4) II. . 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. sex.” §2000e–2(a)(1) (emphasis added). Aren’t these cases different, the employers ask, given that an employer could refuse to hire a gay or transgender individual without ever learning the applicant’s sex? First, courts must follow ordinary meaning, not literal meaning. Ann., Tit.  But to date, none has passed both Houses. Not a single Justice stated or even hinted that sexual orientation discrimination was just a form of sex discrimination and therefore entitled to the same heightened scrutiny under the Equal Protection Clause. In 1969, President Nixon issued a new order that did the same. 200 U.S. 321, 337. certiorari to the united states court of appeals for the eleventh circuit, No. 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). Because its discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children—the company contended it hadn’t engaged in discrimination “because of ” sex. Two of the cases — Bostock v. Clayton County, Georgia, and Altitude Express, Inc. v. Zarda — were consolidated because both include claims that employers discriminated on the basis of … Simple test. (A large employer will likely have applicants and employees who fall into all four categories, and a small employer can potentially have all four as well.) 237 These being very evident Proofs of a necessity of two Sexes in Plants as well as in Animals. . 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 the same allegiance in a male employee. A regulation allows single-sex teams, 34 CFR §106.41(b) (2019), but the statute itself would of course take precedence. How could sex be necessary to the result if a member of the opposite sex might face the same outcome from the same policy? But when that same 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 and more rigorous standard? Id., at 140. IX, §9; accord, Mont. Irel. True, women as a class may live longer than men as a class. 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. And it declines to say anything about other statutes whose terms mirror Title VII’s. 555 U.S. 379, 387 (2009); Connecticut Nat. But is that really true? I. denied, 3d 1090, 1098–1100 (SD Cal. See, e.g., American Heritage Dictionary, at 548 (def.  Ken Mehlman took the decision as evidence that conservatism is not inconsistent with support for LGBT rights. VIII. So, for example, when it comes to homosexual employees, male sex and attraction to men are but-for factors that can combine to get them fired. Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. Cf. In 2019, the House voted 236 to 173 to amend Title VII to prohibit employment discrimination on the basis of sexual orientation. as, Brief for Scholars Who Study the LGB Population as, Brief for American Psychological Association et al. 1488, codified at 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. 1897 J. Hutchinson in Arch. sesso. 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 discussed. 1848 Lindley Introd. Educ. The Court’s arguments are squarely contrary to the statutory text. 65 An elegant degree of plumpness peculiar to the skin of the softer sex. ); Md. 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, two other Circuits had endorsed that interpretation in dicta, and no Court of Appeals had held otherwise. 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. Editor’s note: This originally appeared Monday, June 14 at erlc.com. 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). That observation is clearly correct. 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. lxii. T. B., W. 1531) 282 b, Ye bee, whiche neuer gendreth with ony make of his kynde, nor yet hath ony distinct sex. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. 496 U.S. 633, 650 (1990); see also United States v. Wells, 73 She .. Condemns her fickle Sexe’s fond Mistake.  Over twenty five briefs were filed to support Clayton County and Altitude Express, among them, the U.S. Department of Justice that argued that sexual orientation was not covered, but asserted that "Congress of course remains free to legislate in this area; and employers, including governmental employers, remain free to offer greater protections to their workers than Title VII requires. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. i, It was a school for both sexes. 1710-11 Swift Jrnl. 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. . A majority of States prohibit sexual orientation discrimination in employment, either by legislation applying to most workers, an executive order applying to public employees, or both. 1679 Dryden Troilus & Cr. But that is not our job. In Civil Rights Act …prohibition of sex discrimination (Bostock v. Clayton County, Georgia). 400 U.S. 542 (1971) (per curiam), and Los Angeles Dept. 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. So how can we tell which sense, individual or group, “discriminate” carries in Title VII? Thus, this lesson simply takes us back to the question whether discrimination because of sexual orientation or gender identity is a form of discrimination because of biological sex. EEOC v. R.G. His legal team contends that his firing is a violation of Title VII of the Civil Rights Act, which prohibits sex discrimination, and which the legal team argues applies to sexual orientation. An employer violates Title VII when it intentionally fires an individual employee based in part on sex regardless of whether other factors besides the plaintiff's sex contributed to the decision or whether the employer treated women as a group the same when compared to men as a group. Ann. Cf. Like the relevant federal statutes, the 1998 Clinton Executive Order expressly added sexual orientation as a new, separately prohibited form of discrimination. 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. As previously noted, the definitions of “sex” in the unabridged dictionaries in use in the 1960s are reproduced in Appendix A, infra. Code §8–107 “where the refusal is motivated by the individual’s gender”); see also N. Y. C. Admin. The Court follows this strange hypothetical with an even stranger argument. (indeclinable).]. ); Exec. 29 If this examination craze is to prevail, and the sex-abolitionists are to have their way. 1884 Gurney Diurnal Birds Prey 173 The specimen is not sexed, neither is the sex noted on the drawing. Discrimination “because of sex” was not understood as having anything to do with discrimination because of sexual orientation or transgender status. 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,” the current understanding of the concept postdates the enactment of Title VII. Cf. 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. For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. But even if the Court’s textualist argument were stronger, that would not explain today’s decision. Pension Benefit Guaranty Corporation v. LTV Corp., of Water and Power v. Manhart, 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. 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. The teaching certificates of individuals convicted of engaging in homosexual acts were revoked. Any such notion would have clashed in spectacular fashion with the societal norms of the day. [Middle English, from Old French sexe, from Latin sexus†.]. § 6. Trump’s Department of Justice presented its theories squarely to the Supreme Court. At bottom, these cases involve no more than the straightforward application of legal terms with plain and settled meanings. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group. loses sight of the forest for the trees.’ The full body of a text contains implications that can alter the literal meaning of individual words.” A. Scalia & B. Garner, Reading Law 356 (2012) (footnote omitted). Argued October 8, 2019—Decided June 15, 2020. ); Conn. Gen. Stat. L. sexual orientation,” etc.). See ante, at 18–19. “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. Appx. A model employee arrives and introduces a manager to Susan, the employee’s wife. . 151B, §4 (2018) (prohibiting discrimination because of “sex, . 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. 1615 Crooke Body of Man 274 If wee respect the .. conformation of both the Sexes, the Male is sooner perfected .. in the wombe. [1583 Stubbes Anat. 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. It was easy to picture a massive and celebratory Presidential signing ceremony in the East Room or on the South Lawn. That canon recognizes that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” Whitman v. American Trucking Assns., Inc., 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. sexual orientation,” etc. , The nature of what protected classes under § 2000e-2(a)(1) have been refined through case law over the years. A model employee arrives and introduces a manager to Susan, the employee’s wife. Indeed, the 2016 advisory letter issued by the Department of Justice took the position that under Title IX schools “must allow transgender students to access housing consistent with their gender identity.” Dear Colleague Letter 4. 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 is limited to discrimination with respect to a list of specified actions (such as hiring, firing, etc. 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. H. R. 5, 116th Cong., 1st Sess. sexe, 8 poss.  This bill remains before a House Subcommittee. Nineteenth Amendment, ratified in 1920, which bans the denial or abridgment of the right to vote “on account of sex.” U. S. 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. Presidential Executive Orders reflect that same common understanding.  Echoing a comment made by Justice Elena Kagan in memorializing Scalia, Skrmetti argued that Bostock shows "we really are all textualists now". 411 U.S. 677, 682–684 (1973) (plurality opinion); Reed v. Reed, And the implications of this Court’s usurpation of the legislative process will likely reverberate in unpredictable ways for years to come. In many other 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. 565 U.S. 171, 188 (2012). The proposed bills are telling not because they are relevant to congressional intent regarding Title VII. The Court’s ruling “comes at a great cost to representative self-government.” Hively, 853 F. 3d, at 360 (Sykes, J., dissenting). They 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, whether viewed individually or as a whole, ordinarily carried some message we have missed. ¶d. Either of two divisions, designated male and female, of this classification. . 1559 Alymer Harborowe E 4 b, Neither of them debarred the heires female .. as though it had ben .. vnnatural for that sexe to gouern. And without taking history into account, it is not easy to see how the decisions in question fit the terms of Title VII. In 1964, it was common for States to bar homosexuals from serving as teachers. 4–33. 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 shows that 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 . Apparently the Court would graft onto Title VII some arbitrary line separating the things that are related closely enough and those that are not. Properly understood, Oncale does not provide the slightest support for what the Court has done today. Employers are already imposing such restrictions voluntarily, and after today’s decisions employers will fear that allowing employees to express their religious views on these subjects may give rise to Title VII harassment claims. & G.R. The † better, sterner sex: the male sex, men. Jrnl. 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) (noting that 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”). But none of this is the law we have. States with such protections often have a state-level board that performs functions equivalent to the EEOC, and which will work with the EEOC to unify employment discrimination regulations. There was sex discrimination in Phillips, because women with children were treated disadvantageously compared to men with children. 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. Consider three of our leading precedents. 1838 Murray’s Hand-bk. L. Rev. It can easily be shown that the employer’s real objection is not “attract[ion] to men” but homosexual orientation. 1820 Byron Juan IV. That’s a legitimate concern. 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 this manner.” Milner v. Department of Navy, And the second contradicts the widespread ordinary use of the English language in America. (1981); 127 Cong. (Recall that the shorthand version of the phrase at issue here is “discriminate because of sex.”) Courts must heed the ordinary meaning of the phrase as a whole, not just the meaning of the words in the phrase. Meanwhile, in Mr. Zarda’s case, the Second Circuit concluded that sexual orientation discrimination does violate Title VII and allowed his case to proceed. By extension, the whole sphere of behavior related even indirectly to the sexual functions and embracing all affectionate and pleasure-seeking conduct. ; Nassar, 570 U. S., at 350. Hospitals, Inc. v. Casey, Three key Supreme Court cases prior to Bostock had considered the aspect of "sex" in the context of the statute:, Until Bostock, whether the Civil Rights Act gave federal protection against employment discrimination to the class of LGBT people was in dispute. Stat., ch. A provision of Title IX, 5. Equal justice under law? 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 by or in support of the employees. 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