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

															17–1618 v. CLAYTON COUNTY, GEORGIA

															on writ of certiorari to the united states
court of appeals for the eleventh circuit

															ALTITUDE EXPRESS, INC., et al.,
PETITIONERS

															17–1623 v. MELISSA ZARDA and William Allen Moore,
Jr., co-independent executors of the ESTATE OF DONALD ZARDA

															on writ of certiorari to the united states
court of appeals for the second circuit

															R.G. & G.R. HARRIS FUNERAL HOMES,
INC., PETITIONER

															18–107 v. 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.

															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.

															I

															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.

															Donald Zarda worked as a skydiving instructor at
Altitude Express in New York. After several seasons with the
company, 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 with gender
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 she planned 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 work out.”

															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. 78Stat. 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 be dismissed
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 their transgender status. 884 F.3d 560 (2018). During the course
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 benefit of their heirs. And we 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. 587 U. S.
___ (2019).

															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.
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 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.

															A

															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.” The
employees counter by submitting that, even in 1964, the term bore a
broader scope, capturing more than anatomy 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 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.

															No doubt, Congress could have taken a more
parsimonious approach. As it has in other statutes, it could have
added “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 this is 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 protected
trait like sex was a “motivating factor” in a defendant’s
challenged employment practice. Civil Rights Act of 1991, §107,
105Stat. 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 can be, Title VII does not concern itself with everything
that happens “because of ” sex. The statute imposes liability
on 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 the plaintiffs in
today’s cases, but assert that the statute’s list of verbs is
qualified by the last item on it: “otherwise . . .
discriminate against.” By virtue of the word otherwise , the
employers 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 too. Maybe the law concerns
itself simply with ensuring that 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 hire or
. . . 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 practice to
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’s no
defense for the employer to note that, while he treated that
individual woman worse than he would have treated a man, 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 and women because of sex. This statute works to
protect individuals of both sexes from discrimination, and does so
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 and women 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 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. 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.

															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 the same allegiance in a male employee. Likewise here.
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 to which 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 or transgender employees. There is simply no
escaping the role 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 has a 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 the model
employee is a man or a woman. To be sure, that employer’s ultimate
goal might be to discriminate on the basis of 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
responding that it is equally happy to fire male and female
employees who are homosexual or transgender. Title VII liability is
not limited to employers who, through the sum of all of their
employment actions, treat the class of men differently than the
class of women. Instead, the law makes each instance of
discriminating against an individual employee because of 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 been prohibited by Title VII’s plain terms—and
that “should be the end of the analysis.” 883 F. 3d, at 135
(Cabranes, J., concurring in judgment).

															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 women with young children, but did hire men with
children the same age. 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. 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, 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 women as a
class.

															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, 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

															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 hard
business, but none of that is at issue here. Rather, the employers
submit that even intentional discrimination against employees based
on their homosexuality or transgender status 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 this Court’s precedents have already
rejected. In the end, the employers are left to retreat beyond the
statute’s text, where they fault us for ignoring the legislature’s
purposes in 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 to do, 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 transgender
status 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 respond that 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 guide our thinking and suffice to
defeat any suggestion that the employees 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
understanding of what kind of cause the law is looking for in a
Title VII case. 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 wasn’t the only factor, or maybe even the
main factor, but it was one but-for cause—and that was enough. You
can call 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
suggest that an employer who discriminates based on homosexuality
or transgender status doesn’t intentionally discriminate
based on sex, as a disparate treatment claim requires. See post , at 9–12 (Alito, J., dissenting); post , at 12–13
(Kavanaugh, J., dissenting). But, as we’ve seen, an employer who
discriminates against homosexual or transgender 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 and female employees for being attracted to women.

															What, then, do the employers mean when they
insist intentional discrimination based on homosexuality or
transgender status isn’t intentional discrimination based on sex?
Maybe the employers mean they don’t intend to harm 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 by a 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 and
women as groups. In Phillips , the employer may have
perceived itself as discriminating based on motherhood, not sex,
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 because of
sex, and Title VII liability necessarily followed.

															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? 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 transgender persons 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 black or
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 turn on 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 to decide 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 transgender mean. 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 check the homosexual or transgender box without
discriminating in part because of an applicant’s sex. By
discriminating against homosexuals, the employer intentionally
penalizes men for being attracted to men and women for being
attracted to women. By discriminating against transgender persons,
the employer unavoidably discriminates against persons with one sex
identified at birth and another today. Any way you slice it, the
employer intentionally refuses to hire 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
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 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. Pension Benefit Guaranty Corporation v. LTV Corp ., 496
U.S. 633 , 650 (1990); see also United States v. 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
just doesn’t work when it comes to cases involving homosexual and
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. Bostock—asking whether Mr. Bostock,
a man attracted to other men, would have been fired had he been a
woman—we don’t just change his sex. Along the way, we change his
sexual orientation too (from homosexual to heterosexual). If the
aim is to isolate whether a plaintiff ’s sex caused the
dismissal, 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 he were a woman attracted to
women. And because his employer would have been as quick to fire a
lesbian as it was a 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 women or if the
statute applied only when sex is the sole or primary reason 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
to equalize 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 the confluence of two factors,
his sex and the sex to which he is attracted. 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, the employers’
policies in the cases before us have the same adverse consequences
for men and women. How could sex be 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
a result 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 of your choice to open the
window. That doesn’t change just because you also would have opened
the window had it been warm 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 get them
fired. The fact that female sex and attraction to women can also get an employee fired does no more than show 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 primary
cause 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 a but-for cause of the employer’s refusal to hire. But like
the employers before us today, this employer would say not so fast.
By comparing the woman who applied to be a mechanic to a man who
applied to be a mechanic, we’ve quietly changed 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 to hold that second trait constant: Instead of
comparing the disappointed female applicant to a man who applied
for the same position, the employer would say, we should compare
her to a man who applied to be a secretary. And because that
jobseeker would be refused too, this must not be sex
discrimination.

															No one thinks that , so the employers must
scramble to justify deploying a stricter causation test for use
only in cases 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 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? 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 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?

															It might be tempting to reject this argument out
of hand. This Court has explained many times over many years that,
when the meaning of the statute’s terms is plain, our job is at 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 it into 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, the
statute’s application in these cases reaches “beyond the principal
evil” legislators may have intended or expected to address. Oncale , 523 U. S., at 79. But “ ‘the fact that [a
statute] 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) (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”).

															Still, while 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. For example, in
the context of the National Motor Vehicle Theft Act, this Court
admitted that the term “vehicle” in 1931 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
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. 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 these terms mean either when viewed
individually or in the aggregate. 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. 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 from
1969); Holloway v. Arthur Andersen & Co ., 566
F.2d 659, 661 (CA9 1977) (addressing claim from 1974). And less
than a decade after Title VII’s passage, during debates over the
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).

															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 look
only 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
individual with 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 be applied to state prisoners.’ ” Id ., at
211–212. This Court emphatically rejected that view, explaining
that, “in the context 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 in 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
as interpreters of statutes; it would tilt the scales of justice in
favor of the strong or popular and neglect the promise that all
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-to-be-determined) group expected in 1964, we’d have more than
a little law to overturn. Start with Oncale . How many people
in 1964 could have expected that the law would turn out to protect
male employees? Let alone to protect them from harassment by other
male employees? As we acknowledged at the time, “male-on-male
sexual harassment in the workplace 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, it
would 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 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, 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?

															The weighty implications of the employers’
argument from expectations also reveal why they cannot hide behind
the no-elephants-in-mouseholes canon. 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 ., 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 or transgender status—is an
elephant. But where’s the mousehole? 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 and not
merely between groups and to hold employers liable whenever 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 a mousehole; 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 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 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.
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 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 this Court 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 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.

															The judgments of the Second and Sixth Circuits
in Nos. 17–1623 and 18–107 are affirmed. The judgment of the
Eleventh Circuit in No. 17–1618 is reversed, and the case is
remanded for further proceedings consistent with this opinion.

															It is so ordered. SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 17–1618, 17–1623 and 18–107

															_________________

															GERALD LYNN BOSTOCK, PETITIONER

															17–1618 v. CLAYTON COUNTY, GEORGIA

															on writ of certiorari to the united states
court of appeals for the eleventh circuit

															ALTITUDE EXPRESS, INC., et al.,
PETITIONERS

															17–1623 v. MELISSA ZARDA and William Allen Moore,
Jr., co-independent executors of the ESTATE OF DONALD ZARDA

															on writ of certiorari to the united states
court of appeals for the second circuit

															R.G. & G.R. HARRIS FUNERAL HOMES,
INC., PETITIONER

															18–107 v. 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
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 sexual orientation or gender identity should be outlawed.
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 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”).

															The Court does not dispute that this is what
“sex” means in 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 on that ground and instead “proceed[s] on the assumption that
‘sex’ . . . refer[s] only to biological distinctions
between male and female.” Ante , at 5.

															If that is so, it should be perfectly clear that
Title VII does not reach discrimination because of sexual
orientation or gender identity. If “sex” in Title VII means
biologically male or female, then discrimination because of sex
means discrimination because the person in question is biologically
male or biologically female, not because that person is sexually
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? 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 is limited to
discrimination with respect to a list of specified actions (such as
hiring, firing, etc.); and that Title VII protects 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 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
. . . 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, not merely that
the terms of Title VII can be interpreted that way but that
they cannot reasonably be interpreted any other way .
According to the Court, the text is unambiguous. See ante ,
at 24, 27, 30.

															The arrogance of this argument is breathtaking.
As I will show, there is not a shred of evidence that any Member of
Congress 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 were not “smart enough to
realize” what its language means. 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 of Appeals to consider the question interpreted
Title VII’s prohibition against sex discrimination to mean
discrimination on the basis of biological sex. See Part III–C, infra . And for good 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 biological sexes.
See ante , at 10 (recognizing that “discrimination on these
bases” does not have “some disparate impact on one sex or
another”). Both men and women may be attracted to members of the
opposite sex, members of the same sex, or members of both
sexes.[ 8 ] And individuals who
are born with 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
orientation or 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 homosexual or 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 in part 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 an assertion 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 and of itself entail discrimination because of sex. We
can see 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 even knowing the biological sex of gay,
lesbian, and transgender applicants. 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 to complete 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
even knowing 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 of which the employer
has no knowledge. And if an employer does not violate Title VII by
discriminating on the basis of sexual orientation or gender
identity without knowing the sex of the affected individuals, there
is no reason why the same 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 perfectly
legitimate 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 complied with Title VII, so
long as it studiously avoids learning any particular applicant’s
race or religion? Of course not.” 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 or female.

															The Court follows this strange hypothetical with
an even stranger argument. The Court argues that an applicant 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 account his or her sex and that of the persons to whom he
or she is sexually attracted to answer the question, it follows,
the Court reasons, that an employer could not reject this applicant
without taking the applicant’s sex into account. See ante ,
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 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 the
model employee is a man or a woman.” Ante , at 11.

															This example disproves the Court’s argument
because it is 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 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, the Court makes two other arguments, more or less in
passing. The first of these is essentially that sexual orientation
and gender 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 discrimination on the
basis of sexual orientation or gender identity involves the
application of “sex-based rules,” ante , at 17. This is a
variant of an argument found in many of the briefs filed in support
of the employees and in the lower court decisions that agreed with
the Court’s interpretation. 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 (CA2 2018)
(en banc). Bostock’s brief and those of amici supporting his
position contend that sexual orientation is “a sex-based
consideration.”[ 12 ] Other
briefs state that sexual orientation is “a function of
sex”[ 13 ] or is
“intrinsically related to sex.”[ 14 ] Similarly, Stephens argues that sex and gender
identity are necessarily intertwined: “By definition, a transgender
person is someone who lives and identifies with a sex different
than the sex assigned to the person at birth.”[ 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, not
everything 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 yielded by 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 to sex. The Court draws a distinction between things that
are “inextricably” related and those that are related in “some
vague sense.” Ante , at 10. Apparently the Court would graft
onto Title VII some arbitrary line separating the things that are
related closely enough and those that are not.[ 16 ] And it would do this in the name of high
textualism. 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 transgender status 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 and gender
identity are “not relevant to employment decisions,” the Court
updates Title VII to reflect what it regards as 2020 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 a
woman. Ante , at 9 (emphasis added). The Court reasons that
if the employer fires the man but not the woman, the employer is
necessarily motivated by the man’s biological sex. Ante , at
9–10. After all, if two employees are identical in 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 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 thinks that
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 is amended, so is a
policy against employing gays, lesbians, or transgender
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 with any
certainty, as the hypothetical is apparently meant to suggest, that
the employer was motivated even in part by sex. 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 by arguing that sex is really the only difference
between the two 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
labels. If the employer’s objection to the male employee is
characterized as attraction to men, it seems that he is just like
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 is sexual 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. Something that 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, the Court
needs to show that its label is the correct one.

															And a labeling standoff would not help the Court
because that would mean that the bare text of Title VII does not
unambiguously show that its interpretation is right. The Court
would have no justification for its stubborn refusal to look 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 and a 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 have applicants
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: 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 a word,
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 or transgender
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 from sex,” 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
statutory text.

															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 bare statutory text is that the text is unambiguous and
therefore no one can reasonably interpret the text in any way other
than the Court does. Unless the Court has met that high standard,
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 by or in support of the employees. The Court apparently
finds these arguments unpersuasive, and so do I, but for the sake
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 or gender 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.3d 560, 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 a person
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 to prove 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 in a person of the opposite sex. See ibid. Much of the plaintiff ’s evidence in Price Waterhouse was of this nature. The plaintiff was a
woman who was passed over for partnership at an accounting firm,
and some of the adverse comments about her work appeared to
criticize her for being forceful and insufficiently “feminin[e].” Id. , at 235–236.

															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 sex- specific stereotype
at all.” Hively , 853 F. 3d, at 370 (Sykes, J.,
dissenting).

															To be sure, there may be cases in which a gay,
lesbian, or transgender individual can make a claim like the one in Price 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 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 with a person of a
different race. Several lower court cases have held 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
(CA11 1986). 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 the decisions 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’s race”? This employer
would be applying the same rule to all 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 of racial
discrimination in this country not to understand what is at stake
in such cases . . . . A prohibition on ‘race-mixing’ 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
the categories of male and female, see ante , at 5, and while
the Court does not take up any alternative definition as a ground
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 in
Appendix 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, male and 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 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 neck passionately,” 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 not what 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 and
their 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]henomena of sexual instincts and
their manifestations,” Webster’s New International Dictionary, at
2296 (2d ed.); Webster’s Third New International Dictionary 2081
(1966)). Since both of these come after three prior definitions
that refer to men and women, they are most naturally read to have
the same 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 is that discrimination because of “sex” was understood
during the era when Title VII was enacted to refer to men and
women. (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 discussed.

															II

															A

															So far, I have not looked beyond dictionary
definitions of “sex,” but textualists like Justice Scalia do not
confine their inquiry 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, and what matters in the end
is the answer to the question that the evidence is gathered to
resolve: How would the terms of a statute have been understood by
ordinary people at the time of enactment?

															Justice Scalia was perfectly clear on this
point. The words of a law, he insisted, “mean what they conveyed
to reasonable 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 it
is grounded on an understanding of the way language works. As Dean
John F. Manning explains, “the meaning of 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 by
placing them in their appropriate social and
linguistic context,” id ., at 79–80, and this is no less
true of statutes than any other verbal communications. “[S]tatutes
convey meaning only because members of a relevant linguistic
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, a judge
interpreting a statute should ask “ ‘what one would ordinarily
be understood as saying, given the circumstances in 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 the extent writers and readers share an understanding.
. . . Language in general, and legislation in particular,
is a social 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 for disaster.” 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 for an examination of the social context in which a statute
was enacted 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 were messages picked up by a
powerful radio telescope from a distant and utterly unknown
civilization. Statutes consist of 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 prohibition
of discrimination because of sex. To get a picture of this, we may
imagine this scene. Suppose that, while Title VII was under
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 and conveying their approval or
disapproval. What would these ordinary citizens have taken
“discrimination because of sex” to mean? Would they have thought
that this language prohibited discrimination because of sexual
orientation or gender 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” 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.

															1

															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 “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 ]

															2

															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).

															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. Ka y, 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 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.

															The Court makes a tiny effort to suggest that at
least some people in 1964 might have seen what Title VII really
means. 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 the Equal Rights Amendment. Ibid . To call this evidence merely feeble would be
generous.

															C

															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 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.

															D

															1

															The Court’s main excuse for entirely ignoring
the social context in which Title VII was enacted is that the
meaning of Title VII’s prohibition of discrimination because of sex
is 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 to the 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 we know 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 be taken 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 at work 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 precedent already established that sexual
harassment may constitute sex 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
the holding.

															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 observed that 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
provisions of 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 as committing the Court to a position on deep
philosophical questions 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 the plain
scope of its terms? Would even the most ardent “purposivists” and
fans of legislative history contend that congressional 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 transgender status
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 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 the societal
norms of 1964, the text of Title VII does not support the Court’s
holding. And the reasoning of Oncale does not preclude 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 that plainly
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 the label attached to a practice, has anyone ever
thought that the application of a law to a person’s conduct depends
on how it is labeled? Could a bank robber escape conviction by
saying he was engaged in asset enhancement? So if an employer
discriminates because of sex, the employer is liable no matter what
it calls its conduct, but if the employer’s 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 or gender 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 that an 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 can be experienced only by women, so a policy that
distinguishes between motherhood and parenthood is necessarily a
policy that draws a sex-based distinction. There was sex
discrimination in Phillips , because women with children were
treated disadvantageously compared to men with children.

															Lesson number two—“the plaintiff ’s sex
need not be the sole 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 of
sexual 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 discussion of 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 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 of men 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 basis of 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 the legislative 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 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. 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 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 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.

															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 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.
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 (CA2 2000); 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, the other
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 2007).

															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. 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 pre-2017 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 virtually certain 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 whose terms mirror Title VII’s.

															The Court’s brusque refusal to consider the
consequences of 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 interests and might
have found a way of accommodating at least 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,
the Court has greatly impeded—and perhaps effectively ended—any
chance of a bargained legislative resolution. Before issuing
today’s radical decision, the Court should have 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 should
necessarily 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 a matter 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 a
bathroom or locker room that is reserved for persons of the sex
with which they identify, and while the Court does not define 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 over time.[ 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 no clue why a transgender
person’s claim to such bathroom or locker 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 to individuals 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 (CA7 2017); 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 School Dist. , 897 F.3d 518, 533 (CA3
2018), cert. denied, 587 U. S. ___ (2019). Women’s sports . Another issue that may
come up under both Title VII and Title IX is the right of a
transgender individual to participate on a sports team or in an
athletic competition 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 major achievements, giving young women
an equal opportunity to participate 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 hormones in
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 law that
bars transgender students from participating in school sports in
accordance with gender identity). Students in these latter
categories have found success in athletic competitions reserved for
females.[ 49 ]

															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 transgender
status, 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 Dothard v. 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 a wide range of religious groups––Christian,
Jewish, and Muslim––express deep concern that the position now
adopted by the Court “will trigger open conflict with faith-

															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 the tenets
of the organization’s faith forces the group to communicate an
objectionable message.

															This problem is perhaps most acute when it comes
to the employment of teachers. A school’s standards for its faculty
“communicate a particular way of life to its students,” and a
“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 such teachers
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 about other very visible school employees who may not
qualify for

															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 carrying on”
of the “activities” of the organization or school, 42
U. S. C. §2000e–1(a); see also §2000e–2(e)(2), but the
scope of these provisions is disputed, and as interpreted by some
lower 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 have been brought under the
Affordable Care Act (ACA), which broadly prohibits sex
discrimination in the provision of healthcare.[ 57 ]

															Such claims present difficult religious liberty
issues because some employers and healthcare providers have strong
religious objections to sex reassignment procedures, and therefore
requiring them to pay for or to perform these procedures will have
a severe impact on their ability to honor their deeply held
religious beliefs. Freedom of speech . The Court’s decision
may even affect the way employers address their employees and the
way teachers and school officials address students. Under
established English usage, two sets of sex-specific singular
personal pronouns are used to refer to someone in the third person
(he, him, and his for males; she, her, and hers for females). 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 the two traditional categories.[ 58 ] Some jurisdictions, such as 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 disapproval of
same-sex relationships and sex reassignment procedures. 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. Constitutional claims . Finally, despite
the important differences between the Fourteenth Amendment and
Title VII, the Court’s decision may exert a gravitational pull in
constitutional 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 or gender identity with discrimination because
of sex, the Court’s decision will be cited as a ground for
subjecting all three forms of discrimination to the same exacting
standard of review.

															Under this logic, today’s decision may have
effects that extend well beyond the domain of federal anti-
discrimination statutes. This potential is illustrated by pending
and recent lower court cases in which transgender individuals have
challenged a variety of federal, state, and local 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 (WD Wash., 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 health plan’s exclusion of
coverage for sex reassignment procedures); Complaint in Gore v. Lee , No. 3:19–cv–00328 (MD Tenn., 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., 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 and groom 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
the consequences of its decision, we will not be able to avoid
those issues for long. The entire Federal Judiciary will be mired
for years in disputes about the reach of the Court’s reasoning.

															*  *  *

															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.

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

															I respectfully dissent.

															APPENDIXES

															A Webster’s New International Dictionary 2296
(2d ed. 1953): sex (sĕks), n. [F. sexe ,
fr. L. sexus; prob. orig., division, and

															akin to L. secare to cut. See section.] 1. One of the two divisions of organisms formed on the
distinction of male and 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 distinctive function
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 in their 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 ), and the small size and the locomotive power of the
male gamete ( spermatozoon or spermatozoid ), and in
the adult organisms often by many structural, physiological, and
(in higher forms) psychological characters, aside from the
necessary 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 of a
special kind (called sex chromosomes; idiochromosomes; accessory
chromosomes ) in addition to the ordinary paired autosomes.
These special chromosomes serve to 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 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. In this case
also, the female organism is XX , the eggs X , and the
zygotes respectively male ( XY ) and female ( XX ). In
another type of sex determination, as in certain moths and possibly
in the fowl, the female produces two kinds of eggs, the male only
one kind of sperm. Each type of egg contains one member of a pair
of differentiated chromosomes, called respectively Z
chromosomes and W chromosomes , while all the sperm 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 sex
character. 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. Webster’s Third New International Dictionary
2081 (1966): 1 sex \‘seks\ n –es often attrib [ME, fr. L sexus; prob. akin to L secare to cut–more at saw] 1: one of the two
divisions of organic esp. human beings respectively designated male
or female 2: the sum of 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 and femaleness with one or the other of
these being present in most higher animals though both may occur in
the same 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 in sexual reproduction are
indistinguishable—compare heterothallic, homothallic;
fertilization, meio- sis, 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 4: the
phenomena of sexual instincts and their manifestations ; specif : sexual intercourse 2 sex \“\ vt –ED/–ING/–ES 1: to determine the sex of (an organic being) —compare
autosexing 2 a: to increase the sexual appeal or attraction
of—usu. used with up b: to arouse the sexual
instincts or desires of—usu. used with up 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 the females (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 in loue. 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
speake against my sex. a 1586 Sidney Arcadia II. (1912) 158 The sexe of womankind of all other is most 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 is sooner 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
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 made
regulations for the government of the other sex. 1846 Ecclesiologist Feb. 41 The propriety and necessity 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 the strong 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 the woman
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, and usually 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 three perfect
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 bitterness
of the growing belief in three Sexes of Humanity—Men, Women, and
Clergymen.] e. The sex : the female sex. [F. le sexe .] Now rare. 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 the sex. 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 spite of his aversion to the sex. 1760-2 Goldsm. Cit. W. xcix, The men of Asia behave with more deference 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 the sex 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 are
of 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, the Lawrell 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 Proofs of 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 of sexes. 1848 Lindley Introd. Bot. (ed. 4) II. 80 Change of Sex under the influence of external
causes. 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 physiological differences
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 then
woman, 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 19 th 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 three fundamental 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 in Holinshed , 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. a 1704 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 (whether of
Pharisees or Saducees) should be represented, as [etc.]. 5. attrib. and Comb., as sex-distinction, function, etc.; sex-abusing,
transforming adjs.; sex-cell, a reproductive cell, with either
male or female function; a sperm-cell or an egg-cell. 1642 H. More Song of Soul I. III.
lxxi, Mad-making waters, sex trans-forming springs. 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 to have 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 noted on 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., ~’ lėss NESS
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 arising from 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 male or female: persons of
different sex. 2. either of the two groups 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 on these differences. 4. the
instinct or attraction drawing one sex toward another, or its
manifestation in life and conduct. 5. coitus. 6. to have
sex, Informal . to engage in sexual 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; to make 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 organ-isms 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 or female; the
physiological, functional, and psychological differences 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): 1 sex \‘seks\ n –es often
attrib [ME, fr. L sexus ; prob. akin to L secare to cut—more at saw] 1: one of the two divisions of organic
esp. human beings respectively designated male or female 2: the sum of 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 and femaleness with one or the other of
these being present in most higher animals though both may occur in
the same 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 in sexual 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 4: the
phenomena of sexual instincts and their manifestations ; specif : sexual intercourse 2 sex \“\ vt –ed/–ing/–es 1: to determine the sex of (an organic being) —compare
autosexing 2 a: to increase the sexual appeal or attraction
of—usu. used with up b: to arouse the sexual
instincts or desires of—usu. used with up 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 on
these differences. 3 . the instinct or attraction drawing one
sex toward another, or its manifestation in life and conduct. 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 arouse sexually: The only intent of that show was to sex up the audience . 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 their reproductive organs
and functions: How do you determine the sex of a lobster? b . The fact or condition of existing in these 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 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 and Fiscal 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)

															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 Extension of Mortgage
Assistance)

															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)
(Farm Credit 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)

															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 College and 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)

															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)

															20 U. S. C. §1756 (Remedies With
Respect to School 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)

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

															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)

															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 and Medical 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)

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

															34 U. S. C. §11133(a)(16) (Juvenile
Justice and Delinquency 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)

															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 the World Wars; Membership)

															36 U. S. C. §140705(c) (Military
Order of the World 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)

															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 of America, Inc.; Membership)

															36 U. S. C. §230505(c) (Vietnam
Veterans of America, 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 Assistance in 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)

															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
Health and 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 to States 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)

															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 Account of 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 and Other
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)

															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
Assistance for 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)

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

															42 U. S. C. §10406(c)(2)(B)(i)
(Family Violence Prevention and Services; Formula Grants to
States)

															42 U. S. C. §11504(b) (Enterprise
Zone Development; Waiver of Modification of Housing and Community
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)

															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 of Transportation; 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)

															D Notes 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). 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).” 5 That is what Judge Posner
did in the Seventh Circuit case holding that Title VII prohibits
discrimination because of sexual orientation. See Hively v. Ivy Tech Community College of Ind. , 853 F.3d 339 (2017) (en
banc). 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-century-old
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]n umbrella
term encompassing those whose gender identities or gender roles
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/ce-corner-glossary. It defines
“gender identity” as “[a]n internal sense of being male, female or
something else, which may or may not correspondto 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. 7 The EEOC first held that
“discrimination against a transgender individual because that
person is transgender” violates Title VII in 2012 in Macy v. Holder , 2012 WL 1435995, *11 (Apr. 20, 2012), though it
earlier advanced that position in an amicus brief in Federal
District Court in 2011, 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 or sexual
attractions, be they directed toward individuals of the same sex
(homosexual), the other sex (heterosexual), or both sexes
(bisexual).” 1 B.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 a member of the other biological sex”). 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 who comes in and says I’m not going to tell you what my
sex is, but, believe me, I was fired for my sexual orientation,
that person will lose”). 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. 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 the basis of sex” cover
certain conditions that are biologically tied to sex,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 or men. 17 Two
other Justices concurred in the judgment but did not comment on 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 on behalf of the three Justices in dissent that
“Title VII creates no independent cause of action for sex
stereotyping,” but he added that “[e]vidence of use by
decisionmakers of sex stereotypes is, of course, quite relevant to
the question of discriminatory intent.” Id. , at
294. 18 Notably, Title VII recognizes that in
light of history distinctions on the basis of race are always
disadvantageous, but it permits certain dis-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. 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). 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”). 21 J.
Kennedy, Statement by the President on the Establishment ofthe
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. 22 Analysis of the way Title VII’s key
language was used in books and articles 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]” was
used. 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 discrete group.” Id., at
5. Thus, as used in 1964, “discrimination because of sex” would
have been understood to mean discrimination against a woman or a
man based on “unfair beliefs or attitudes” about members of that
particular sex. Id., at 7. 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,” a category “for individuals whose sexual interests
are directed primarily toward people of the same sex and who are
either disturbed by . . . or wish 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 (3d
ed. 1980) (DSM–III) (similarly creating category of “Ego-dystonic
Homosexuality” for “homosexuals for whom changing sexual
orientation is a persistent 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. 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). 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). 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 of Gender Identity, 45 Int’l
J. Psychoanalysis 220 (1964). The term appears to have been coined
a year or two earlier. See Haig, The Inexorable Rise of Gender and
the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33
Archives Sexual Behav. 87, 93 (2004) (suggesting the term 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” his research team but noted that they were not
“fixed on copyrighting the term or on defending the concept as one
of the splendors of the scientific world.” Sex and Gender, p.
viii. 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)). 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 the time. 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 the amendment was understood to apply to
discrimination because of sexual orientation or gender
identity. 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 (CA8 1989) ( 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). 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) (hate crimes) (enacted 2009); 34
U. S. C. §12291(b)(13)(A) (certain federally funded
programs) (enacted 2013). 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. 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-title-ix-transgender.pdf. 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) switched from 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 theyear before, the student
won the women’s competition by over a second and 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 of
transitioning 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 transgender students to access housing
consistent with their gender identity.” Dear Colleague Letter
4. 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. 55 See, e.g. , EEOC v. Kamehameha Schools/Bishop
Estate , 990 F.2d 458, 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 already held that a state health insurance
policy that does not provide coverage for 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 have already concluded
that the ACA requires health insurance coverage for sex
reassignment surgery and treatment. Kadel v. Folwell ,
___ F. Supp. 3d ___, ___, 2020 WL 1169271, *12 (MDNC, Mar. 11,
2020) (allowingclaims of discrimination under ACA, Title IX, and
Equal Protection Clause); Tovar v. Essentia Health ,
342 F. Supp. 3d 947, 952–954 (D Minn. 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
made by 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 of title 29, be excluded from participation in, be
denied the benefits of, or be subjected to discrimination under,
any health program or activity, any part 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 established under
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;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 is motivated 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,
and pronouns 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 failing to 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 based on nondiscrimination policy adopted
pursuant to Title IX). SUPREME COURT OF THE UNITED STATES

															_________________

															Nos. 17–1618, 17–1623 and 18–107

															_________________

															GERALD LYNN BOSTOCK, PETITIONER

															17–1618 v. CLAYTON COUNTY, GEORGIA

															on writ of certiorari to the united states
court of appeals for the eleventh circuit

															ALTITUDE EXPRESS, INC., et al.,
PETITIONERS

															17–1623 v. MELISSA ZARDA and William Allen Moore,
Jr., co-independent executors of the ESTATE OF DONALD ZARDA

															on writ of certiorari to the united states
court of appeals for the second circuit

															R.G. & G.R. HARRIS FUNERAL HOMES,
INC., PETITIONER

															18–107 v. 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 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 in favor
of a similar ban. In 2019, the House again voted 236 to 173 to
outlaw employment discrimination on the basis of sexual
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 and follow the law as written,
regardless of whether we like the result. 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 ]

															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. 81Stat. 602. In
1973, Congress passed and President Nixon signed the Rehabilitation
Act, which in substance prohibited disability discrimination
against federal and certain other employees. 87Stat. 355. In 1990,
Congress passed and President George H. W. Bush signed the
comprehensive Americans with Disabilities Act. 104Stat. 327.

															To prohibit age discrimination and disability
discrimination, this Court did not unilaterally rewrite or update
the 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 has come
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 the Constitution’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, the Judiciary 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 they might 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
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 that
courts 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—and actually 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
literal matter, entail making a distinction based on sex. But to
prevail 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 establish that the ordinary meaning of
“discriminate because of sex”—not just the literal
meaning—encompasses sexual orientation discrimination. The
plaintiffs fall short on both counts. First , courts must follow ordinary
meaning, not literal meaning. And courts must adhere to the
ordinary meaning of 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
Justice Scalia 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 hard cases as
well as easy ones, the ordinary meaning (or the ‘everyday
meaning’ or the ‘commonsense’ reading) of the relevant 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 will often 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 in 1964 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 and
understandable to the citizenry. And judicial adherence to ordinary
meaning facilitates the democratic accountability of 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, and not 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 no good
judge would interpret the statute that way because the word
“vehicle,” in its ordinary meaning, does not encompass baby
strollers.

															The ordinary meaning principle is longstanding
and well settled. 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
the language 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
“the fruit of a vine,” but “in the common language of the people,”
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
is possible 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
interpretation of 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).

															The Court refused a reading of “mineral
deposits” that would include water, even if “water is a ‘mineral,’
in the 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 this manner.” Milner v. Department of Navy , 562 U.S.
562 , 578 (2011).

															The Court explained that, when construing
statutory phrases 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 ] Courts must heed the
ordinary meaning of the phrase as a whole , 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
“American flag” 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 in
basketball. 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
the meaning 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 more particular 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.’ It suggests a type of privacy evocative of human
concerns—not the sort usually associated with an entity like, say,
AT&T.” Id., at 406.

															Exactly right and exactly on point in this
case.

															Justice Scalia explained the extraordinary
importance of hewing 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
word in the text. In the words of Learned Hand: ‘a sterile
literalism . . . 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). Put another way,
“the meaning of a sentence may be more than that of the separate
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 of word clusters (like ‘driving a vehicle’) or phrases and
clauses 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 the phrase,
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 ]

															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
notice of what the law is. It destabilizes the rule of law and
thwarts 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
legislators and their staffs drafting the legal terms of the plans
launched 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,
and to adhere to the ordinary meaning of phrases, not just the
meaning 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 in this case boils down to the ordinary meaning of the
phrase “discriminate because of sex.” Does the ordinary meaning of
that phrase encompass discrimination because of sexual orientation?
The answer is plainly no.

															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, this Court has repeatedly emphasized that common parlance
matters 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 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 just a
mistake of language and psychology, but also a mistake of history
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, and many 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 ]

															That longstanding and widespread congressional
practice matters. When interpreting statutes, as the Court has
often 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); see id., 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.

															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 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.

															Where possible, we also strive to interpret
statutes so as not to create undue surplusage. It is not uncommon
to find some 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 form of, 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 ]

															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, the proposed 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 discrimination in federal employment. Exec. Order No.
13087, 3 CFR 191 (1999). The Nixon and Clinton Executive Orders
remain in effect today.

															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” the prior 1969
Executive Order “already banned, or henceforth would 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
employment, either by legislation applying to most
workers,[ 7 ] an executive order
applying to public employees,[ 8 ] or both. Almost every state statute or executive order
proscribing sexual orientation discrimination expressly prohibits
sexual orientation discrimination separately from the State’s ban
on sex discrimination.

															That common usage in the States underscores that
sexual orientation discrimination is commonly understood as a legal
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 of sex.
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 those
cases, 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 to Windsor to Obergefell would have been far easier
to analyze and decide if sexual orientation discrimination were
just a form of sex discrimination and therefore received the same
heightened 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 just miss 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 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. The opinions in those
five cases contain no trace of such reasoning. That is presumably
because everyone on this Court, too, has long understood that
sexual orientation 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 practice in
the Executive Branch, the laws in the States, and the decisions of
this Court—overwhelmingly establish that sexual orientation
discrimination is distinct from, and not a form of, sex
discrimination. The usage has been consistent across 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 and widely
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 of statutory
interpretation. And the second contradicts the widespread 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
judges.[ 9 ]

															The unanimity of those 30 federal judges shows
that the question as a matter of law, as compared to as a matter of
policy, was not deemed close. Those 30 judges realized a seemingly
obvious point: Title VII is not a general grant of authority for
judges to fashion an evolving common law of equal 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
the law, 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 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 of statutory 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 of
words 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 that courts 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 a fundamental mistake by confusing ordinary meaning with
subjective 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 (back in
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
to the “terms, conditions, or privileges of employment,” as this
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 and
recognized that distinction between sex discrimination and sexual
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.

															To be sure, as Judge Lynch appropriately
recognized, it is “understandable” that those seeking legal
protection for gay people “search for innovative arguments to
classify workplace bias against gays as a form of discrimination
that 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 the distinctive 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 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.

															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 surmise that
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.” 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 aspiration that judges base their decisions on law
rather than on personal preference. The best way for judges to
demonstrate that we are deciding cases based on the ordinary
meaning of 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 to prohibit 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., 1st Sess. 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 the House 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 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 and a 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, not amend, the work of the People’s representatives,”
even when 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, this Court is the wrong
body to change American law in that way. 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 reverberate in 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 and lesbian Americans
have worked hard for many decades to achieve 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 to mention in their daily lives. They have
advanced powerful policy 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 Court’s
judgment. Notes 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. 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 laws that substantially
burden the exercise of religion, subject to limited exceptions.
§2000bb–1. 3 The full phrasing of the
statute is provided above in footnote 2. This 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 the same as the
statutory phrase “to fail or refuse to hire or to discharge any
individual” because of sex. 4 Another longstanding
canon of statutory interpretation—the absurdity canon—similarly
reflects the law’s focus on ordinary meaning rather 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
. . . an exception to) the ordinary meaning rule.” W.
Eskridge, Interpreting Law 72 (2016). “What the rule of absurdity
seeks to do is what all rules of interpretation seek to do: make
sense of the text.” A. Scalia & B. Garner, Reading Law 235
(2012). 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) (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”). 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 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 the basis 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). 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
because of “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) (West 2018)
(prohibiting discrimination because of “sex, . . . sexual
orientation,” etc.); Iowa Code §216.6(1)(a) (2018) (prohibiting
discrimination because of “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) (West
Supp. 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–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 public-employment 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 public-employment discrimination because
of “sexual orientation”); 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”). 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.2d 327, 329–330 (CA9
1979); Medina v. Income Support Div., N. M. , 413 F.3d 1131 , 1135 (CA10 2005). 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 analytical components 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 the basis 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
other issue 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, the question 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 the question
whether the racial nondiscrimination principle applied to public
schools. But that is not this case.