Today, the Supreme Court ruled in three consolidated cases styled Bostock v. Clayton County, in which the justices considered whether or not the term “sex” will extend to include “sexual orientation” and “gender identity.” In a 6-3 ruling, the court expanded the definition of “sex” to include both under Title VII of the Civil Rights Act of 1964.
When this legislation was passed in 1964, it is not seriously disputed that Congress intended the bill to address discrimination on the basis of biological sex. In the decades since, Congress has considered various kinds of civil rights legislation and has never voted to expand or redefine the term “sex” in the way considered by the court today. Today’s decision redefines the meaning of the word in law, despite the majority acknowledging the sweeping significance of this expansion of the scope of the Civil Rights Act.
The ERLC filed an amicus brief in these cases alongside other religious institutions contending that "sex" in Title VII does not include either classification of orientation or identity.
Chief Justice Roberts and Justice Gorsuch joined Justices Ginsburg, Sotomayor, Kagan, and Breyer in the majority, while Justices Alito, Kavanaugh, and Thomas dissented.
Below are key quotes from both the majority opinion and the dissents highlighting how the court reached their decision. The quotes are organized by topics the justices covered in their writings. Page numbers from the court’s decision are given for each quote, but legal citations are omitted for clarity of reading.
Why the case was heard
- “[W]e granted certiorari in these matters to resolve at last the disagreement among the courts of appeals over the scope of Title VII’s protections for homosexual and transgender persons” (4)
- “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 the decision, exactly what Title VII forbids.” (2)
- “There is no escaping the role intent plays: 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.” (2)
Majority Opinion: Justice Gorsuch, joined by Chief Justice Roberts as well as Justices Ginsburg, Sotomayor, Kagan, and Breyer
The new rule
- “These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part 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.” (2)
- “Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.” (2)
The court’s reasoning
- “An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” (9)
- “… homosexuality and transgender status are inextricably bound up with sex.” (10)
- “We agree that homosexuality and transgender status are distinct concepts from sex. 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.” (19)
Unanswered questions
- “The employers worry that our decision will sweep beyond Title VII to other federal 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.” (31)
- “As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations… this Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” (32)
- “Because the Religious Freedom Restoration Act (RFRA) operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.” “But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.” (32)
- “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 this Court that compliance with Title VII will infringe their own religious liberties in any way.” (33)
Dissents: Justice Alito, joined by Justice Thomas; and Justice Kavanaugh
Definition of “sex”
- “Title VII prohibits discrimination because of sex itself, not everything that is related to, based on, or defined with reference to, “sex.” Many things are related to sex.” (Alito, 13)
- “[J]udges should ascribe to the words of a statue ‘what a reasonable person conversant with applicable social convention would have understood them to be adopting.’” (Alito, 24)
- “A literalist approach to interpreting phrases disrespects ordinary meaning and deprives the citizenry of fair notice of what the law is.” (Kavanaugh, 11)
Understanding the historical context of “sex”
- “To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But that is not our job. Our duty is to understand what the terms of Title VII were understood to mean when enacted, and in doing so, we must take into account the societal norms of that time.” (Alito, 32)
- “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 the pre-2017 cases could not see what the phrase discrimination “because of sex” really meant? If today’s decision is humble, it is sobering to imagine what the Court might do if it decided to be bold.” (Alito, 44)
- “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.” (Kavanugh, 12)
- “The majority opinion insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of 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 the ordinary 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.” (Kavanaugh, 25)
Legislating from the bench
- “Title VII of the Civil Rights Act of 1964 prohibits employment discrimination on any of the five specific grounds: “race, color, religion, sex, [and] national origin.” 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, and in recent years, bills have included “gender identity” as well. But to date, none has passed both houses…… Because no such amendment of Title VII has been enacted……, Title VII’s prohibition of discrimination because of “sex” still means what it has always meant.” (Alito, 2)
- “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.” (Kavanaugh, 2)
- “Usurping the constitutional authority of the other branches, the Court has essentially taken H. R. 5's provision on employment discrimination and issued it under the guise of statutory interpretation. A more brazen abuse of our authority to interpret statutes is hard to recall.” (Alito, 3)
- “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 general words “discriminate because of sex.” We cannot close our eyes 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.” (Kavanaugh, 15)
- “Today, many Americans know individuals who are gay, lesbian, or transgener and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is.” (Alito, 54)
Future implications
- “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.” (Alito, 45)
