
is treated differently, as in Phillips. That is not the issue
here. An employer who discriminates equally on the basisof sexual orientation or gender identity applies the same
criterion to every affected individual regardless of sex. See
Part I–A, supra.
III
A
Because the opinion of the Court flies a textualist flag, I
have taken pains to show that it cannot be defended on textualist grounds. But even if the Court’s textualist argument were stronger, that would not explain today’s decision. 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.
Instead, when there is ambiguity in the terms of a statute,
they have found it appropriate to look to other evidence of“congressional intent,” including legislative history.
So, why in these cases are congressional intent and thelegislative history of Title VII totally ignored? Any assessment of congressional intent or legislative history seriously
undermines the Court’s interpretation.
B
As the Court explained in General Elec. Co. v. Gilbert, 429
U. S. 125, 143 (1976), the legislative history of Title VII’s
prohibition of sex discrimination is brief, but it is nevertheless revealing. The prohibition of sex discrimination was“added to Title VII at the last minute on the floor of theCite as: 590 U. S. ____ (2020)

41

ALITO, J., dissenting

House of Representatives,” Meritor Savings Bank, 477
U. S., at 63, by Representative Howard Smith, the Chairman of the Rules Committee. See 110 Cong. Rec. 2577
(1964). Representative Smith had been an ardent opponentof the civil rights bill, and it has been suggested that headded the prohibition against discrimination on the basis of“sex” as a poison pill. See, e.g., Ulane v. Eastern Airlines,
Inc., 742 F. 2d 1081, 1085 (CA7 1984). On this theory, Representative Smith thought that prohibiting employment
discrimination against women would be unacceptable toMembers who might have otherwise voted in favor of thebill and that the addition of this prohibition might bringabout the bill’s defeat.35 But if Representative Smith had
been looking for a poison pill, prohibiting discrimination on
the basis of sexual orientation or gender identity would
have been far more potent. However, neither Representative Smith nor any other Member said one word about thepossibility that the prohibition of sex discrimination might
have that meaning. Instead, all the debate concerned discrimination on the basis of biological sex.36 See 110 Cong.
Rec. 2577–2584.
Representative Smith’s motivations are contested, 883 F.
3d, at 139–140 (Lynch, J., dissenting), but whatever they——————
35 See Osterman, Origins of a Myth: Why Courts, Scholars, and the
Public Think Title VII’s Ban on Sex Discrimination Was an Accident, 20
Yale J. L. & Feminism 409, 409–410 (2009).
36 Recent scholarship has linked the adoption of the Smith Amendment
to the broader campaign for women’s rights that was underway at thetime. E.g., Osterman, supra; Freeman, How Sex Got Into Title VII: Persistent Opportunism as a Maker of Public Policy, 9 L. & Ineq. 163 (1991);
Barzilay, Parenting Title VII: Rethinking the History of the Sex Discrimination Provision, 28 Yale J. L. & Feminism 55 (2016); Gold, A Tale of
Two Amendments: The Reasons Congress Added Sex to Title VII and
Their Implication for the Issue of Comparable Worth, 19 Duquesne L.
Rev. 453 (1981). None of these studies has unearthed evidence that theamendment was understood to apply to discrimination because of sexual
orientation or gender identity.

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were, the meaning of the adoption of the prohibition of sex
discrimination is clear. It was no accident. It grew out of“a long history of women’s rights advocacy that had increasingly been gaining mainstream recognition and acceptance,” and it marked a landmark achievement in thepath toward fully equal rights for women. Id., at 140. “Discrimination against gay women and men, by contrast, was
not on the table for public debate . . . [i]n those dark, preStonewall days.” Ibid.
For those who regard congressional intent as the touchstone of statutory interpretation, the message of Title VII’s
legislative history cannot be missed.
C
Post-enactment events only clarify what was apparent
when Title VII was enacted. As noted, bills to add “sexual
orientation” to Title VII’s list of prohibited grounds were introduced in every Congress beginning in 1975, see supra, at
2, and two such bills were before Congress in 199137 when
it made major changes in Title VII. At that time, the three
Courts of Appeals to reach the issue had held that Title VII
does not prohibit discrimination because of sexual orientation,38 two other Circuits had endorsed that interpretationin dicta,39 and no Court of Appeals had held otherwise. Similarly, the three Circuits to address the application of Title
VII to transgender persons had all rejected the argument——————
37 H. R. 1430, 102d Cong., 1st Sess., §2(d) (as introduced in the House
on Mar. 13, 1991); S. 574, 102d Cong., 1st Sess., §5 (as introduced in the
Senate on Mar. 6, 1991).
38 See Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70 (CA81989) (per curiam), cert. denied, 493 U. S. 1089 (1990); DeSantis v. Pacific Tel. & Tel. Co., 608 F. 2d 327, 329–330 (CA9 1979); Blum v. Gulf Oil
Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam).
39 Ruth v. Children’s Med. Ctr., 1991 WL 151158, *5 (CA6, Aug. 8,
1991) (per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084–
1085 (CA7 1984), cert. denied, 471 U. S. 1017 (1985).

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43

ALITO, J., dissentingthat it covered discrimination on this basis.40 These werealso the positions of the EEOC.41 In enacting substantialchanges to Title VII, the 1991 Congress abrogated numerous judicial decisions with which it disagreed. If it also disagreed with the decisions regarding sexual orientation andtransgender discrimination, it could have easily overruled
those as well, but it did not do so.42
After 1991, six other Courts of Appeals reached the issueof sexual orientation discrimination, and until 2017, every
single Court of Appeals decision understood Title VII’s prohibition of “discrimination because of sex” to mean discrimination because of biological sex. See, e.g., Higgins v. New
Balance Athletic Shoe, Inc., 194 F. 3d 252, 259 (CA1
1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA22000); Bibby v. Philadelphia Coca Cola Bottling Co., 260 F.
3d 257, 261 (CA3 2001), cert. denied, 534 U. S. 1155
(2002); Wrightson v. Pizza Hut of Am., Inc., 99 F. 3d 138,
143 (CA4 1996); Hamm v. Weyauwega Milk Products,
Inc., 332 F. 3d 1058, 1062 (CA7 2003); Medina v. Income
Support Div., N. M., 413 F. 3d 1131, 1135 (CA10 2005); Evans v. Georgia Regional Hospital, 850 F. 3d 1248, 1255
(CA11), cert. denied, 583 U. S. ___ (2017). Similarly, theother Circuit to formally address whether Title VII applies
to claims of discrimination based on transgender status had
also rejected the argument, creating unanimous consensus
prior to the Sixth Circuit’s decision below. See Etsitty v.
Utah Transit Authority, 502 F. 3d 1215, 1220–1221 (CA10——————
40 See Ulane, 742 F. 2d, at 1084–1085; Sommers v. Budget Mktg., Inc.,
667 F. 2d 748, 750 (CA8 1982) (per curiam); Holloway v. Arthur Andersen& Co., 566 F. 2d 659, 661–663 (CA9 1977).
41 Dillon v. Frank, 1990 WL 1111074, *3–*4 (EEOC, Feb. 14, 1990);
LaBate v. USPS, 1987 WL 774785, *2 (EEOC, Feb. 11, 1987).
42 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. See, e.g., 18 U. S. C. §249(a)(2)(A) (hatecrimes) (enacted 2009); 34 U. S. C. §12291(b)(13)(A) (certain federally
funded programs) (enacted 2013).

44

BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting2007).
The Court observes that “[t]he people are entitled to relyon the law as written, without fearing that courts might
disregard its plain terms,” ante, at 24, but it has no qualms
about disregarding over 50 years of uniform judicial interpretation of Title VII’s plain text. Rather, the Court makes
the jaw-dropping statement that its decision exemplifies“judicial humility.” Ante, at 31. Is it humble to maintain,
not only that Congress did not understand the terms it enacted in 1964, but that all the Circuit Judges on all the pre2017 cases could not see what the phrase discrimination“because of sex” really means? If today’s decision is humble,
it is sobering to imagine what the Court might do if it decided to be bold.
IV
What the Court has done today––interpreting discrimination because of “sex” to encompass discrimination because of sexual orientation or gender identity––is virtuallycertain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex. See
Appendix C, infra; e.g., 20 U. S. C. §1681(a) (Title IX); 42
U. S. C. §3631 (Fair Housing Act); 15 U. S. C. 1691(a)(1)(Equal Credit Opportunity Act). The briefs in these cases
have called to our attention the potential effects that the
Court’s reasoning may have under some of these laws, but
the Court waves those considerations aside. As to Title VII
itself, the Court dismisses questions about “bathrooms,
locker rooms, or anything else of the kind.” Ante, at 31. And
it declines to say anything about other statutes whoseterms mirror Title VII’s.
The Court’s brusque refusal to consider the consequencesof its reasoning is irresponsible. If the Court had allowed
the legislative process to take its course, Congress would
have had the opportunity to consider competing interestsand might have found a way of accommodating at leastCite as: 590 U. S. ____ (2020)

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some of them. In addition, Congress might have crafted
special rules for some of the relevant statutes. But by intervening and proclaiming categorically that employment
discrimination based on sexual orientation or gender identity is simply a form of discrimination because of sex, theCourt has greatly impeded—and perhaps effectively
ended—any chance of a bargained legislative resolution.
Before issuing today’s radical decision, the Court shouldhave given some thought to where its decision would lead.
As the briefing in these cases has warned, the position
that the Court now adopts will threaten freedom of religion,
freedom of speech, and personal privacy and safety. No one
should think that the Court’s decision represents an unalloyed victory for individual liberty.
I will briefly note some of the potential consequences of
the Court’s decision, but I do not claim to provide a comprehensive survey or to suggest how any of these issues shouldnecessarily play out under the Court’s reasoning.43“[B]athrooms, locker rooms, [and other things] of [that]kind.” The Court may wish to avoid this subject, but it is amatter of concern to many people who are reticent about
disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For
some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing
an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker
room can cause serious psychological harm.44
Under the Court’s decision, however, transgender persons will be able to argue that they are entitled to use abathroom or locker room that is reserved for persons of the——————
43 Contrary to the implication in the Court’s opinion, I do not label
these potential consequences “undesirable.” Ante, at 31. I mention them
only as possible implications of the Court’s reasoning.
44 Brief for Defend My Privacy et al. as Amici Curiae 7–10.

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sex with which they identify, and while the Court does notdefine what it means by a transgender person, the term
may apply to individuals who are “gender fluid,” that is, individuals whose gender identity is mixed or changes overtime.45 Thus, a person who has not undertaken any physical transitioning may claim the right to use the bathroom
or locker room assigned to the sex with which the individual
identifies at that particular time. The Court provides noclue why a transgender person’s claim to such bathroom orlocker room access might not succeed.
A similar issue has arisen under Title IX, which prohibits
sex discrimination by any elementary or secondary school
and any college or university that receives federal financial
assistance.46 In 2016, a Department of Justice advisory
warned that barring a student from a bathroom assigned toindividuals of the gender with which the student identifies
constitutes unlawful sex discrimination,47 and some lower
court decisions have agreed. See Whitaker v. Kenosha Unified School Dist. No. 1 Bd. of Ed., 858 F. 3d 1034, 1049 (CA72017); G. G. v. Gloucester Cty. School Bd., 822 F. 3d 709,
715 (CA4 2016), vacated and remanded, 580 U. S. ___(2017); Adams v. School Bd. of St. Johns Cty., 318 F. Supp.
3d 1293, 1325 (MD Fla. 2018); cf. Doe v. Boyertown Area——————
45 See 1 Sadock, Comprehensive Textbook of Psychiatry, at 2063 (explaining that “gender is now often regarded as more fluid” and “[t]hus,
gender identity may be described as masculine, feminine, or somewhere
in between”).
46 Title IX makes it unlawful to discriminate on the basis of sex in education: “No person in the United States shall, on the basis of sex, be
excluded from participation in, be denied the benefits of, or be subjected
to discrimination under any education program or activity receiving Federal financial assistance.” 20 U. S. C. §1681(a).
47 See Dept. of Justice & Dept. of Education, Dear Colleague Letter on
Transgender Students, May 13, 2016 (Dear Colleague Letter),
https://www2.ed.gov/about/offices/list/ocr/letters/colleague-201605-titleix-transgender.pdf.

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School Dist., 897 F. 3d 518, 533 (CA3 2018), cert. denied,
587 U. S. ___ (2019).
Women’s sports. Another issue that may come up underboth Title VII and Title IX is the right of a transgender individual to participate on a sports team or in an athleticcompetition previously reserved for members of one biological sex.48 This issue has already arisen under Title IX,
where it threatens to undermine one of that law’s majorachievements, giving young women an equal opportunity toparticipate in sports. The effect of the Court’s reasoning
may be to force young women to compete against students
who have a very significant biological advantage, including
students who have the size and strength of a male but identify as female and students who are taking male hormonesin order to transition from female to male. See, e.g., Complaint in Soule v. Connecticut Assn. of Schools, No. 3:20–cv–
00201 (D Conn., Apr. 17, 2020) (challenging Connecticut
policy allowing transgender students to compete in girls’
high school sports); Complaint in Hecox v. Little, No. 1:20–
cv–00184 (D Idaho, Apr. 15, 2020) (challenging state lawthat bars transgender students from participating in school
sports in accordance with gender identity). Students inthese latter categories have found success in athletic competitions reserved for females.49——————48 A regulation allows single-sex teams, 34 CFR §106.41(b) (2019), but
the statute itself would of course take precedence.
49 “[S]ince 2017, two biological males [in Connecticut] have collectively
won 15 women’s state championship titles (previously held by ten different Connecticut girls) against biologically female track athletes.” Brief
for Independent Women’s Forum et al. as Amici Curiae in No. 18–107,
pp. 14–15.
At the college level, a transgendered woman (biological male) switchedfrom competing on the men’s Division II track team to the women’s Division II track team at Franklin Pierce University in New Hampshire after
taking a year of testosterone suppressants. While this student had
placed “eighth out of nine male athletes in the 400 meter hurdles the

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The logic of the Court’s decision could even affect professional sports. Under the Court’s holding that Title VII prohibits employment discrimination because of transgenderstatus, an athlete who has the physique of a man but identifies as a woman could claim the right to play on a women’s
professional sports team. The owners of the team might try
to claim that biological sex is a bona fide occupational qualification (BFOQ) under 42 U. S. C. §2000e–2(e), but the
BFOQ exception has been read very narrowly. See Dothardv. Rawlinson, 433 U. S. 321, 334 (1977).
Housing. The Court’s decision may lead to Title IX cases
against any college that resists assigning students of the
opposite biological sex as roommates. A provision of Title
IX, 20 U. S. C. §1686, allows schools to maintain “separate
living facilities for the different sexes,” but it may be argued
that a student’s “sex” is the gender with which the student
identifies.50 Similar claims may be brought under the Fair
Housing Act. See 42 U. S. C. §3604.
Employment by religious organizations. Briefs filed by awide range of religious groups––Christian, Jewish, andMuslim––express deep concern that the position now
adopted by the Court “will trigger open conflict with faith-——————
year before, the student won the women’s competition by over a secondand a half––a time that had garnered tenth place in the men’s conference
meet just three years before.” Id., at 15.
A transgender male—i.e., a biological female who was in the process oftransitioning to male and actively taking testosterone injections––won
the Texas girls’ state championship in high school wrestling in 2017.
Babb, Transgender Issue Hits Mat in Texas, Washington Post, Feb. 26,
2017, p. A1, col. 1.
50 Indeed, the 2016 advisory letter issued by the Department of Justice
took the position that under Title IX schools “must allow transgenderstudents to access housing consistent with their gender identity.” Dear
Colleague Letter 4.

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based employment practices of numerous churches, synagogues, mosques, and other religious institutions.”51 They
argue that “[r]eligious organizations need employees who
actually live the faith,”52 and that compelling a religious organization to employ individuals whose conduct flouts thetenets of the organization’s faith forces the group to communicate an objectionable message.
This problem is perhaps most acute when it comes to theemployment of teachers. A school’s standards for its faculty“communicate a particular way of life to its students,” anda “violation by the faculty of those precepts” may undermine the school’s “moral teaching.”53 Thus, if a religious
school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if
the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment.
Yet today’s decision may lead to Title VII claims by suchteachers and applicants for employment.
At least some teachers and applicants for teaching positions may be blocked from recovering on such claims by the“ministerial exception” recognized in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171(2012). Two cases now pending before the Court present
the question whether teachers who provide religious instruction can be considered to be “ministers.”54 But even if
teachers with those responsibilities qualify, what aboutother very visible school employees who may not qualify for——————
51 Brief for National Association of Evangelicals et al. as Amici Curiae
3; see also Brief for United States Conference of Catholic Bishops et al.
as Amici Curiae in No. 18–107, pp. 8–18.
52 Brief for National Association of Evangelicals et al. as Amici Curiae
7.
53 McConnell, Academic Freedom in Religious Colleges and Universities, 53 Law & Contemp. Prob. 303, 322 (1990).
54 See Our Lady of Guadalupe School v. Morrissey-Berru, No. 19–267;
St. James School v. Biel, No. 19–348.

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

the ministerial exception? Provisions of Title VII provide
exemptions for certain religious organizations and schools“with respect to the employment of individuals of a particular religion to perform work connected with the carryingon” of the “activities” of the organization or school, 42
U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the scopeof these provisions is disputed, and as interpreted by somelower courts, they provide only narrow protection.55
Healthcare. Healthcare benefits may emerge as an intense battleground under the Court’s holding. Transgender
employees have brought suit under Title VII to challenge
employer-provided health insurance plans that do not cover
costly sex reassignment surgery.56 Similar claims havebeen brought under the Affordable Care Act (ACA), whichbroadly prohibits sex discrimination in the provision ofhealthcare.57——————
55 See, e.g., EEOC v. Kamehameha Schools/Bishop Estate, 990 F. 2d458, 460 (CA9 1993); EEOC v. Fremont Christian School, 781 F. 2d 1362,
1365–1367 (CA9 1986); Rayburn v. General Conference of Seventh-day
Adventists, 772 F. 2d 1164, 1166 (CA4 1985); EEOC v. Mississippi College, 626 F. 2d 477, 484–486 (CA5 1980); see also Brief for United States
Conference of Catholic Bishops et al. as Amici Curiae in No. 18–107, at
30, n. 28 (discussing disputed scope). In addition, 42 U. S. C. §2000e–2(e)(1) provides that religion may be a BFOQ, and allows religious
schools to hire religious employees, but as noted, the BFOQ exception
has been read narrowly. See supra, at 48.
56 See, e.g., Amended Complaint in Toomey v. Arizona, No. 4:19–cv–
00035 (D Ariz., Mar. 2, 2020). At least one District Court has alreadyheld that a state health insurance policy that does not provide coveragefor sex reassignment surgery violates Title VII. Fletcher v. Alaska, ___F. Supp. 3d ___, ___, 2020 WL 2487060, *5 (D Alaska, Mar. 6, 2020).
57 See, e.g., Complaint in Conforti v. St. Joseph’s Healthcare System,
No. 2:17–cv–00050 (D NJ, Jan. 5, 2017) (transgender man claims discrimination under the ACA because a Catholic hospital refused to allow
a surgeon to perform a hysterectomy). And multiple District Courts havealready concluded that the ACA requires health insurance coverage forsex reassignment surgery and treatment. Kadel v. Folwell, ___ F. Supp.
3d ___, ___, 2020 WL 1169271, *12 (MDNC, Mar. 11, 2020) (allowing

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Such claims present difficult religious liberty issues because some employers and healthcare providers havestrong religious objections to sex reassignment procedures,and therefore requiring them to pay for or to perform theseprocedures will have a severe impact on their ability tohonor their deeply held religious beliefs.
Freedom of speech. The Court’s decision may even affectthe way employers address their employees and the way
teachers and school officials address students. Under established English usage, two sets of sex-specific singularpersonal pronouns are used to refer to someone in the third
person (he, him, and his for males; she, her, and hers forfemales). But several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of thetwo traditional categories.58 Some jurisdictions, such as——————
claims of discrimination under ACA, Title IX, and Equal Protection
Clause); Tovar v. Essentia Health, 342 F. Supp. 3d 947, 952–954 (DMinn. 2018) (allowing ACA claim).
Section 1557 of the ACA, 42 U. S. C. §18116, provides:“Except as otherwise provided for in this title (or an amendment madeby this title), an individual shall not, on the ground prohibited under title
VI of the Civil Rights Act of 1964 (42 U. S. C. 2000d et seq.), title IX of
the Education Amendments of 1972 (20 U. S. C. 1681 et seq.), the Age
Discrimination Act of 1975 (42 U. S. C. 6101 et seq.), or section 794 oftitle 29, be excluded from participation in, be denied the benefits of, or
be subjected to discrimination under, any health program or activity, anypart of which is receiving Federal financial assistance, including credits,
subsidies, or contracts of insurance, or under any program or activity
that is administered by an Executive Agency or any entity establishedunder this title (or amendments). The enforcement mechanisms provided for and available under such title VI, title IX, section 794, or such
Age Discrimination Act shall apply for purposes of violations of this subsection.” (Footnote omitted.)
58 See, e.g., University of Wisconsin Milwaukee Lesbian, Gay, Bisexual,
Transgender, Queer Plus (LGBTQ+) Resource Center, Gender Pronouns(2020), https://uwm.edu/lgbtrc/support/gender-pronouns/ (listing six new
categories of pronouns: (f )ae, (f )aer, (f )aers; e/ey, em, eir, eirs; per, pers;

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

New York City, have ordinances making the failure to use
an individual’s preferred pronoun a punishable offense,59
and some colleges have similar rules.60 After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting
sex discrimination. See Prescott v. Rady Children’s Hospital San Diego, 265 F. Supp. 3d 1090, 1098–1100 (SD Cal.
2017) (hospital staff ’s refusal to use preferred pronoun violates ACA).61
The Court’s decision may also pressure employers to suppress any statements by employees expressing disapprovalof same-sex relationships and sex reassignment procedures. Employers are already imposing such restrictions
voluntarily, and after today’s decisions employers will fear——————ve, ver, vis; xe, xem, xyr, xyrs; ze/zie, hir, hirs).
59 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. Code §8–107 “where the refusal ismotivated by the individual’s gender”); see also N. Y. C. Admin. Code§§8–107(1), (4), (5) (2020) (making it unlawful to discriminate on the basis of “gender” in employment, housing, and public accommodations); cf.
D. C. Mun. Regs., tit. 4, §801.1 (2020) (making it “unlawful . . . to discriminate . . . on the basis of . . . actual or perceived gender identity or
expression” in “employment, housing, public accommodations, or educational institutions” and further proscribing “engaging in verbal . . . harassment”).
60 See University of Minn., Equity and Access: Gender Identity, Gender
Expression, Names, and Pronouns, Administrative Policy (Dec. 11,2019),
https://policy.umn.edu/operations/genderequity(“University
members and units are expected to use the names, gender identities, andpronouns specified to them by other University members, except as legally required”); Meriwether v. Trustees of Shawnee State Univ., 2020 WL
704615, *1 (SD Ohio, Feb. 12, 2020) (rejecting First Amendment challenge to university’s nondiscrimination policy brought by evangelical
Christian professor who was subjected to disciplinary actions for failingto use student’s preferred pronouns).
61 Cf. Notice of Removal in Vlaming v. West Point School Board, No.
3:19–cv–00773 (ED Va., Oct. 22, 2019) (contending that high school
teacher’s firing for failure to use student’s preferred pronouns was basedon nondiscrimination policy adopted pursuant to Title IX).

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53

ALITO, J., dissentingthat allowing employees to express their religious views onthese subjects may give rise to Title VII harassment claims.
Constitutional claims. Finally, despite the important differences between the Fourteenth Amendment and Title
VII, the Court’s decision may exert a gravitational pull inconstitutional cases. Under our precedents, the Equal Protection Clause prohibits sex-based discrimination unless a“heightened” standard of review is met. Sessions v. Morales-Santana, 582 U. S. ___, ___ (2017) (slip op., at 8);
United States v. Virginia, 518 U. S. 515, 532–534 (1996).
By equating discrimination because of sexual orientation orgender identity with discrimination because of sex, theCourt’s decision will be cited as a ground for subjecting all
three forms of discrimination to the same exacting standardof review.
Under this logic, today’s decision may have effects that
extend well beyond the domain of federal antidiscrimination statutes. This potential is illustrated bypending and recent lower court cases in which transgenderindividuals have challenged a variety of federal, state, andlocal laws and policies on constitutional grounds. See, e.g.,Complaint in Hecox, No. 1: 20–CV–00184 (state law prohibiting transgender students from competing in school sports
in accordance with their gender identity); Second Amended
Complaint in Karnoski v. Trump, No. 2:17–cv–01297 (WDWash., July 31, 2019) (military’s ban on transgender members); Kadel v. Folwell, ___ F. Supp. 3d ___, ___–___, 2020
WL 1169271, *10–*11 (MDNC, Mar. 11, 2020) (state healthplan’s exclusion of coverage for sex reassignment procedures); Complaint in Gore v. Lee, No. 3:19–cv–00328 (MDTenn., Mar. 3, 2020) (change of gender on birth certificates);
Brief for Appellee in Grimm v. Gloucester Cty. School Bd.,
No. 19–1952 (CA4, Nov. 18, 2019) (transgender student
forced to use gender neutral bathrooms at school); Complaint in Corbitt v. Taylor, No. 2:18–cv–00091 (MD Ala.,

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BOSTOCK v. CLAYTON COUNTYALITO, J., dissenting

July 25, 2018) (change of gender on driver’s licenses); Whitaker, 858 F. 3d, at 1054 (school policy requiring students to
use the bathroom that corresponds to the sex on birth certificate); Keohane v. Florida Dept. of Corrections Secretary,
952 F. 3d 1257, 1262–1265 (CA11 2020) (transgender prisoner denied hormone therapy and ability to dress andgroom as a female); Edmo v. Corizon, Inc., 935 F. 3d 757,
767 (CA9 2019) (transgender prisoner requested sex reassignment surgery); cf. Glenn v. Brumby, 663 F. 3d 1312,
1320 (CA11 2011) (transgender individual fired for gender
non-conformity).
Although the Court does not want to think about theconsequences of its decision, we will not be able to avoid
those issues for long. The entire Federal Judiciary will bemired for years in disputes about the reach of the Court’s
reasoning.
***
The updating desire to which the Court succumbs nodoubt arises from humane and generous impulses. Today,
many Americans know individuals who are gay, lesbian, ortransgender and want them to be treated with the dignity,
consideration, and fairness that everyone deserves. But theauthority of this Court is limited to saying what the law is.
The Court itself recognizes this:“The place to make new legislation . . . lies in Congress.
When it comes to statutory interpretation, our role islimited to applying the law’s demands as faithfully as
we can in the cases that come before us.” Ante, at 31.
It is easy to utter such words. If only the Court would
live by them.
I respectfully dissent.

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, J.,
dissenting
ALITO
AppendixA toopinionof ALITO, J.

APPENDIXESA
Webster’s New International Dictionary 2296 (2d ed.
1953):
sex (sĕks), n. [F. sexe, fr. L. sexus; prob. orig., division, andakin to L. secare to cut. See SECTION.] 1. One of the twodivisions of organisms formed on the distinction of maleand female; males or females collectively. 2. The sum of
the peculiarities of structure and function that distinguish a male from a female organism; the character of being male or female, or of pertaining to the distinctivefunction of the male or female in reproduction. Conjugation, or fertilization (union of germplasm of two individuals), a process evidently of great but not readily explainable importance in the perpetuation of most organisms,
seems to be the function of differentiation of sex, which
occurs in nearly all organisms at least at some stage intheir life history. Sex is manifested in the conjugating
cells by the larger size, abundant food material, and immobility of the female gamete (egg, egg cell, or ovum), andthe small size and the locomotive power of the male gamete (spermatozoon or spermatozoid), and in the adult organisms often by many structural, physiological, and (inhigher forms) psychological characters, aside from thenecessary modification of the reproductive apparatus. Cf.
HERMAPHRODITE, 1. 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.
In many animals and plants the body and germ cells
have been shown to contain one or more chromosomes ofa special kind (called sex chromosomes; idiochromosomes;
accessory chromosomes) in addition to the ordinary
paired autosomes. These special chromosomes serve to56

BOSTOCK v. CLAYTON COUNTY, J.,
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ALITO
AppendixA toopinionof ALITO, J.

determine sex. In the simplest case, the male germ cells
are of two types, one with and one without a single extra
chromosome (X chromosome, or monosome). The egg cells
in this case all possess an X chromosome, and on fertilization by the two types of sperm, male and female zygotes
result, of respective constitution X, and XX. In manyother animals and plants (probably including man) the
male organism produces two types of gametes, one possessing an X chromosome, the other a Y chromosome,these being visibly different members of a pair of chromosomes present in the diploid state. In this case also, thefemale organism is XX, the eggs X, and the zygotes respectively male (XY) and female (XX). In another type ofsex determination, as in certain moths and possibly in thefowl, the female produces two kinds of eggs, the male only
one kind of sperm. Each type of egg contains one memberof a pair of differentiated chromosomes, called respectively Z chromosomes and W chromosomes, while all thesperm cells contain a Z chromosome. In fertilization, union of a Z with a W gives rise to a female, while union of
two Z chromosomes produces a male. Cf. SECONDARY SEXCHARACTER.
3. a The sphere of behavior dominated by the relations
between male and female. b Psychoanalysis. By extension, the whole sphere of behavior related even indirectly
to the sexual functions and embracing all affectionate
and pleasure-seeking conduct.
4. Phenomena of sexual instincts and their manifestations.
5. Sect;—a confused use.
Syn.—SEX, GENDER. SEX refers to physiological distinctions; GENDER, to distinctions in grammar.
—the sex. The female sex; women, in general.
sex, adj. Based on or appealing to sex.
sex, v. t. To determine the sex of, as skeletal remains.

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, J.,
dissenting
ALITO
AppendixA toopinionof ALITO, J.

Webster’s Third New International Dictionary 2081
(1966):
1sex \‘seks\ n –ES often attrib [ME, fr. L sexus; prob. akinto L secare to cut–more at SAW] 1: one of the two divisionsof organic esp. human beings respectively designatedmale or female <a member of the opposite ~> 2: the sumof the morphological, physiological, and behavioral peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation and recombination which underlie most evolutionary change,that in its typical dichotomous occurrence is usu. genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness andfemaleness with one or the other of these being present
in most higher animals though both may occur in thesame individual in many plants and some invertebrates
and though no such distinction can be made in many
lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are
replaced by mating types or because the participants insexual reproduction are indistinguishable—compare
HETEROTHALLIC, HOMOTHALLIC; FERTILIZATION, MEIOSIS, MENDEL’S LAW; FREEMARTIN, HERMAPHRODITE,
INTERSEX 3: the sphere of interpersonal behavior esp. between male and female most directly associated with,leading up to, substituting for, or resulting from genital
union <agree that the Christian’s attitude toward ~should not be considered apart from love, marriage, family—M. M. Forney> 4: the phenomena of sexual instincts
and their manifestations <with his customary combination of philosophy, insight, good will toward the world,and entertaining interest in ~—Allen Drury> <studying
and assembling what modern scientists have discovered
about ~—Time>; specif: SEXUAL INTERCOURSE <an old
law imposing death for ~ outside marriage—William

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BOSTOCK v. CLAYTON COUNTY, J.,
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ALITO
AppendixA toopinionof ALITO, J.

Empson>2sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic

being) <it is difficult to ~ the animals at a distance—E. A.
Hooton>—compare AUTOSEXING 2 a: to increase the sexual appeal or attraction of—usu. used with up <titles
must be ~ed up to attract 56 million customers—Time>b: to arouse the sexual instincts or desires of—usu. usedwith up <watching you ~ing up that bar kitten—OakleyHall>
9 Oxford English Dictionary 577–578 (1933):
Sex (seks), sb. Also 6–7 sexe, (6 seex, 7 pl. sexe, 8 poss.
sexe’s). [ad. L. sexus (u-stem), whence also F. sexe (12th c.),Sp., Pg. sexo, It. sesso. Latin had also a form secus neut. (indeclinable).]1. Either of the two divisions of organic beings distinguished as male and female respectively; the males or thefemales (of a species, etc., esp. of the human race) viewed
collectively.
1382 WYCLIF Gen. vi. 19 Of alle thingis hauynge sowle of ony flehs, two thow shalt brynge
into the ark, that maal sex and femaal lyuen with thee. 1532 MORE Confut. Tindale II. 152, I
had as leue he bare them both a bare cheryte, as wyth the frayle feminyne sexe fall to far inloue. 1559 ALYMER Harborowe E 4 b, Neither of them debarred the heires female .. as though
it had ben .. vnnatural for that sexe to gouern. 1576 GASCOIGNE Philomene xcviii, I speakeagainst my sex. a 1586 SIDNEY Arcadia II. (1912) 158 The sexe of womankind of all other ismost bound to have regardfull eie to mens judgements. 1600 NASHE Summer’s Last Will F 3
b, A woman they imagine her to be, Because that sexe keepes nothing close they heare. 1615
CROOKE Body of Man 274 If wee respect the .. conformation of both the Sexes, the Male issooner perfected .. in the wombe. 1634 SIR T. HERBERT Trav. 19 Both sexe goe naked. 1667
MILTON P. L. IX, 822 To add what wants In Femal Sex. 1671—Samson 774 It was a weakness
In me, but incident to all our sex. 1679 DRYDEN Troilus & Cr. I. ii, A strange dissembling sex
we women are. 1711 ADDISON Spect. No. 10 ¶ 6 Their Amusements .. are more adapted to the
Sex than to the Species. 1730 SWIFT Let. to Mrs. Whiteway 28 Dec., You have neither the
scrawl nor the spelling of your sex. 1742 GRAY Propertius II. 73 She .. Condemns her fickle
Sexe’s fond Mistake. 1763 G. WILLIAMS in Jesse Selwyn & Contemp. (1843) I. 265 It would

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, J.,
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ALITO
AppendixA toopinionof ALITO, J.
astonish you to see the mixture of sexes at this place. 1780 BENTHAM Princ. Legisl. VI. §35
The sensibility of the female sex appears .. to be greater than that of the male. 1814 SCOTT
Ld. of Isles VI. iii, Her sex’s dress regain’d. 1836 THIRLWALL Greece xi. II. 51 Solon also maderegulations for the government of the other sex. 1846 Ecclesiologist Feb. 41 The propriety andnecessity of dividing the sexes during the publick offices of the Church. 1848 THACKERAY Van.
Fair xxv, She was by no means so far superior to her sex as to be above jealousy. 1865 DICKENS
Mut. Fr. II. i, It was a school for both sexes. 1886 MABEL COLLINS Prettiest Woman ii, Zadwiga
had not yet given any serious attention to the other sex.

b. collect. followed by plural verb. rare.
1768 GOLDSM. Good. n. Man IV. (Globe) 632/2 Our sex are like poor tradesmen. 1839 MALCOM
Trav. (1840) 40/I Neither sex tattoo any part of their bodies.

c. The fair(er), gentle(r), soft(er), weak(er) sex; the devout
sex; the second sex; † the woman sex: the female sex, women.
The † better, sterner sex: the male sex, men.
[1583 STUBBES Anat. Abus. E vij b, Ye magnificency & liberalitie of that gentle sex. 1613
PURCHAS Pilgrimage (1614) 38 Strong Sampson and wise Solomon are witnesses, that thestrong men are slaine by this weaker sexe.]
1641 BROME Jovial Crew III. (1652) H 4, I am bound by a strong vow to kisse all of thewoman sex I meet this morning. 1648 J. BEAUMONT Psyche XIV. I, The softer sex, attending
Him And his still-growing woes. 1665 SIR T. HERBERT Trav. (1677) 22 Whiles the better sex
seek prey abroad, the women (therein like themselves) keep home and spin. 1665 BOYLE Occas. Refl. v. ix. 176 Persons of the fairer Sex. a 1700 EVELYN Diary 12 Nov. an. 1644, The
Pillar .. at which the devout sex are always rubbing their chaplets. 1701 STANHOPE St. Aug.
Medit. I. xxxv. (1704) 82, I may .. not suffer my self to be outdone by the weaker Sex. 1732
[see FAIR a. I b]. 1753 HOGARTH Anal. Beauty x. 65 An elegant degree of plumpness peculiar
to the skin of the softer sex. 1820 BYRON Juan IV. cviii, Benign Ceruleans of the second sex!
Who advertise new poems by your looks. 1838 Murray’s Hand-bk. N. Germ. 430 It is much
frequented by the fair sex. 1894 C. D. TYLER in Geog. Jrnl. III. 479 They are beardless, andusually wear a shock of unkempt hair, which is somewhat finer in the gentler sex.

¶d. Used occas. with extended notion. The third sex: eunuchs. Also sarcastically (see quot. 1873).
1820 BYRON Juan IV. lxxxvi, From all the Pope makes yearly, ‘twould perplex To find threeperfect pipes of the third sex. Ibid. V. xxvi, A black old neutral personage Of the third sex
stept up. [1873 LD. HOUGHTON Monogr. 280 Sydney Smith .. often spoke with much bitternessof the growing belief in three Sexes of Humanity—Men, Women, and Clergymen.]e. The sex: the female sex. [F. le sexe.] Now rare.

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1589 PUTTENHAM Eng. Poesie III. xix. (Arb.) 235 As he that had tolde a long tale before

certaine noble women, of a matter somewhat in honour touching the Sex. 1608 D. T[UVILL]
Ess. Pol. & Mor. 101 b, Not yet weighing with himselfe, the weaknesse and imbecillitie of thesex. 1631 MASSINGER Emperor East I. ii, I am called The Squire of Dames, or Servant of the
Sex. 1697 VANBRUGH Prov. Wife II. ii, He has a strange penchant to grow fond of me, in spiteof his aversion to the sex. 1760-2 GOLDSM. Cit. W. xcix, The men of Asia behave with moredeference to the sex than you seem to imagine. 1792 A. YOUNG Trav. France I. 220 The sex of
Venice are undoubtedly of a distinguished beauty. 1823 BYRON Juan XIII. lxxix, We give thesex the pas. 1863 R. F. BURTON W. Africa I. 22 Going ‘up stairs’, as the sex says, at 5 a.m. on
the day after arrival, I cast the first glance at Funchal.

f. Without the, in predicative quasi-adj. use=feminine.
rare.
a 1700 DRYDEN Cymon & Iph. 368 She hugg’d th’ Offender, and forgave th’ Offence, Sex
to the last!

2. Quality in respect of being male or female.
a. With regard to persons or animals.
1526 Pilgr. Perf. (W. de. W. 1531) 282 b, Ye bee, whiche neuer gendreth with ony make of
his kynde, nor yet hath ony distinct sex. 1577 T. KENDALL Flowers of Epigr. 71 b, If by corps
supposd may be her seex, then sure a virgin she. 1616 T. SCOTT Philomythie I. (ed. 2) A 3
Euen as Hares change shape and sex, some say Once euery yeare. 1658 SIR T. BROWNE Hydriot. iii. 18 A critical view of bones makes a good distinction of sexes. a 1665 DIGBY Chym.
Secrets (1682) II. 225 Persons of all Ages and Sexes. 1667 MILTON P. L. I. 424 For Spirits
when they please can either Sex assume, or both. 1710-11 SWIFT Jrnl. to Stella 7 Mar., I find
I was mistaken in the sex, ‘tis a boy. 1757 SMOLLETT Reprisal IV. v, As for me, my sex protects
me. 1825 SCOTT Betrothed xiii, I am but a poor and neglected woman, feeble both from sex
and age. 1841 ELPHINSTONE Hist. India I. 349 When persons of different sexes walk together,
the woman always follows the man. 1882 TENSION-WOODS Fish N. S. Wales 116 Oysters areof distinct sexes.

b. with regard to plants (see FEMALE a. 2, MALE a. 2).
1567 MAPLET Gr. Forest 28 Some seeme to haue both sexes and kindes: as the Oke, theLawrell and such others. 1631 WIDDOWES Nat. Philos. (ed. 2) 49 There be sexes of hearbes ..
namely, the Male or Female. 1720 P. BLAIR Bot. Ess. iv. 237 These being very evident Proofsof a necessity of two Sexes in Plants as well as in Animals. 1790 SMELLIE Philos. Nat. Hist. I.
245 There is not a notion more generally adopted, that that vegetables have the distinction ofsexes. 1848 LINDLEY Introd. Bot. (ed. 4) II. 80 Change of Sex under the influence of externalcauses.

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3. The distinction between male and female in general.
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 physiologicaldifferences consequent on these; the class of phenomena
with which these differences are concerned.
Organs of sex: the reproductive organs in sexed animals or plants.
a 1631 DONNE Songs & Sonn., The Printrose Poems 1912 I. 61 Should she Be more thenwoman, she would get above All thought of sexe, and think to move My heart to study her,and not to love. a 1643 CARTWRIGHT Siedge III. vi, My Soul’s As Male as yours; there’s no Sex
in the mind. 1748 MELMOTH Fitzosborne Lett. lxii. (1749) II. 119 There may be a kind of sex
in the very soul. 1751 HARRIS Hermes Wks. (1841) 129 Besides number, another characteristic, visible in substances, is that of sex. 1878 GLADSTONE Prim. Homer 68 Athenè .. has nothing of sex except the gender, nothing of the woman except the form. 1887 K. PEARSON Eth.
Freethought xv. (1888) 429 What is the true type of social (moral) action in matters of sex?
1895 CRACKANTHORPE in 19th Cent. Apr. 607 (art.) Sex in modern literature. Ibid. 614 The
writers and readers who have strenuously refused to allow to sex its place in creative art.
1912 H. G. WELLS Marriage ii. § 6. 72 The young need .. to be told .. all we know of threefundamental things; the first of which is God, .. and the third Sex.

¶ 4. Used, by confusion, in senses of SECT (q. v. I, 4 b, 7,
and cf. I d note).
1575-85 ABP. SANDYS Serm. xx. 358 So are all sexes and sorts of people called vpon. 1583
MELBANCKE Philotimus L iij b, Whether thinkest thou better sporte & more absurd, to see an
Asse play on an harpe contrary to his sex, or heare [etc.]. 1586 J. HOOKER Hist. Irel. 180/2 inHolinshed, The whole sex of the Oconhours. 1586 T. B. La Primaud. Fr. Acad. I. 359 O detestable furie, not to be found in most cruell beasts, which spare the blood of their sexe. a1704 T BROWN Dial. Dead, Friendship Wks. 1711 IV. 56 We have had enough of these Christians, and sure there can be no worse among the other Sex of Mankind [i.e. Jews and Turks]?
1707 ATTERBURY Large Vind. Doctr. 47 Much less can I imagine, why a Jewish Sex (whetherof Pharisees or Saducees) should be represented, as [etc.].

5. attrib. and Comb., as sex-distinction, function, etc.; sexabusing, transforming adjs.; sex-cell, a reproductive cell,with either male or female function; a sperm-cell or an eggcell.
1642 H. MORE Song of Soul I. III. lxxi, Mad-making waters, sex trans-forming springs.

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1781 COWPER Expost. 415 Sin, that in old time Brought fire from heav’n, the sex-abusing
crime. 1876 HARDY Ethelberta xxxvii, You cannot have celebrity and sex-privilege both. 1887
Jrnl. Educ. No. 210. 29 If this examination craze is to prevail, and the sex-abolitionists are tohave their way. 1889 GEDDES & THOMSON Evol. Sex 91 Very commonly the sex-cells originate
in the ectoderm and ripen there. 1894 H. DRUMMOND Ascent of Man 317 The sex-distinction
slowly gathers definition. 1897 J. HUTCHINSON in Arch. Surg. VIII. 230 Loss of Sex Function.

Sex (seks), v. [f. SEX sb.] trans. To determine the sex of, by
anatomical examination; to label as male or female.
1884 GURNEY Diurnal Birds Prey 173 The specimen is not sexed, neither is the sex notedon the drawing. 1888 A. NEWTON in Zoologist Ser. 111. XII. 101 The .. barbarous phrase of‘collecting a specimen’ and then of ‘sexing’ it.

Concise Oxford Dictionary of Current English 1164
(5th ed. 1964):
sĕx, n. Being male or female or hermaphrodite (what is its~?; ~ does not matter; without distinction of age or ~),whence ~’LESS a., ~’lėssNESS n., ~’Y2 a., immoderately concerned with ~; males or females collectively (all ranks &both ~es; the fair, gentle, softer, weaker, ~, & joc. the ~,women; the sterner ~, men; is the fairest of her ~); (attrib.)
arising from difference, or consciousness, of ~ (~ antagonism, ~ instinct, ~ urge); ~ appeal, attractiveness arisingfrom difference of ~. [f. L sexus –ūs; partly thr. F]
Random House Dictionary of the English Language
1307 (1966):
sex (seks), n. 1. The fact or character of being either maleor female: persons of different sex. 2. either of the twogroups of persons exhibiting this character: the stronger
sex; the gentle sex. 3. the sum of the structural and functional differences by which the male and female are distinguished, or the phenomena or behavior dependent onthese differences. 4. the instinct or attraction drawing
one sex toward another, or its manifestation in life andCite as: 590 U. S. ____ (2020)

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conduct. 5. coitus. 6. to have sex, Informal. to engage insexual intercourse. –v.t. 7. to ascertain the sex of, esp. of
newly hatched chicks. 8. sex it up, Slang. to neck passionately: They were really sexing it up last night. 9. sex
up, Informal. a. to arouse sexually: She certainly knows
how to sex up the men. b. to increase the appeal of; tomake more interesting, attractive, or exciting: We’ve decided to sex up the movie with some battle scenes. [ME <L sex(us), akin to secus, deriv. of secāre to cut, divide; see
SECTION]
American Heritage Dictionary 1187 (1969):
sex (sĕks) n. 1. a. The property or quality by which organisms are classified according to their reproductive functions. b. Either of two divisions, designated male and female, of this classification. 2. Males or females collectively. 3. The condition or character of being male orfemale; the physiological, functional, and psychologicaldifferences that distinguish the male and the female. 4.
The sexual urge or instinct as it manifests itself in behavior. 5. Sexual intercourse. –tr.v. sexed, sexing, sexes.
To determine the sex of (young chickens). [Middle English, from Old French sexe, from Latin sexus†.]B
Webster’s Third New International Dictionary 2081
(2002):
1sex \‘seks\ n –ES often attrib [ME, fr. L sexus; prob. akinto L secare to cut—more at SAW] 1: one of the two divisions of organic esp. human beings respectively designated male or female <a member of the opposite ~> 2: thesum of the morphological, physiological, and behavioral

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peculiarities of living beings that subserves biparental reproduction with its concomitant genetic segregation andrecombination which underlie most evolutionary change,that in its typical dichotomous occurrence is usu. genetically controlled and associated with special sex chromosomes, and that is typically manifested as maleness andfemaleness with one or the other of these being present
in most higher animals though both may occur in thesame individual in many plants and some invertebrates
and though no such distinction can be made in many
lower forms (as some fungi, protozoans, and possibly bacteria and viruses) either because males and females are
replaced by mating types or because the participants insexual reproduction are indistinguishable—compare
HETEROTHALLIC, HOMOTHALLIC; FERTILIZATION, MEIOSIS,MENDEL’S LAW; FREEMARTIN, HERMAPHRODITE, INTERSEX
3: the sphere of interpersonal behavior esp. between maleand female most directly associated with, leading up to,
substituting for, or resulting from genital union <agree
that the Christian’s attitude toward ~ should not be considered apart from love, marriage, family—M. M. Forney> 4: the phenomena of sexual instincts and their manifestations <with his customary combination ofphilosophy, insight, good will toward the world, and entertaining interest in ~—Allen Drury> <studying and assembling what modern scientists have discovered about~—Time>; specif: SEXUAL INTERCOURSE <an old law imposing death for ~ outside marriage—William Empson>
2sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic
being) <it is difficult to ~ the animals at a distance—E. A.
Hooton>—compare AUTOSEXING 2 a: to increase the sexual appeal or attraction of—usu. used with up <titles
must be ~ed up to attract 56 million customers—Time>b: to arouse the sexual instincts or desires of—usu. usedwith up <watching you ~ing up that bar kitten—Oakley Hall>

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Random House Webster’s Unabridged Dictionary
1754 (2d ed. 2001):
Sex (seks), n. 1. either the male or female division of a species, esp. as differentiated with reference to the reproductive functions. 2. the sum of the structural and functional
differences by which the male and female are distinguished, or the phenomena or behavior dependent onthese differences. 3. the instinct or attraction drawing
one sex toward another, or its manifestation in life andconduct. 4. coitus. 5. genitalia. 6. to have sex, to engage
in sexual intercourse. – v.t. 7. to ascertain the sex of, esp.
of newly-hatched chicks. 8. sex up, Informal. a. to arousesexually: The only intent of that show was to sex up theaudience. 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. [1350–1400; ME < L
Sexus, perh. akin to secāre to divide (see SECTION)]
American Heritage Dictionary 1605 (5th ed. 2011):
Sex (seks) n. 1a. Sexual activity, especially sexual intercourse: hasn’t had sex in months. b. The sexual urge or instinct as it manifests itself in behavior: motivated by sex.
2a. Either of the two divisions, designated female and male,by which most organisms are classified on the basis of theirreproductive organs and functions: How do you determine
the sex of a lobster? b. The fact or condition of existing inthese two divisions, especially the collection of characteristics that distinguish female and male: the evolution of sex
in plants; a study that takes sex into account. See Usage
Note at gender. 3. Females or males considered as a group:
dormitories that house only one sex. 4. One’s identity as either female or male. 5. The genitals. ⸭ tr.v. sexed, sex-ing,
sex-es 1. To determine the sex of (an organism). 2. Slang a.
To arouse sexually. Often used with up. b. To increase the

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appeal or attractiveness of. Often used with up [Middle
English < Latin sexus.]
C
Statutes Prohibiting Sex Discrimination



2 U. S. C. §658a(2) (Congressional Budget andFiscal Operations; Federal Mandates)

2 U. S. C. §1311(a)(1) (Congressional Accountability; Extension of Rights and Protections)

2 U. S. C. §1503(2) (Unfunded Mandates Reform)

3 U. S. C. §411(a)(1) (Presidential Offices; Employment Discrimination)



5 U. S. C. §2301(b)(2) (Merit System Principles)

5 U. S. C. §2302(b)(1) (Prohibited Personnel
Practices)

5 U. S. C. §7103(a)(4)(A) (Labor-Management
Relations; Definitions)

5 U. S. C. §7116(b)(4) (Labor-Management Relations; Unfair Labor Practices)

5 U. S. C. §7201(b) (Antidiscrimination Policy;
Minority Recruitment Program)Cite as: 590 U. S. ____ (2020)

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

5 U. S. C. §7204(b) (Antidiscrimination; Other
Prohibitions)

6 U. S. C. §488f(b) (Secure Handling of Ammonium Nitrate; Protection From Civil Liability)

7 U. S. C. §2020(c)(1) (Supplemental Nutrition
Assistance Program)

8 U. S. C. §1152(a)(1)(A) (Immigration; Numerical Limitations on Individual Foreign States)

8 U. S. C. §1187(c)(6) (Visa Waiver Program for
Certain Visitors)



8 U. S. C. §1522(a)(5) (Authorization for Programs for Domestic Resettlement of and Assistance to Refugees)

10 U. S. C. §932(b)(4) (Uniform Code of Military
Justice; Article 132 Retaliation)



10 U. S. C. §1034(j)(3) (Protected Communications; Prohibition of Retaliatory Personnel Actions)

12 U. S. C. §302 (Directors of Federal Reserve
Banks; Number of Members; Classes)



12 U. S. C. §1735f–5(a) (Prohibition Against
Discrimination on Account of Sex in Extensionof Mortgage Assistance)

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

12 U. S. C. §1821(d)(13)(E)(iv) (Federal Deposit
Insurance Corporation; Insurance Funds)

12 U. S. C. §1823(d)(3)(D)(iv) (Federal Deposit
Insurance Corporation; Corporation Moneys)

12 U. S. C. §2277a–10c(b)(13)(E)(iv) (FarmCredit System Insurance Corporation; Corporation as Conservator or Receiver; Certain Other
Powers)

12 U. S. C. §3015(a)(4) (National Consumer Cooperative Bank; Eligibility of Cooperatives)

12 U. S. C. §§3106a(1)(B) and (2)(B) (Foreign
Bank Participation in Domestic Markets)

12 U. S. C. §4545(1) (Fair Housing)

12 U. S. C. §5390(a)(9)(E)(v) (Wall Street Reform and Consumer Protection; Powers and Duties of the Corporation)



15 U. S. C. §631(h) (Aid to Small Business)



15 U. S. C. §633(b)(1) (Small Business Administration)



15 U. S. C. §719 (Alaska Natural Gas Transportation; Civil Rights)



15 U. S. C. §775 (Federal Energy Administration; Sex Discrimination; Enforcement; Other
Legal Remedies)Cite as: 590 U. S. ____ (2020)

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

15 U. S. C. §1691(a)(1) (Equal Credit Opportunity Act)

15 U. S. C. §1691d(a) (Equal Credit Opportunity Act)

15 U. S. C. §3151(a) (Full Employment and Balanced Growth; Nondiscrimination)



18 U. S. C. §246 (Deprivation of Relief Benefits)

18 U. S. C. §3593(f ) (Special Hearing To Determine Whether a Sentence of Death Is Justified)

20 U. S. C. §1011(a) (Higher Education Resources and Student Assistance; Antidiscrimination)



20 U. S. C. §1011f(h)(5)(D) (Disclosures of Foreign Gifts)

20 U. S. C. §1066c(d) (Historically Black Collegeand University Capital Financing; Limitations
on Federal Insurance Bonds Issued by Designated Bonding Authority)

20 U. S. C. §1071(a)(2) (Federal Family Education Loan Program)

20 U. S. C. §1078(c)(2)(F) (Federal Payments To
Reduce Student Interest Costs)



20 U. S. C. §1087–1(e) (Federal Family Education Loan Program; Special Allowances)

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

20 U. S. C. §1087–2(e) (Student Loan Marketing Association)



20 U. S. C. §1087–4 (Discrimination in Secondary Markets Prohibited)

20 U. S. C. §1087tt(c) (Discretion of Student Financial Aid Administrators)



20 U. S. C. §1231e(b)(2) (Education Programs;
Use of Funds Withheld)

20 U. S. C. §1681 (Title IX of the Education
Amendments of 1972)

20 U. S. C. §1701(a)(1) (Equal Educational Opportunities; Congressional Declaration of Policy)

20 U. S. C. §1702(a)(1) (Equal Educational Opportunities; Congressional Findings)



20 U. S. C. §1703 (Denial of Equal Educational
Opportunity Prohibited)

20 U. S. C. §1705 (Assignment on Neighborhood
Basis Not a Denial of Equal Educational Opportunity)

20 U. S. C. §1715 (District Lines)

20 U. S. C. §1720 (Equal Educational Opportunities; Definitions)Cite as: 590 U. S. ____ (2020)

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

20 U. S. C. §1756 (Remedies With Respect toSchool District Lines)

20 U. S. C. §2396 (Career and Technical Education; Federal Laws Guaranteeing Civil Rights)



20 U. S. C. §3401(2) (Department of Education;
Congressional Findings)



20 U. S. C. §7231d(b)(2)(C) (Magnet Schools Assistance; Applications and Requirements)

20 U. S. C. §7914 (Strengthening and Improvement of Elementary and Secondary Schools;
Civil Rights)



22 U. S. C. §262p–4n (Foreign Relations and Intercourse; Equal Employment Opportunities)



22 U. S. C. §2304(a)(1) (Human Rights and Security Assistance)

22 U. S. C. §2314(g) (Furnishing of Defense Articles or Related Training or Other Defense Service on Grant Basis)

22 U. S. C. §2426 (Discrimination Against
United States Personnel)



22 U. S. C. §2504(a) (Peace Corps Volunteers)

22 U. S. C. §2661a (Foreign Contracts or Arrangements; Discrimination)

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

22 U. S. C. §2755 (Discrimination Prohibited if
Based on Race, Religion, National Origin, orSex)

22 U. S. C. §3901(b)(2) (Foreign Service; Congressional Findings and Objectives)

22 U. S. C. §3905(b)(1) (Foreign Service; Personnel Actions)

22 U. S. C. §4102(11)(A) (Foreign Service; Definitions)

22 U. S. C. §4115(b)(4) (Foreign Service; Unfair
Labor Practices)

22 U. S. C. §6401(a)(3) (International Religious
Freedom; Findings; Policy)

22 U. S. C. §8303(c)(2) (Office of Volunteers for
Prosperity)

23 U. S. C. §140(a) (Federal-Aid Highways;
Nondiscrimination)



23 U. S. C. §324 (Highways; Prohibition of Discrimination on the Basis of Sex)

25 U. S. C. §4223(d)(2) (Housing Assistance for
Native Hawaiians)

26 U. S. C. §7471(a)(6)(A) (Tax Court; Employees)

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

28 U. S. C. §994(d) (Duties of the United States
Sentencing Commission)

28 U. S. C. §1862 (Trial by Jury; Discrimination
Prohibited)

28 U. S. C. §1867(e) (Trial by Jury; Challenging
Compliance With Selection Procedures)

29 U. S. C. §206(d)(1) (Equal Pay Act of 1963)

29 U. S. C. §§2601(a)(6) and (b)(4) (Family andMedical Leave; Findings and Purposes)

29 U. S. C. §2651(a) (Family and Medical Leave;
Effect on Other Laws)



29 U. S. C. §3248 (Workforce Development Opportunities; Nondiscrimination)



30 U. S. C. §1222(c) (Research Funds to Institutes)



31 U. S. C. §732(f ) (Government Accountability
Office; Personnel Management System)

31 U. S. C. §6711 (Federal Payments; Prohibited Discrimination)



31 U. S. C. §6720(a)(8) (Federal Payments; Definitions, Application, and Administration)

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

34 U. S. C. §10228(c) (Prohibition of Federal
Control Over State and Local Criminal JusticeAgencies; Prohibition of Discrimination)



34 U. S. C. §11133(a)(16) (Juvenile Justice andDelinquency Prevention; State Plans)

34 U. S. C. §12161(g) (Community Schools
Youth Services and Supervision Grant Program)

34 U. S. C. §12361 (Violent Crime Control and
Law Enforcement; Civil Rights for Women)

34 U. S. C. §20110(e) (Crime Victims Fund; Administration Provisions)

34 U. S. C. §50104(a) (Emergency Federal Law
Enforcement Assistance)

36 U. S. C. §20204(b) (Air Force Sergeants Association; Membership)

36 U. S. C. §20205(c) (Air Force Sergeants Association; Governing Body)

36 U. S. C. §21003(a)(4) (American GI Forum of
the United States; Purposes)

36 U. S. C. §21004(b) (American GI Forum of
the United States; Membership)

36 U. S. C. §21005(c) (American GI Forum of
the United States; Governing Body)

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

36 U. S. C. §21704A (The American Legion)

36 U. S. C. §22703(c) (Amvets; Membership)

36 U. S. C. §22704(d) (Amvets; Governing Body)

36 U. S. C. §60104(b) (82nd Airborne Division
Association, Incorporated; Membership)

36 U. S. C. §60105(c) (82nd Airborne Division
Association, Incorporated; Governing Body)

36 U. S. C. §70104(b) (Fleet Reserve Association; Membership)

36 U. S. C. §70105(c) (Fleet Reserve Association; Governing Body)

36 U. S. C. §140704(b) (Military Order of theWorld Wars; Membership)

36 U. S. C. §140705(c) (Military Order of theWorld Wars; Governing Body)

36 U. S. C. §154704(b) (Non Commissioned Officers Association of the United States of America, Incorporated; Membership)

36 U. S. C. §154705(c) (Non Commissioned Officers Association of the United States of America, Incorporated; Governing Body)

36 U. S. C. §190304(b) (Retired Enlisted Association, Incorporated; Membership)

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

36 U. S. C. §190305(c) (Retired Enlisted Association, Incorporated; Governing Body)

36 U. S. C. §220522(a)(8) and (9) (United States
Olympic Committee; Eligibility Requirements)

36 U. S. C. §230504(b) (Vietnam Veterans ofAmerica, Inc.; Membership)

36 U. S. C. §230505(c) (Vietnam Veterans ofAmerica, Inc.; Governing Body)

40 U. S. C. §122(a) (Federal Property and Administrative Services; Prohibition on Sex Discrimination)



40 U. S. C. §14702 (Appalachian Regional Development; Nondiscrimination)



42 U. S. C. §213(f ) (Military Benefits)

42 U. S. C. §290cc–33(a) (Projects for Assistancein Transition From Homelessness)



42 U. S. C. §290ff–1(e)(2)(C) (Children With Serious Emotional Disturbances; Requirements
With Respect to Carrying Out Purpose of
Grants)

42 U. S. C. §295m (Public Health Service; Prohibition Against Discrimination on Basis of Sex)

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

42 U. S. C. §296g (Public Health Service; Prohibition Against Discrimination by Schools on Basis of Sex)

42 U. S. C. §300w–7(a)(2) (Preventive Healthand Health Services Block Grants; Nondiscrimination Provisions)

42 U. S. C. §300x–57(a)(2) (Block Grants Regarding Mental Health and Substance Abuse;
Nondiscrimination)



42 U. S. C. §603(a)(5)(I)(iii) (Block Grants toStates for Temporary Assistance for Needy
Families)

42 U. S. C. §708(a)(2) (Maternal and Child
Health Services Block Grant; Nondiscrimination Provisions)

42 U. S. C. §1975a(a) (Duties of Civil Rights
Commission)

42 U. S. C. §2000c(b) (Civil Rights; Public Education; Definitions)

42 U. S. C. §2000c–6(a)(2) (Civil Rights; Public
Education; Civil Actions by the Attorney General)

42 U. S. C. §2000e–2 (Equal Employment Opportunities; Unlawful Employment Practices)

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

42 U. S. C. §2000e–3(b) (Equal Employment
Opportunities; Other Unlawful Employment
Practices)

42 U. S. C. §2000e–16(a) (Employment by Federal Government)

42 U. S. C. §2000e–16a(b) (Government Employee Rights Act of 1991)



42 U. S. C. §2000e–16b(a)(1) (Discriminatory
Practices Prohibited)

42 U. S. C. §2000h–2 (Intervention by Attorney
General; Denial of Equal Protection on Accountof Race, Color, Religion, Sex or National Origin)

42 U. S. C. §3123 (Discrimination on Basis of
Sex Prohibited in Federally Assisted Programs)

42 U. S. C. §3604 (Fair Housing Act; Discrimination in the Sale or Rental of Housing andOther Prohibited Practices)

42 U. S. C. §3605 (Fair Housing Act; Discrimination in Residential Real Estate-Related
Transactions)

42 U. S. C. §3606 (Fair Housing Act; Discrimination in the Provision of Brokerage Services)

42 U. S. C. §3631 (Fair Housing Act; Violations;
Penalties)

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

42 U. S. C. §4701 (Intergovernmental Personnel
Program; Congressional Findings and Declaration of Policy)

42 U. S. C. §5057(a)(1) (Domestic Volunteer
Services; Nondiscrimination Provisions)

42 U. S. C. §5151(a) (Nondiscrimination in Disaster Assistance)

42 U. S. C. §5309(a) (Community Development;
Nondiscrimination in Programs and Activities)



42 U. S. C. §5891 (Development of Energy
Sources; Sex Discrimination Prohibited)

42 U. S. C. §6709 (Public Works Employment;
Sex Discrimination; Prohibition; Enforcement)

42 U. S. C. §6727(a)(1) (Public Works Employment; Nondiscrimination)



42 U. S. C. §6870(a) (Weatherization Assistancefor Low-Income Persons)

42 U. S. C. §8625(a) (Low-Income Home Energy
Assistance; Nondiscrimination Provisions)

42 U. S. C. §9821 (Community Economic Development; Nondiscrimination Provisions)

42 U. S. C. §9849 (Head Start Programs; Nondiscrimination Provisions)80

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

42 U. S. C. §9918(c)(1) (Community Services
Block Grant Program; Limitations on Use ofFunds)



42 U. S. C. §10406(c)(2)(B)(i) (Family ViolencePrevention and Services; Formula Grants toStates)

42 U. S. C. §11504(b) (Enterprise Zone Development; Waiver of Modification of Housing andCommunity Development Rules in Enterprise
Zones)



42 U. S. C. §12635(a)(1) (National and Community Service State Grant Program; Nondiscrimination)



42 U. S. C. §12832 (Investment in Affordable
Housing; Nondiscrimination)



43 U. S. C. §1747(10) (Loans to States and Political Subdivisions; Discrimination Prohibited)

43 U. S. C. §1863 (Outer Continental Shelf Resource Management; Unlawful Employment
Practices; Regulations)

47 U. S. C. §151 (Federal Communications
Commission)

47 U. S. C. §398(b)(1) (Public Broadcasting;
Equal Opportunity Employment)

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

47 U. S. C. §§554(b) and (c) (Cable Communications; Equal Employment Opportunity)

47 U. S. C. §555a(c) (Cable Communications;
Limitation of Franchising Authority Liability)

48 U. S. C. §1542(a) (Virgin Islands; Voting
Franchise; Discrimination Prohibited)

48 U. S. C. §1708 (Discrimination Prohibited in
Rights of Access to, and Benefits From, Conveyed Lands)

49 U. S. C. §306(b) (Duties of the Secretary ofTransportation; Prohibited Discrimination)



49 U. S. C. §5332(b) (Public Transportation;
Nondiscrimination)



49 U. S. C. §40127 (Air Commerce and Safety;
Prohibitions on Discrimination)



49 U. S. C. §47123(a) (Airport Improvement;
Nondiscrimination)



50 U. S. C. §3809(b)(3) (Selective Service System)

50 U. S. C. §4842(a)(1)(B) (Anti-Boycott Act of
2018)

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Do you intend to engage in homosexual acts (sexual relations with another person of the same sex)?

Are you a homosexual or a bisexual? (“Homosexual” is defined as: sexual desire or behavior directed at a person(s) of one’s own
sex. “Bisexual” is defined as: a person sexually responsive to both sexes.)

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SUPREME COURT OF THE UNITED STATES_________________

Nos. 17–1618, 17–1623 and 18–107_________________GERALD LYNN BOSTOCK, PETITIONER
17–1618v.
CLAYTON COUNTY, GEORGIAON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE ELEVENTH CIRCUIT

ALTITUDE EXPRESS, INC., ET AL., PETITIONERS
17–1623v.
MELISSA ZARDA AND WILLIAM ALLEN MOORE, JR.,
CO-INDEPENDENT EXECUTORS OF THE ESTATE OF
DONALD ZARDAON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,
PETITIONER
18–107v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT[June 15, 2020]JUSTICE KAVANAUGH, dissenting.
Like many cases in this Court, this case boils down to one
fundamental question: Who decides? Title VII of the Civil
Rights Act of 1964 prohibits employment discrimination“because of ” an individual’s “race, color, religion, sex, or national origin.” The question here is whether Title VII

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KAVANAUGH, J., dissenting

should be expanded to prohibit employment discrimination
because of sexual orientation. 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.
The political branches are well aware of this issue. In
2007, the U. S. House of Representatives voted 235 to 184
to prohibit employment discrimination on the basis of sexual orientation. In 2013, the U. S. Senate voted 64 to 32 infavor of a similar ban. In 2019, the House again voted 236
to 173 to outlaw employment discrimination on the basis ofsexual orientation. 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.
The policy arguments for amending Title VII are very
weighty. The Court has previously stated, and I fully agree,that gay and lesbian Americans “cannot be treated as social
outcasts or as inferior in dignity and worth.” Masterpiece
Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, 584 U. S.
___, ___ (2018) (slip op., at 9).
But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither
Force nor Will, but merely judgment.” The Federalist No.
78, p. 523 (J. Cooke ed. 1961). Under the Constitution’s
separation of powers, our role as judges is to interpret andfollow the law as written, regardless of whether we like theresult. Cf. Texas v. Johnson, 491 U. S. 397, 420–421 (1989)(Kennedy, J., concurring). Our role is not to make or amend
the law. As written, Title VII does not prohibit employment
discrimination because of sexual orientation.1——————
1 Although this opinion does not separately analyze discrimination on
the basis of gender identity, this opinion’s legal analysis of discrimination on the basis of sexual orientation would apply in much the same way
to discrimination on the basis of gender identity.

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I
Title VII makes it unlawful for employers to discriminate
because of “race, color, religion, sex, or national origin.” 42
U. S. C. §2000e–2(a)(1).2 As enacted in 1964, Title VII did
not prohibit other forms of employment discrimination,such as age discrimination, disability discrimination, or
sexual orientation discrimination.
Over time, Congress has enacted new employment discrimination laws. In 1967, Congress passed and President
Johnson signed the Age Discrimination in Employment Act.
81 Stat. 602. In 1973, Congress passed and President
Nixon signed the Rehabilitation Act, which in substanceprohibited disability discrimination against federal and certain other employees. 87 Stat. 355. In 1990, Congress
passed and President George H. W. Bush signed the comprehensive Americans with Disabilities Act. 104 Stat. 327.
To prohibit age discrimination and disability discrimination, this Court did not unilaterally rewrite or update the——————
2 In full, the statute provides:“It shall be an unlawful employment practice for an employer—“(1) to fail or refuse to hire or to discharge any individual, or otherwise
to discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or“(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex,
or national origin.” 42 U. S. C. §2000e–2(a) (emphasis added).
As the Court today recognizes, Title VII contains an important exemption for religious organizations. §2000e–1(a); see also §2000e–2(e). The
First Amendment also safeguards the employment decisions of religious
employers. See Hosanna-Tabor Evangelical Lutheran Church and
School v. EEOC, 565 U. S. 171, 188–195 (2012). So too, the Religious
Freedom Restoration Act of 1993 exempts employers from federal lawsthat substantially burden the exercise of religion, subject to limited exceptions. §2000bb–1.

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law. Rather, Congress and the President enacted new legislation, as prescribed by the Constitution’s separation of
powers.
For several decades, Congress has considered numerous
bills to prohibit employment discrimination based on sexual
orientation. But as noted above, although Congress hascome close, it has not yet shouldered a bill over the legislative finish line.
In the face of the unsuccessful legislative efforts (so far)to prohibit sexual orientation discrimination, judges may
not rewrite the law simply because of their own policy
views. Judges may not update the law merely because they
think that Congress does not have the votes or the fortitude.
Judges may not predictively amend the law just because
they believe that Congress is likely to do it soon anyway.
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 theConstitution’s separation of powers would collapse, thereby
threatening the impartial rule of law and individual liberty.
As James Madison stated: “Were the power of judging
joined with the legislative, the life and liberty of the subject
would be exposed to arbitrary controul, for the judge would
then be the legislator.” The Federalist No. 47, at 326 (citing
Montesquieu). If judges could, for example, rewrite or update securities laws or healthcare laws or gun laws or environmental laws simply based on their own policy views, theJudiciary would become a democratically illegitimate super-legislature—unelected, and hijacking the important
policy decisions reserved by the Constitution to the people’s
elected representatives.
Because judges interpret the law as written, not as theymight wish it were written, the first 10 U. S. Courts of Appeals to consider whether Title VII prohibits sexual orientation discrimination all said no. Some 30 federal judges

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considered the question. All 30 judges said no, based on the
text of the statute. 30 out of 30.
But in the last few years, a new theory has emerged. To
end-run the bedrock separation-of-powers principle thatcourts may not unilaterally rewrite statutes, the plaintiffs
here (and, recently, two Courts of Appeals) have advanced
a novel and creative argument. They contend that discrimination “because of sexual orientation” and discrimination“because of sex” are actually not separate categories of discrimination after all. Instead, the theory goes, discrimination because of sexual orientation always qualifies as discrimination because of sex: When a gay man is fired
because he is gay, he is fired because he is attracted to men,even though a similarly situated woman would not be fired
just because she is attracted to men. According to this theory, it follows that the man has been fired, at least as a literal matter, because of his sex.
Under this literalist approach, sexual orientation discrimination automatically qualifies as sex discrimination,
and Title VII’s prohibition against sex discrimination therefore also prohibits sexual orientation discrimination—andactually has done so since 1964, unbeknownst to everyone.
Surprisingly, the Court today buys into this approach.
Ante, at 9–12.
For the sake of argument, I will assume that firing someone because of their sexual orientation may, as a very literalmatter, entail making a distinction based on sex. But toprevail in this case with their literalist approach, the plaintiffs must also establish one of two other points. The plaintiffs must establish that courts, when interpreting a statute, adhere to literal meaning rather than ordinary
meaning. Or alternatively, the plaintiffs must establishthat the ordinary meaning of “discriminate because ofsex”—not just the literal meaning—encompasses sexual
orientation discrimination. The plaintiffs fall short on bothcounts.

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First, courts must follow ordinary meaning, not literalmeaning. And courts must adhere to the ordinary meaningof phrases, not just the meaning of the words in a phrase.
There is no serious debate about the foundational interpretive principle that courts adhere to ordinary meaning,
not literal meaning, when interpreting statutes. As JusticeScalia explained, “the good textualist is not a literalist.” A.
Scalia, A Matter of Interpretation 24 (1997). Or as Professor Eskridge stated: The “prime directive in statutory interpretation is to apply the meaning that a reasonable reader
would derive from the text of the law,” so that “for hardcases as well as easy ones, the ordinary meaning (or the‘everyday meaning’ or the ‘commonsense’ reading) of therelevant statutory text is the anchor for statutory interpretation.” W. Eskridge, Interpreting Law 33, 34–35 (2016)(footnote omitted). Or as Professor Manning put it, proper
statutory interpretation asks “how a reasonable person,
conversant with the relevant social and linguistic conventions, would read the text in context. This approach recognizes that the literal or dictionary definitions of words willoften fail to account for settled nuances or background conventions that qualify the literal meaning of language and,in particular, of legal language.” Manning, The Absurdity
Doctrine, 116 Harv. L. Rev. 2387, 2392–2393 (2003). Or as
Professor Nelson wrote: No “mainstream judge is interested
solely in the literal definitions of a statute’s words.” Nelson,
What Is Textualism?, 91 Va. L. Rev. 347, 376 (2005). The
ordinary meaning that counts is the ordinary public meaning at the time of enactment—although in this case, that
temporal principle matters little because the ordinary
meaning of “discriminate because of sex” was the same in1964 as it is now.
Judges adhere to ordinary meaning for two main reasons:rule of law and democratic accountability. A society governed by the rule of law must have laws that are known andunderstandable to the citizenry. And judicial adherence toCite as: 590 U. S. ____ (2020)

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ordinary meaning facilitates the democratic accountabilityof America’s elected representatives for the laws they enact.
Citizens and legislators must be able to ascertain the law
by reading the words of the statute. Both the rule of law
and democratic accountability badly suffer when a court
adopts a hidden or obscure interpretation of the law, andnot its ordinary meaning.
Consider a simple example of how ordinary meaning differs from literal meaning. A statutory ban on “vehicles in
the park” would literally encompass a baby stroller. But nogood judge would interpret the statute that way because theword “vehicle,” in its ordinary meaning, does not encompass
baby strollers.
The ordinary meaning principle is longstanding and wellsettled. Time and again, this Court has rejected literalism
in favor of ordinary meaning. Take a few examples: The Court recognized that beans may be seeds “in thelanguage of botany or natural history,” but concluded
that beans are not seeds “in commerce” or “in common
parlance.” Robertson v. Salomon, 130 U. S. 412, 414(1889).
 The Court explained that tomatoes are literally “thefruit of a vine,” but “in the common language of thepeople,” tomatoes are vegetables. Nix v. Hedden, 149
U. S. 304, 307 (1893).
 The Court stated that the statutory term “vehicle” does
not cover an aircraft: “No doubt etymologically it ispossible to use the word to signify a conveyance working on land, water or air . . . . But in everyday speech‘vehicle’ calls up the picture of a thing moving on land.”
McBoyle v. United States, 283 U. S. 25, 26 (1931).
 The Court pointed out that “this Court’s interpretationof the three-judge-court statutes has frequently deviated from the path of literalism.” Gonzalez v. Automatic Employees Credit Union, 419 U. S. 90, 96 (1974).

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BOSTOCK v. CLAYTON COUNTY
KAVANAUGH, J., dissenting The Court refused a reading of “mineral deposits” thatwould include water, even if “water is a ‘mineral,’ inthe broadest sense of that word,” because it would
bring about a “major . . . alteration in established legal
relationships based on nothing more than an overly literal reading of a statute, without any regard for its
context or history.” Andrus v. Charlestone Stone Products Co., 436 U. S. 604, 610, 616 (1978).
 The Court declined to interpret “facilitating” a drug
distribution crime in a way that would cover purchasing drugs, because the “literal sweep of ‘facilitate’ sits
uncomfortably with common usage.” Abuelhawa v.
United States, 556 U. S. 816, 820 (2009).
 The Court rebuffed a literal reading of “personnel
rules” that would encompass any rules that personnel
must follow (as opposed to human resources rules
about personnel), and stated that no one “using ordinary language would describe” personnel rules “in thismanner.” Milner v. Department of Navy, 562 U. S. 562,
578 (2011).
 The Court explained that, when construing statutoryphrases 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).
Those cases exemplify a deeply rooted principle: When
there is a divide between the literal meaning and the ordinary meaning, courts must follow the ordinary meaning.
Next is a critical point of emphasis in this case. The difference between literal and ordinary meaning becomes especially important when—as in this case—judges consider
phrases in statutes. (Recall that the shorthand version of
the phrase at issue here is “discriminate because of sex.”)3——————
3 The full phrasing of the statute is provided above in footnote 2. This

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Courts must heed the ordinary meaning of the phrase as awhole, not just the meaning of the words in the phrase.
That is because a phrase may have a more precise or confined meaning than the literal meaning of the individual
words in the phrase. Examples abound. An “Americanflag” could literally encompass a flag made in America, but
in common parlance it denotes the Stars and Stripes. A“three-pointer” could literally include a field goal in football,but in common parlance, it is a shot from behind the arc inbasketball. A “cold war” could literally mean any wintertime war, but in common parlance it signifies a conflict
short of open warfare. A “washing machine” could literally
refer to any machine used for washing any item, but in everyday speech it means a machine for washing clothes.
This Court has often emphasized the importance of sticking to the ordinary meaning of a phrase, rather than themeaning of words in the phrase. In FCC v. AT&T Inc., 562
U. S. 397 (2011), for example, the Court explained:“AT&T’s argument treats the term ‘personal privacy’
as simply the sum of its two words: the privacy of a person. . . . But two words together may assume a moreparticular meaning than those words in isolation. We
understand a golden cup to be a cup made of or resembling gold. A golden boy, on the other hand, is one who
is charming, lucky, and talented. A golden opportunity
is one not to be missed. ‘Personal’ in the phrase ‘personal privacy’ conveys more than just ‘of a person.’ Itsuggests a type of privacy evocative of human concerns—not the sort usually associated with an entity
like, say, AT&T.” Id., at 406.
——————
opinion uses “discriminate because of sex” as shorthand for “discriminate. . . because of . . . sex.” Also, the plaintiffs do not dispute that the ordinary meaning of the statutory phrase “discriminate” because of sex is thesame as the statutory phrase “to fail or refuse to hire or to discharge any
individual” because of sex.

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Exactly right and exactly on point in this case.
Justice Scalia explained the extraordinary importance ofhewing to the ordinary meaning of a phrase: “Adhering to
the fair meaning of the text (the textualist’s touchstone)
does not limit one to the hyperliteral meaning of each wordin the text. In the words of Learned Hand: ‘a sterile literalism . . . loses sight of the forest for the trees.’ The fullbody of a text contains implications that can alter the literalmeaning of individual words.” A. Scalia & B. Garner, Reading Law 356 (2012) (footnote omitted). Put another way,“the meaning of a sentence may be more than that of theseparate words, as a melody is more than the notes.”
Helvering v. Gregory, 69 F. 2d 809, 810–811 (CA2 1934) (L.
Hand, J.). Judges must take care to follow ordinary meaning “when two words combine to produce a meaning that is
not the mechanical composition of the two words separately.” Eskridge, Interpreting Law, at 62. Dictionaries are
not “always useful for determining the ordinary meaning ofword clusters (like ‘driving a vehicle’) or phrases andclauses or entire sentences.” Id., at 44. And we must recognize that a phrase can cover a “dramatically smaller category than either component term.” Id., at 62.
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 thephrase, we may not ignore or gloss over that discrepancy.
“Legislation cannot sensibly be interpreted by stringing together dictionary synonyms of each word and proclaiming
that, if the right example of the meaning of each is selected,
the ‘plain meaning’ of the statute leads to a particular result. 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).4——————
4 Another longstanding canon of statutory interpretation—the absurdity canon—similarly reflects the law’s focus on ordinary meaning rather

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In other words, this Court’s precedents and longstanding
principles of statutory interpretation teach a clear lesson:
Do not simply split statutory phrases into their component
words, look up each in a dictionary, and then mechanically
put them together again, as the majority opinion today mistakenly does. See ante, at 5–9. To reiterate Justice Scalia’s
caution, that approach misses the forest for the trees.
A literalist approach to interpreting phrases disrespects
ordinary meaning and deprives the citizenry of fair noticeof what the law is. It destabilizes the rule of law andthwarts democratic accountability. For phrases as well as
terms, the “linchpin of statutory interpretation is ordinary
meaning, for that is going to be most accessible to the citizenry desirous of following the law and to the legislatorsand their staffs drafting the legal terms of the planslaunched by statutes and to the administrators and judges
implementing the statutory plan.” Eskridge, Interpreting
Law, at 81; see Scalia, A Matter of Interpretation, at 17.
Bottom line: Statutory Interpretation 101 instructs
courts to follow ordinary meaning, not literal meaning, andto adhere to the ordinary meaning of phrases, not just themeaning of the words in a phrase.
Second, in light of the bedrock principle that we must adhere to the ordinary meaning of a phrase, the question inthis case boils down to the ordinary meaning of the phrase“discriminate because of sex.” Does the ordinary meaningof that phrase encompass discrimination because of sexual
orientation? The answer is plainly no.
——————
than literal meaning. That canon tells courts to avoid construing a statute in a way that would lead to absurd consequences. The absurdity
canon, properly understood, is “an implementation of (rather than . . . anexception to) the ordinary meaning rule.” W. Eskridge, Interpreting Law
72 (2016). “What the rule of absurdity seeks to do is what all rules ofinterpretation seek to do: make sense of the text.” A. Scalia & B. Garner,
Reading Law 235 (2012).

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KAVANAUGH, J., dissenting

On occasion, it can be difficult for judges to assess ordinary meaning. Not here. 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.
As to common parlance, few in 1964 (or today) would describe a firing because of sexual orientation as a firing because of sex. As commonly understood, sexual orientation
discrimination is distinct from, and not a form of, sex discrimination. The majority opinion acknowledges the common understanding, noting that the plaintiffs here probably did not tell their friends that they were fired because of
their sex. Ante, at 16. That observation is clearly correct.
In common parlance, Bostock and Zarda were fired because
they were gay, not because they were men.
Contrary to the majority opinion’s approach today, thisCourt has repeatedly emphasized that common parlancematters in assessing the ordinary meaning of a statute, because courts heed how “most people” “would have understood” the text of a statute when enacted. New Prime Inc.
v. Oliveira, 586 U. S. ___, ___–___ (2019) (slip op., at 6–7);
see Henson v. Santander Consumer USA Inc., 582 U. S. ___,___ (2017) (slip op., at 4) (using a conversation between
friends to demonstrate ordinary meaning); see also Wisconsin Central Ltd. v. United States, 585 U. S. ___, ___–___(2018) (slip op., at 2–3) (similar); AT&T, 562 U. S., at 403–
404 (similar).
Consider the employer who has four employees but must
fire two of them for financial reasons. Suppose the four employees are a straight man, a straight woman, a gay man,and a lesbian. The employer with animosity against women(animosity based on sex) will fire the two women. The employer with animosity against gays (animosity based on sexual orientation) will fire the gay man and the lesbian.
Those are two distinct harms caused by two distinct biases
that have two different outcomes. To treat one as a form ofCite as: 590 U. S. ____ (2020)

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the other—as the majority opinion does—misapprehends
common language, human psychology, and real life. See
Hively v. Ivy Tech Community College of Ind., 853 F. 3d 339,
363 (CA7 2017) (Sykes, J., dissenting).
It also rewrites history. Seneca Falls was not Stonewall.
The women’s rights movement was not (and is not) the gay
rights movement, although many people obviously support
or participate in both. So to think that sexual orientation
discrimination is just a form of sex discrimination is not justa mistake of language and psychology, but also a mistake ofhistory and sociology.
Importantly, an overwhelming body of federal law reflects and reinforces the ordinary meaning and demonstrates that sexual orientation discrimination is distinct
from, and not a form of, sex discrimination. Since enacting
Title VII in 1964, Congress has never treated sexual orientation discrimination the same as, or as a form of, sex discrimination. Instead, Congress has consistently treated sex
discrimination and sexual orientation discrimination as legally distinct categories of discrimination.
Many federal statutes prohibit sex discrimination, andmany federal statutes also prohibit sexual orientation discrimination. But those sexual orientation statutes expressly prohibit sexual orientation discrimination in addition to expressly prohibiting sex discrimination. Every
single one. To this day, Congress has never defined sex discrimination to encompass sexual orientation discrimination. Instead, when Congress wants to prohibit sexual orientation discrimination in addition to sex discrimination,
Congress explicitly refers to sexual orientation discrimination.5——————
5 See 18 U. S. C. §249(a)(2)(A) (criminalizing violence because of “gender, sexual orientation”); 20 U. S. C. §1092(f )(1)(F)(ii) (requiring funding
recipients to collect statistics on crimes motivated by the victim’s “gender, . . . sexual orientation”); 34 U. S. C. §12291(b)(13)(A) (prohibiting
discrimination on the basis of “sex, . . . sexual orientation”); §30501(1)14

BOSTOCK v. CLAYTON COUNTY
KAVANAUGH, J., dissenting

That longstanding and widespread congressional practice matters. When interpreting statutes, as the Court hasoften said, we “usually presume differences in language”
convey “differences in meaning.” Wisconsin Central, 585
U. S., at ___ (slip op., at 4) (internal quotation marks omitted). 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. As Justice Scalia explained for the Court,“it is not our function” to “treat alike subjects that different
Congresses have chosen to treat differently.” West Virginia
Univ. Hospitals, Inc. v. Casey, 499 U. S. 83, 101 (1991); seeid., at 92.
And the Court has likewise stressed that we may not read“a specific concept into general words when precise language in other statutes reveals that Congress knew how to
identify that concept.” Eskridge, Interpreting Law, at 415;
see University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 357 (2013); Arlington Central School
Dist. Bd. of Ed. v. Murphy, 548 U. S. 291, 297–298 (2006);
Jama v. Immigration and Customs Enforcement, 543 U. S.
335, 341–342 (2005); Custis v. United States, 511 U. S. 485,
491–493 (1994); West Virginia Univ. Hospitals, 499 U. S.,
at 99.
——————(identifying violence motivated by “gender, sexual orientation” as national problem); §30503(a)(1)(C) (authorizing Attorney General to assist
state, local, and tribal investigations of crimes motivated by the victim’s“gender, sexual orientation”); §§41305(b)(1), (3) (requiring Attorney General to acquire data on crimes motivated by “gender . . . , sexual orientation,” but disclaiming any cause of action including one “based on discrimination due to sexual orientation”); 42 U. S. C. §294e–1(b)(2)(conditioning funding on institution’s inclusion of persons of “different
genders and sexual orientations”); see also United States Sentencing
Commission, Guidelines Manual §3A1.1(a) (Nov. 2018) (authorizing increased offense level if the crime was motivated by the victim’s “gender. . . or sexual orientation”); 2E Guide to Judiciary Policy §320 (2019) (prohibiting judicial discrimination because of “sex, . . . sexual orientation”).

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KAVANAUGH, J., dissenting

So it is here. As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows
how to prohibit sexual orientation discrimination. So
courts should not read that specific concept into the generalwords “discriminate because of sex.” We cannot close oureyes to the indisputable fact that Congress—for several decades in a large number of statutes—has identified sex discrimination and sexual orientation discrimination as two
distinct categories.
Where possible, we also strive to interpret statutes so as
not to create undue surplusage. It is not uncommon to findsome scattered redundancies in statutes. But reading sex
discrimination to encompass sexual orientation discrimination would cast aside as surplusage the numerous references to sexual orientation discrimination sprinkled
throughout the U. S. Code in laws enacted over the last 25
years.
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 formof, sex discrimination.
The story is the same with bills proposed in Congress.
Since the 1970s, Members of Congress have introduced
many bills to prohibit sexual orientation discrimination in
the workplace. Until very recently, all of those bills would
have expressly established sexual orientation as a separately proscribed category of discrimination. The bills did
not define sex discrimination to encompass sexual orientation discrimination.6——————
6 See, e.g., H. R. 14752, 93d Cong., 2d Sess., §§6, 11 (1974) (amending
Title VII “by adding after the word ‘sex’ ” the words “ ‘sexual orientation,’ ” defined as “choice of sexual partner according to gender”); H. R.
451, 95th Cong., 1st Sess., §§6, 11 (1977) (“adding after the word ‘sex,’. . . ‘affectional or sexual preference,’ ” defined as “having or manifesting
an emotional or physical attachment to another consenting person or
persons of either gender, or having or manifesting a preference for such

16

BOSTOCK v. CLAYTON COUNTY
KAVANAUGH, J., dissenting

The proposed bills are telling not because they are relevant to congressional intent regarding Title VII. See Central Bank of Denver, N. A. v. First Interstate Bank of Denver, N. A., 511 U. S. 164, 186–188 (1994). Rather, theproposed 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.
Presidential Executive Orders reflect that same common
understanding. In 1967, President Johnson signed an Executive Order prohibiting sex discrimination in federal employment. In 1969, President Nixon issued a new order that
did the same. Exec. Order No. 11375, 3 CFR 684 (1966–1970 Comp.); Exec. Order No. 11478, id., at 803. In 1998,
President Clinton charted a new path and signed an Executive Order prohibiting sexual orientation discriminationin federal employment. Exec. Order No. 13087, 3 CFR 191(1999). The Nixon and Clinton Executive Orders remain in
effect today.
——————
attachment”); S. 1708, 97th Cong., 1st Sess., §§1, 2 (1981) (“inserting after ‘sex’ . . . ‘sexual orientation,’ ” defined as “ ‘homosexuality, heterosexuality, and bisexuality’ ”); H. R. 230, 99th Cong., 1st Sess., §§4, 8 (1985)(“inserting after ‘sex,’ . . . ‘affectional or sexual orientation,’ ” defined as“homosexuality, heterosexuality, and bisexuality”); S. 47, 101st Cong.,
1st Sess., §§5, 9 (1989) (“inserting after ‘sex,’ . . . ‘affectional or sexual
orientation,’ ” defined as “homosexuality, heterosexuality, and bisexuality”); H. R. 431, 103d Cong., 1st Sess., §2 (1993) (prohibiting discrimination “on account of . . . sexual orientation” without definition); H. R. 1858,
105th Cong., 1st Sess., §§3, 4 (1997) (prohibiting discrimination “on thebasis of sexual orientation,” defined as “homosexuality, bisexuality, or
heterosexuality”); H. R. 2692, 107th Cong., 1st Sess., §§3, 4 (2001) (prohibiting discrimination “because of . . . sexual orientation,” defined as“homosexuality, bisexuality, or heterosexuality”); H. R. 2015, 110th
Cong., 1st Sess., §§3, 4 (2007) (prohibiting discrimination “because of . . .
sexual orientation,” defined as “homosexuality, heterosexuality, or bisexuality”); S. 811, 112th Cong., 1st Sess., §§3, 4 (2011) (same).

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KAVANAUGH, J., dissenting

Like the relevant federal statutes, the 1998 Clinton Executive Order expressly added sexual orientation as a new,separately prohibited form of discrimination. As Judge
Lynch cogently spelled out, “the Clinton Administration did
not argue that the prohibition of sex discrimination in” theprior 1969 Executive Order “already banned, or henceforthwould be deemed to ban, sexual orientation discrimination.” 883 F. 3d, at 152, n. 22 (dissenting opinion). In short,
President Clinton’s 1998 Executive Order indicates that the
Executive Branch, like Congress, has long understood sexual orientation discrimination to be distinct from, and not
a form of, sex discrimination.
Federal regulations likewise reflect that same understanding. The Office of Personnel Management is the federal agency that administers and enforces personnel rules
across the Federal Government. OPM has issued regulations that “govern . . . the employment practices of the Federal Government generally, and of individual agencies.” 5
CFR §§300.101, 300.102 (2019). Like the federal statutes
and the Presidential Executive Orders, those OPM regulations separately prohibit sex discrimination and sexual orientation discrimination.
The States have proceeded in the same fashion. A majority of States prohibit sexual orientation discrimination in

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BOSTOCK v. CLAYTON COUNTY
KAVANAUGH, J., dissenting

employment, either by legislation applying to most workers,7 an executive order applying to public employees,8 or——————
7 See Cal. Govt. Code Ann. §12940(a) (West 2020 Cum. Supp.) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Colo.
Rev. Stat. §24–34–402(1)(a) (2019) (prohibiting discrimination becauseof “sex, sexual orientation,” etc.); Conn. Gen. Stat. §46a–81c (2017) (prohibiting discrimination because of “sexual orientation”); Del. Code Ann.,
Tit. 19, §711 (2018 Cum. Supp.) (prohibiting discrimination because of“sex (including pregnancy), sexual orientation,” etc.); D. C. Code §2–1402.11(a)(1) (2019 Cum. Supp.) (prohibiting discrimination based on“sex, . . . sexual orientation,” etc.); Haw. Rev. Stat. §378–2(a)(1)(A) (2018
Cum. Supp.) (prohibiting discrimination because of “sex[,] . . . sexual orientation,” etc.); Ill. Comp. Stat., ch. 775, §§5/1–103(Q), 5/2–102(A) (West2018) (prohibiting discrimination because of “sex, . . . sexual orientation,”etc.); Iowa Code §216.6(1)(a) (2018) (prohibiting discrimination becauseof “sex, sexual orientation,” etc.); Me. Rev. Stat. Ann., Tit. 5, §4572(1)(A)(2013) (prohibiting discrimination because of “sex, sexual orientation,”etc.); Md. State Govt. Code Ann. §20–606(a)(1)(i) (Supp. 2019) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.); Mass.
Gen. Laws, ch. 151B, §4 (2018) (prohibiting discrimination because of“sex, . . . sexual orientation,” etc.); Minn. Stat. §363A.08(2) (2018) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.);
Nev. Rev. Stat. §613.330(1) (2017) (prohibiting discrimination because of“sex, sexual orientation,” etc.); N. H. Rev. Stat. Ann. §354–A:7(I) (2018
Cum. Supp.) (prohibiting discrimination because of “sex,” “sexual orientation,” etc.); N. J. Stat. Ann. §10:5–12(a) (West Supp. 2019) (prohibiting
discrimination because of “sexual orientation, . . . sex,” etc.); N. M. Stat.
Ann. §28–1–7(A) (Supp. 2019) (prohibiting discrimination because of“sex, sexual orientation,” etc.); N. Y. Exec. Law Ann. §296(1)(a) (WestSupp. 2020) (prohibiting discrimination because of “sexual orientation,. . . sex,” etc.); Ore. Rev. Stat. §659A.030(1) (2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); R. I. Gen. Laws §28–5–
7(1) (Supp. 2019) (prohibiting discrimination because of “sex, sexual orientation,” etc.); Utah Code §34A–5–106(1) (2019) (prohibiting discrimination because of “sex; . . . sexual orientation,” etc.); Vt. Stat. Ann., Tit.
21, §495(a)(1) (2019 Cum. Supp.) (prohibiting discrimination because of“sex, sexual orientation,” etc.); Wash. Rev. Code §49.60.180 (2008) (prohibiting discrimination because of “sex, . . . sexual orientation,” etc.).
8 See, e.g., Alaska Admin. Order No. 195 (2002) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.);
Ariz. Exec. Order No. 2003–22 (2003) (prohibiting public-employment
discrimination because of “sexual orientation”); Cal. Exec. Order No. B–

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KAVANAUGH, J., dissenting

both. Almost every state statute or executive order proscribing sexual orientation discrimination expressly prohibits sexual orientation discrimination separately fromthe State’s ban on sex discrimination.
——————
54–79 (1979) (prohibiting public-employment discrimination because of“sexual preference”); Colo. Exec. Order (Dec. 10, 1990) (prohibiting public-employment discrimination because of “gender, sexual orientation,”etc.); Del. Exec. Order No. 8 (2009) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Ind. Governor’s Pol’y Statement (2018) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Kan. Exec. Order No.
19–02 (2019) (prohibiting public-employment discrimination because of“gender, sexual orientation,” etc.); Ky. Exec. Order No. 2008–473 (2008)(prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Mass. Exec. Order No. 526 (2011) (prohibiting public-employment discrimination because of “gender, . . . sexual orientation,” etc.); Minn. Exec. Order No. 86–14 (1986) (prohibiting publicemployment discrimination because of “sexual orientation”); Mo. Exec.
Order No. 10–24 (2010) (prohibiting public-employment discrimination
because of “sex, . . . sexual orientation,” etc.); Mont. Exec. Order No. 04–
2016 (2016) (prohibiting public-employment discrimination because of“sex, . . . sexual orientation,” etc.); N. H. Exec. Order No. 2016–04 (2016)(prohibiting public-employment discrimination because of “sex, sexual
orientation,” etc.); N. J. Exec. Order No. 39 (1991) (prohibiting publicemployment discrimination because of “sexual orientation”); N. C. Exec.
Order No. 24 (2017) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Ohio Exec. Order No. 2019–05D (2019) (prohibiting public-employment discrimination because of“gender, . . . sexual orientation,” etc.); Ore. Exec. Order No. 19–08 (2019)(prohibiting public-employment discrimination because of “sexual orientation”); Pa. Exec. Order No. 2016–04 (2016) (prohibiting public-employment discrimination because of “gender, sexual orientation,” etc.); R. I.
Exec. Order No. 93–1 (1993) (prohibiting public-employment discrimination because of “sex, . . . sexual orientation,” etc.); Va. Exec. Order No. 1(2018) (prohibiting public-employment discrimination because of “sex,. . . sexual orientation,” etc.); Wis. Exec. Order No. 1 (2019) (prohibiting
public-employment discrimination because of “sex, . . . sexual orientation,” etc.); cf. Wis. Stat. §§111.36(1)(d)(1), 111.321 (2016) (prohibiting
employment discrimination because of sex, defined as including discrimination because of “sexual orientation”); Mich. Exec. Directive No. 2019–
9 (2019) (prohibiting public-employment discrimination because of “sex,”
defined as including “sexual orientation”).

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BOSTOCK v. CLAYTON COUNTY
KAVANAUGH, J., dissenting

That common usage in the States underscores that sexual orientation discrimination is commonly understood as alegal concept distinct from sex discrimination.
And it is the common understanding in this Court as well.
Since 1971, the Court has employed rigorous or heightened
constitutional scrutiny of laws that classify on the basis ofsex. See United States v. Virginia, 518 U. S. 515, 531–533(1996); J. E. B. v. Alabama ex rel. T. B., 511 U. S. 127, 136–
137 (1994); Craig v. Boren, 429 U. S. 190, 197–199 (1976);
Frontiero v. Richardson, 411 U. S. 677, 682–684 (1973) (plurality opinion); Reed v. Reed, 404 U. S. 71, 75–77 (1971).
Over the last several decades, the Court has also decided
many cases involving sexual orientation. But in thosecases, the Court never suggested that sexual orientation
discrimination is just a form of sex discrimination. All of
the Court’s cases from Bowers to Romer to Lawrence toWindsor to Obergefell would have been far easier to analyze
and decide if sexual orientation discrimination were just aform of sex discrimination and therefore received the sameheightened scrutiny as sex discrimination under the Equal
Protection Clause. See Bowers v. Hardwick, 478 U. S. 186(1986); Romer v. Evans, 517 U. S. 620 (1996); Lawrence v.
Texas, 539 U. S. 558 (2003); United States v. Windsor, 570
U. S. 744 (2013); Obergefell v. Hodges, 576 U. S. 644 (2015).
Did the Court in all of those sexual orientation cases justmiss that obvious answer—and overlook the fact that sexual orientation discrimination is actually a form of sex discrimination? That seems implausible. Nineteen Justices
have participated in those cases. Not a single Justice statedor even hinted that sexual orientation discrimination wasjust a form of sex discrimination and therefore entitled tothe same heightened scrutiny under the Equal Protection
Clause. The opinions in those five cases contain no trace ofsuch reasoning. That is presumably because everyone on
this Court, too, has long understood that sexual orientation

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KAVANAUGH, J., dissenting

discrimination is distinct from, and not a form of, sex discrimination.
In sum, all of the usual indicators of ordinary meaning—common parlance, common usage by Congress, the practicein the Executive Branch, the laws in the States, and thedecisions of this Court—overwhelmingly establish that sexual orientation discrimination is distinct from, and not aform of, sex discrimination. The usage has been consistentacross decades, in both the federal and state contexts.
Judge Sykes summarized the law and language this way:
“To a fluent speaker of the English language—then and
now—. . . discrimination ‘because of sex’ is not reasonably
understood to include discrimination based on sexual orientation, a different immutable characteristic. Classifying
people by sexual orientation is different than classifying
them by sex. The two traits are categorically distinct andwidely recognized as such. There is no ambiguity or vagueness here.” Hively, 853 F. 3d, at 363 (dissenting opinion).
To tie it all together, the plaintiffs have only two routes
to succeed here. Either they can say that literal meaning
overrides ordinary meaning when the two conflict. Or they
can say that the ordinary meaning of the phrase “discriminate because of sex” encompasses sexual orientation discrimination. But the first flouts long-settled principles ofstatutory interpretation. And the second contradicts thewidespread ordinary use of the English language in America.
II
Until the last few years, every U. S. Court of Appeals to
address this question concluded that Title VII does not prohibit discrimination because of sexual orientation. As noted
above, in the first 10 Courts of Appeals to consider the issue, all 30 federal judges agreed that Title VII does not prohibit sexual orientation discrimination. 30 out of 30

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KAVANAUGH, J., dissenting

judges.9
The unanimity of those 30 federal judges shows that thequestion as a matter of law, as compared to as a matter ofpolicy, was not deemed close. Those 30 judges realized aseemingly obvious point: Title VII is not a general grant ofauthority for judges to fashion an evolving common law ofequal treatment in the workplace. Rather, Title VII identifies certain specific categories of prohibited discrimination.
And under the separation of powers, Congress—not the
courts—possesses the authority to amend or update thelaw, as Congress has done with age discrimination and disability discrimination, for example.
So what changed from the situation only a few years ago
when 30 out of 30 federal judges had agreed on this question? Not the text of Title VII. The law has not changed.
Rather, the judges’ decisions have evolved.
To be sure, the majority opinion today does not openly
profess that it is judicially updating or amending Title VII.
Cf. Hively, 853 F. 3d, at 357 (Posner, J., concurring). But
the majority opinion achieves the same outcome by seizing
on literal meaning and overlooking the ordinary meaning of
the phrase “discriminate because of sex.” Although the majority opinion acknowledges that the meaning of a phrase
and the meaning of a phrase’s individual words could differ,
it dismisses phrasal meaning for purposes of this case. The
majority opinion repeatedly seizes on the meaning of the——————
9 See Higgins v. New Balance Athletic Shoe, Inc., 194 F. 3d 252, 258–
259 (CA1 1999); Simonton v. Runyon, 232 F. 3d 33, 36 (CA2 2000); Bibby
v. Philadelphia Coca Cola Bottling Co., 260 F. 3d 257, 261 (CA3 2001);
Wrightson v. Pizza Hut of America, Inc., 99 F. 3d 138, 143 (CA4 1996);
Blum v. Gulf Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam); Ruth
v. Children’s Medical Center, 1991 WL 151158, *5 (CA6, Aug. 8, 1991)(per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084–1085(CA7 1984); Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70(CA8 1989) (per curiam); DeSantis v. Pacific Tel. & Tel. Co., 608 F. 2d327, 329–330 (CA9 1979); Medina v. Income Support Div., N. M., 413
F. 3d 1131, 1135 (CA10 2005).

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statute’s individual terms, mechanically puts them back together, and generates an interpretation of the phrase “discriminate because of sex” that is literal. See ante, at 5–9,
17, 24–26. But to reiterate, that approach to statutory interpretation is fundamentally flawed. Bedrock principles ofstatutory interpretation dictate that we look to ordinary
meaning, not literal meaning, and that we likewise adhere
to the ordinary meaning of phrases, not just the meaning ofwords in a phrase. And the ordinary meaning of the phrase“discriminate because of sex” does not encompass sexual
orientation discrimination.
The majority opinion deflects that critique by saying thatcourts should base their interpretation of statutes on the
text as written, not on the legislators’ subjective intentions.
Ante, at 20, 23–30. Of course that is true. No one disagrees.
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., 523 U. S. 75, 79(1998).
But in my respectful view, the majority opinion makes afundamental mistake by confusing ordinary meaning withsubjective intentions. To briefly explain: In the early years
after Title VII was enacted, some may have wondered
whether Title VII’s prohibition on sex discrimination protected male employees. After all, covering male employees
may not have been the intent of some who voted for the statute. Nonetheless, discrimination on the basis of sex against
women and discrimination on the basis of sex against men
are both understood as discrimination because of sex (backin 1964 and now) and are therefore encompassed within Title VII. Cf. id., at 78–79; see Newport News Shipbuilding& Dry Dock Co. v. EEOC, 462 U. S. 669, 682–685 (1983). So
too, regardless of what the intentions of the drafters might
have been, the ordinary meaning of the law demonstrates
that harassing an employee because of her sex is discriminating against the employee because of her sex with respect

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KAVANAUGH, J., dissenting

to the “terms, conditions, or privileges of employment,” asthis Court rightly concluded. Meritor Savings Bank, FSB
v. Vinson, 477 U. S. 57, 64 (1986) (internal quotation marks
omitted).10
By contrast, this case involves sexual orientation discrimination, which has long and widely been understood as distinct from, and not a form of, sex discrimination. Until now,
federal law has always reflected that common usage andrecognized that distinction between sex discrimination andsexual orientation discrimination. To fire one employee because she is a woman and another employee because he is
gay implicates two distinct societal concerns, reveals two
distinct biases, imposes two distinct harms, and falls within
two distinct statutory prohibitions.
——————
10 An amicus brief supporting the plaintiffs suggests that the plaintiffs’
interpretive approach is supported by the interpretive approach employed by the Court in its landmark decision in Brown v. Board of Education, 347 U. S. 483 (1954). See Brief for Anti-Discrimination Scholars
as Amici Curiae 4. That suggestion is incorrect. Brown is a correct decision as a matter of original public meaning. There were two analyticalcomponents 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 thebasis 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 otherissue was whether that racial nondiscrimination principle applied to
public schools, even though public schools did not exist in any comparable form in 1868. The answer was yes. The Court applied the equal
protection principle to public schools in the same way that the Court applies, 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, thequestion 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 thequestion whether the racial nondiscrimination principle applied to publicschools. But that is not this case.

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KAVANAUGH, J., dissenting

To be sure, as Judge Lynch appropriately recognized, it
is “understandable” that those seeking legal protection forgay people “search for innovative arguments to classify
workplace bias against gays as a form of discriminationthat is already prohibited by federal law. But the arguments advanced by the majority ignore the evident meaning of the language of Title VII, the social realities that distinguish between the kinds of biases that the statute sought
to exclude from the workplace from those it did not, and thedistinctive nature of anti-gay prejudice.” 883 F. 3d, at 162(dissenting opinion).
The majority opinion insists that it is not rewriting or updating Title VII, but instead is just humbly reading the textof the statute as written. But that assertion is tough to accept. Most everyone familiar with the use of the English
language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from theordinary meaning of sex discrimination. Federal law distinguishes the two. State law distinguishes the two. This
Court’s cases distinguish the two. Statistics on discrimination distinguish the two. History distinguishes the two.
Psychology distinguishes the two. Sociology distinguishes
the two. Human resources departments all over America
distinguish the two. Sports leagues distinguish the two.
Political groups distinguish the two. Advocacy groups distinguish the two. Common parlance distinguishes the two.
Common sense distinguishes the two.
As a result, many Americans will not buy the novel interpretation unearthed and advanced by the Court today.
Many will no doubt believe that the Court has unilaterally
rewritten American vocabulary and American law—a “statutory amendment courtesy of unelected judges.” Hively,
853 F. 3d, at 360 (Sykes, J., dissenting). Some will surmisethat the Court succumbed to “the natural desire that beguiles judges along with other human beings into imposing
their own views of goodness, truth, and justice upon others.”

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KAVANAUGH, J., dissenting

Furman v. Georgia, 408 U. S. 238, 467 (1972) (Rehnquist,J., dissenting).
I have the greatest, and unyielding, respect for my colleagues and for their good faith. But when this Court
usurps the role of Congress, as it does today, the public understandably becomes confused about who the policymakers really are in our system of separated powers, and inevitably becomes cynical about the oft-repeated aspirationthat judges base their decisions on law rather than on personal preference. The best way for judges to demonstratethat we are deciding cases based on the ordinary meaningof the law is to walk the walk, even in the hard cases when
we might prefer a different policy outcome.
***In judicially rewriting Title VII, the Court today cashiers
an ongoing legislative process, at a time when a new law toprohibit sexual orientation discrimination was probably
close at hand. After all, even back in 2007—a veritable lifetime ago in American attitudes about sexual orientation—
the House voted 235 to 184 to prohibit sexual orientation
discrimination in employment. H. R. 3685, 110th Cong., 1stSess. In 2013, the Senate overwhelmingly approved a similar bill, 64 to 32. S. 815, 113th Cong., 1st Sess. In 2019,
the House voted 236 to 173 to amend Title VII to prohibit
employment discrimination on the basis of sexual orientation. H. R. 5, 116th Cong., 1st Sess. It was therefore easy
to envision a day, likely just in the next few years, when theHouse and Senate took historic votes on a bill that would
prohibit employment discrimination on the basis of sexual
orientation. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on
the South Lawn.
It is true that meaningful legislative action takes time—often too much time, especially in the unwieldy morass on

Cite as: 590 U. S. ____ (2020)

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Capitol Hill. 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 anda 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. 693, 700 (1976). The proper role of the Judiciary in statutory interpretation cases is “to apply, notamend, the work of the People’s representatives,” evenwhen 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).
Instead of a hard-earned victory won through the democratic process, today’s victory is brought about by judicial
dictate—judges latching on to a novel form of living literalism to rewrite ordinary meaning and remake American law.
Under the Constitution and laws of the United States, thisCourt is the wrong body to change American law in thatway. The Court’s ruling “comes at a great cost to representative self-government.” Hively, 853 F. 3d, at 360(Sykes, J., dissenting). And the implications of this Court’s
usurpation of the legislative process will likely reverberatein unpredictable ways for years to come.
Notwithstanding my concern about the Court’s transgression of the Constitution’s separation of powers, it is appropriate to acknowledge the important victory achieved today by gay and lesbian Americans. Millions of gay andlesbian Americans have worked hard for many decades toachieve equal treatment in fact and in law. They have exhibited extraordinary vision, tenacity, and grit—battling often steep odds in the legislative and judicial arenas, not tomention in their daily lives. They have advanced powerfulpolicy arguments and can take pride in today’s result. Under the Constitution’s separation of powers, however, I believe that it was Congress’s role, not this Court’s, to amend
Title VII. I therefore must respectfully dissent from the

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Court’s judgment.