Bostock v.

Clayton County (2020)

Justice Gorsuch delivered the 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
the basis 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 the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated 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 basis of
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 to its benefit.

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.

Gerald Bostock worked for Clayton County, Georgia, as a child welfare advocate. Under his
leadership, the county won national awards for its work. After a decade with the 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 and participation in the league. Soon, he was fired for conduct “unbecoming” a
county employee… [The court follows with a discussion of the two other plaintiffs.]

II

This Court normally interprets a statute in accord with the ordinary public meaning of its terms at
the time of its enactment. After all, only the words on the page constitute the law adopted by
Congress and approved by the President. If judges could add to, remodel, update, or detract from
old statutory terms inspired only by extratextual sources and our own imaginations, we would
risk amending statutes outside the legislative process reserved for the people’s representatives.
And we would deny the people the right to continue relying on the original meaning of the law
they have counted on to settle their rights and obligations…

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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 of such individual’s race,
color, religion, sex, or national origin.” §2000e–2(a)(1). To do so, we orient ourselves to the time
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 our work against this
Court’s precedents.

The only statutorily protected characteristic at issue in today’s cases is “sex”—and that is also
the primary term in Title VII whose meaning the parties dispute. Appealing to roughly
contemporaneous dictionaries, the employers say that, as used here, the term “sex” in 1964
referred to “status as either male or female [as] determined by reproductive biology…”

Still, that’s just a starting point. The question isn’t just what “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 ‘by
reason 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, this means 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 is established 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 to change 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 have multiple but-for causes. So, for example, if
a car accident occurred both because the defendant ran a red light and because the plaintiff failed
to signal his turn at the intersection, we might call each a but-for cause of the collision.
Cf. Burrage v. United States, 571 U.S. 204, 211–212 (2014). When it comes to Title VII, the
adoption of the traditional but-for causation standard means a defendant cannot avoid liability
just by citing some other factor that contributed to its challenged employment decision. So long
as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law.
See ibid.; Nassar, 570 U. S., at 350...

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 in part on an
individual employee’s sex when deciding to discharge the employee—put differently, if
changing the employee’s sex would have yielded a different choice by the employer—a statutory

2
violation has occurred. Title VII’s message is “simple but momentous”: An individual
employee’s sex is “not relevant to the selection, evaluation, or compensation of
employees.” Price Waterhouse v. Hopkins, 490 U.S. 228, 239 (1989) (plurality opinion).

The statute’s message for our cases is equally simple and momentous: 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. 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 is a man and the other a woman. If the
employer fires the male employee for no reason other than the fact he is attracted to men, the
employer discriminates against him for traits 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 the affected 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 as a 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 at
birth 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 role in 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 or simply supporting the
wrong sports team. Assuming the employer 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 or transgender
status are related to sex in some vague sense or because discrimination on these bases has some
disparate impact on one sex or another, but because to discriminate on these grounds requires an
employer to intentionally treat individual employees differently because of their sex…

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

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In Los Angeles Dept. of Water and Power v.  Manhart, 435 U.S. 702 (1978), an employer
required women to make larger pension fund contributions than men. The employer sought to
justify its disparate treatment on the ground that women tend to live longer than men, and thus
are likely to receive 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 a
woman’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. Even so, 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 is unambiguous,” and any individual woman might make the
larger pension contributions and still die as early as a man. Id., at 708. Likewise, the Court
dismissed as irrelevant the employer’s insistence that its actions were motivated by a wish 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 to account for actuarial tables. Ibid. The employer
violated Title VII because, when its policy worked exactly as planned, it could not “pass the
simple test” asking whether an individual female employee would have been treated the same
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 held it was
immaterial that members of the same sex as the victim 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 to sex contributed to the discrimination, like the plaintiff ’s
conduct or personal attributes. “[A]ssuredly,” the case didn’t involve “the principal evil Congress
was concerned with 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 that the 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 else might motivate it. In Manhart, the employer called its rule requiring women
to pay more into the pension fund a “life expectancy” 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 same way, today’s employers might describe their actions as
motivated by their employees’ homosexuality or transgender status. 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 has ever demanded to establish liability.

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 defendant easily could have pointed to some other,

4
nonprotected trait and insisted it was the more important factor in the adverse employment
outcome. So, too, it has no significance here if another factor—such as the sex the plaintiff is
attracted to or presents as—might also be at work, or even play a more important role in the
employer’s decision.

Finally, an employer cannot escape liability by demonstrating that it treats males and females
comparably as groups. 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 willing to subject all male and female homosexual or transgender
employees to the same rule.

III

…Next, the employers turn to Title VII’s list of protected characteristics—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 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.
Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak
directly to a specific case that falls within a more general statutory rule creates a tacit exception.
Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the
broad 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 the theory 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 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 become law. Meanwhile, Congress has enacted other
statutes addressing other topics that do discuss sexual orientation. This postenactment legislative
history, they urge, should tell 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 in the later legislatures
understood the impact Title VII’s broad language already promised for cases like ours and didn’t

5
think a revision needed. Maybe others knew about its impact but hoped no one else would notice.
Maybe still others, 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…

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 in 1964 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?

..[W]hile legislative history can never defeat unambiguous statutory text, historical sources can
be useful for a different 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
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, this Court has sometimes consulted the understandings of the law’s drafters as
some (not always conclusive) evidence…

The employers, however, advocate nothing like that here… 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, they would seemingly have us merely point out the question, refer the subject back to
Congress, and decline to enforce the plain terms of the law in the meantime.

That is exactly the sort of reasoning this Court has long rejected…

...One “difficult[y]” [in evaluating legislative history here] 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 of )
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 history of 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,

6
even among 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 not fathers of young children wasn’t discrimination because of
sex. See Phillips v. Martin Marietta Corp., 411 F.2d 1 (CA5 1969), 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, this Court 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, 990 (CADC 1977). While to the modern eye each of
these examples may seem “plainly [to] constitut[e] discrimination because of biological
sex,” post, at 38 (Alito, J., dissenting), all were hotly contested for years following Title VII’s
enactment. 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?...

With that, the employers are left to abandon their concern for expected applications and fall back
to the last line of defense for all failing statutory interpretation arguments: naked policy appeals.
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 comes to statutory interpretation, our role is limited to applying the law’s
demands as faithfully as we can in the cases that come before us. As judges we possess no
special expertise or 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 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. Under Title VII, too, we do not purport to address bathrooms, locker
rooms, or anything else of the kind. The only question before us is whether an employer who
fires someone simply for being homosexual or transgender has discharged or otherwise
discriminated against that individual “because of such individual’s sex.” As used in Title VII, the

7
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 protected trait surely counts. Whether other policies and practices might or might not
qualify as unlawful discrimination or find 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; that
guarantee 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 application of 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), 107Stat.
1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from
substantially burdening a person’s exercise of religion unless it demonstrates that doing so both
furthers a compelling governmental interest and represents the least restrictive means of
furthering that interest. §2000bb–1. Because 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. See §2000bb–3.

But how these doctrines protecting religious liberty interact with Title VII are questions for
future cases too…

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 to recognize today a necessary consequence of that legislative
choice: An employer who fires an individual merely for being gay or transgender defies the
law…

It is so ordered.

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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 the form of a judicial opinion interpreting a statute, but that is deceptive.

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 that would 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 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 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.[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 that was
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 no one 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 (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

9
sexual orientation or gender identity should be outlawed. The question is whether Congress did
that in 1964.

It indisputably did not.

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 not found 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 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) (“The property 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”)…

…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” was discrimination
because of a person’s biological sex, not sexual orientation or gender identity. The possibility
that discrimination on either of these grounds might fit within some exotic understanding of sex
discrimination would not have crossed their minds…

In 1964, the concept of prohibiting discrimination “because of sex” was no novelty. It was a
familiar and well-understood concept, and what it meant was equal treatment for men and
women.

Long before Title VII was adopted, many pioneering state and federal laws had used language
substantively indistinguishable from Title VII’s critical phrase, “discrimination because of sex.”
For example, the California Constitution of 1879 stipulated that no one, “on account of sex,
[could] be disqualified 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]n none of the public schools . . . shall distinction
or discrimination be made on account of sex,” Art. VII, §10 (emphasis added); see also §16 (the

10
“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 that the 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 of sex” 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 this language was the Nineteenth Amendment,
ratified in 1920, which bans the denial or abridgment of the right to vote “on account 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.” 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 was approved by Congress, 66Stat. 327,
prohibited all “discrimination . . . on account of . . . sex,” Art. II, Bill of Rights §1 (emphasis
added), and in the landmark Immigration and Nationality Act of 1952, Congress outlawed
discrimination in 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 to recommend policies “for overcoming
discriminations in government and private employment on the basis of sex.” Exec. Order No.
10980, 3 CFR 138 (1961 Supp.) (emphasis added).

In short, the concept of discrimination “because of,” “on account 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, and what it meant was equal treatment for men and
women.[22]

II

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…Discrimination “because of sex” was not understood as having 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 a mental disorder, and homosexual
conduct was regarded as morally culpable and worthy of punishment.

In its then-most recent Diagnostic and Statistical Manual of 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 the sixth
printing of the DSM–II in 1973 that this was changed.[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 District of 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, 62Stat. 347–349.
[24]

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. Order No. 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 were denied 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 he
had “engaged in repeated homosexual acts”); see also Webster v. Doe, 486 U.S. 592, 595, 601
(1988) (concluding that decision 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).

12
The picture in state employment was similar. In 1964, it was common for States to bar
homosexuals from serving as teachers. An article summarizing the situation 15 years after Title
VII became law reported that “[a]ll states have statutes that permit the revocation of teaching
certificates (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 homosexual acts 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 from teacher 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), and this 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 and state universities. As a result
of these efforts, the state board 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 public bathroom).

In 1964 and for many years thereafter, homosexuals were barred from the military. See, e.g.,
Army Reg. 635–89, §I(2) (a) (July 15, 1966) (“Personnel who voluntarily engage in homosexual
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, 124Stat. 3515 (repealing 10 U. S. C. §654,
which required members of the Armed Forces to be separated for engaging in homosexual
conduct).

Homosexuals were also excluded from entry into the United States. The Immigration and
Nationality Act of 1952 (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 on that 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

13
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 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. We must therefore ask whether
ordinary Americans in 1964 would have thought that discrimination because of “sex” carried
some exotic meaning under which private-sector employers would be prohibited from engaging
in a practice that represented the official policy of the Federal Government with respect 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 conduct that 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 be squeezed 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 world of English usage to discover whether there is any possible meaning” of
discrimination because of sex that might be broad 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 is
to 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…

While Americans in 1964 would have been shocked to learn 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 their heads. 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 in common 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 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 the gender assigned at birth,”[31] the current understanding of
the concept postdates the enactment of Title VII. Nothing resembling what is now called gender
dysphoria appeared in either DSM–I (1952) or DSM–II (1968). It was not until 1980 that the

14
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 the great majority of physicians surveyed in 1969 thought that an 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…

III

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 the legislative history of Title VII totally
ignored? Any assessment of congressional intent or legislative history seriously undermines the
Court’s interpretation.

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 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 opponent of the civil rights bill, and it has been
suggested that he added the prohibition against discrimination on the basis of “sex” as a poison
pill… On this theory, Representative Smith thought that prohibiting employment discrimination
against women would be unacceptable to Members who might have otherwise voted in favor of
the bill and that the addition of this prohibition might bring about 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 the possibility 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 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 the path toward fully equal rights for women. Id., at 140. “Discrimination against

15
gay women and men, by contrast, was not on the table for public debate . . . [i]n those dark, pre-
Stonewall 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.

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
1991[37] 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 interpretation in 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 that it covered discrimination on this basis.
[40] These were also the positions of the EEOC.[41] In enacting substantial changes to Title VII,
the 1991 Congress abrogated numerous judicial decisions with which it disagreed. If it also
disagreed with the decisions regarding sexual orientation and transgender 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 issue of 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…

The Court observes that “[t]he people are entitled to rely on 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...

IV

What the Court has done today––interpreting discrimination because of “sex” to encompass
discrimination because of sexual orientation or gender identity––is virtually certain to have far-
reaching consequences…

The updating desire to which the Court succumbs no doubt arises from humane and generous
impulses. Today, many Americans know individuals who are gay, lesbian, or transgender 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.

The Court itself recognizes this:

“The place to make new legislation . . . lies in Congress. When it comes to statutory
interpretation, our role is limited to applying the law’s demands as faithfully as we can in the
cases that come before us.” Ante, at 31.

16
It is easy to utter such words. If only the Court would live by them.

I respectfully dissent.

17