Bostock v. Clayton County

BOSTOCK v. CLAYTON COUNTY, GEORGIA

certiorari to the united states court of appeals for

the eleventh circuit No. 17–1618. Argued October 8, 2019—Decided June 15, 2020* In each of these cases, an employer allegedly fred a long-time employee simply for being homosexual or transgender. Clayton County, Georgia, fred Gerald Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. Altitude Express fred Donald Zarda days after he mentioned being gay. And R. G. & G. R. Harris Funeral Homes fred Aimee Stephens, who presented as a male when she was hired, after she informed her employer that she planned to “live and work full-time as a woman.” Each employee sued, alleging sex discrimination under Title VII of the Civil Rights Act of 1964. The Eleventh Circuit held that Title VII does not prohibit employers from firing employees for being gay and so Mr. Bos-tock's suit could be dismissed as a matter of law. The Second and Sixth Circuits, however, allowed the claims of Mr. Zarda and Ms. Stephens, respectively, to proceed. Held: An employer who fires an individual merely for being gay or trans-gender violates Title VII. Pp. 654–683. (a) Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e–2(a)(1). The straightforward application of Title VII's terms interpreted in accord with their ordinary public meaning at the time of their enactment resolves these cases. Pp. 654–662. (1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. And “the ordinary meaning of `because of' is `by reason of' or `on account of,' ” University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 350. That term incorporates the but-for causation standard, id., at 346, 360,

which, for Title VII, means that a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment action. The term “discriminate” meant “[t]o make a difference in treatment or favor (of one as compared with others).” Webster's New International Dictionary 745. In so-called “disparate treatment” cases, this Court has held that the difference in treatment based on sex must be intentional. See, e. g., Watson v. Fort Worth Bank & Trust, 487 U. S. 977, 986. And the statute's repeated use of the term “individual” means that the focus is on “[a] particular being as distinguished from a class.” Webster's New International Dictionary, at 1267. Pp. 655–659.

(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff's sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee's sex when deciding to discharge the employee. Because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently because of their sex, an employer who intentionally penalizes an employee for being homosexual or transgender also violates Title VII. There is no escaping the role intent plays: Just as sex 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. Pp. 659–662. (b) Three leading precedents confirm what the statute's plain terms suggest. In Phillips v. Martin Marietta Corp., 400 U. S. 542, a company was held to have violated Title VII by refusing to hire women with young children, despite the fact that the discrimination also depended on being a parent of young children and the fact that the company favored hiring women over men. In Los Angeles Dept. of Water and Power v. Manhart, 435 U. S. 702, an employer's policy of requiring women to make larger pension fund contributions than men because women tend to live longer was held to violate Title VII, notwithstanding the policy's evenhandedness between men and women as groups. And in Oncale v. Sundowner Offshore Services, Inc., 523 U. S. 75, a male plaintiff alleged a triable Title VII claim for sexual harassment by co-workers who were members of the same sex. The lessons these cases hold are instructive here. First, it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. In Manhart, the employer might have called its rule a “life expectancy” adjustment, and in

Phillips, the employer could have accurately spoken of its policy as one based on “motherhood.” But such labels and additional intentions or motivations did not make a difference there, and they cannot make a difference here. When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex. Second, the plaintiff's sex need not be the sole or primary cause of the employer's adverse action. In Phillips, Manhart, and Oncale, the employer easily could have pointed to some other, nonprotected trait and insisted it was the more important factor in the adverse employment outcome. Here, too, it is of no sig-nifcance if another factor, such as the plaintiff's attraction to the same sex or presentation as a different sex from the one assigned at birth, might also be at work, or even play a more important role in the employer's decision. Finally, an employer cannot escape liability by demon-strating that it treats males and females comparably as groups. Man hart is instructive here. An employer who intentionally fires an individual homosexual or transgender employee in part because of that individual's sex violates the law even if the employer is willing to subject all male and female homosexual or transgender employees to the same rule. Pp. 662–665.

(c) The employers do not dispute that they fred their employees for being homosexual or transgender. Rather, they contend that even intentional discrimination against employees based on their homosexual or transgender status is not a basis for Title VII liability. But their statutory text arguments have already been rejected by this Court's precedents. And none of their other contentions about what they think the law was meant to do, or should do, allow for ignoring the law as it is. Pp. 665–682.

(1) The employers assert that it should make a difference that plaintiffs would likely respond in conversation that they were fred for being gay or transgender and not because of sex. But conversational conventions do not control Title VII's legal analysis, which asks simply whether sex is a but-for cause. Nor is it a defense to insist that intentional discrimination based on homosexuality or transgender status is not intentional discrimination based on sex. An employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules. Nor does it make a difference that an employer could refuse to hire a gay or transgender individual without learning that person's sex. By intentionally setting out a rule that makes hiring turn on sex, the employer violates the law, whatever he might know or not know about individual applicants. The employers also stress that homosexuality and transgender status are distinct concepts from sex, and that if Congress wanted to address these matters in Title VII, it would have referenced them specifically. But when Con-

gress chooses not to include any exceptions to a broad rule, this Court applies the broad rule. Finally, the employers suggest that because the policies at issue have the same adverse consequences for men and women, a stricter causation test should apply. That argument unavoidably comes down to a suggestion that sex must be the sole or primary cause of an adverse employment action under Title VII, a suggestion at odds with the statute. Pp. 666–673.

(2) The employers contend that few in 1964 would have expected Title VII to apply to discrimination against homosexual and transgender persons. But legislative history has no bearing here, where no ambiguity exists about how Title VII's terms apply to the facts. See Milner v. Department of Navy, 562 U. S. 562, 574. While it is possible that a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context, the employers do not seek to use historical sources to illustrate that the meaning of any of Title VII's language has changed since 1964 or that the statute's terms ordinarily carried some missed message. Instead, they seem to say when a new application is both unexpected and important, even if it is clearly commanded by existing law, the Court should merely point out the question, refer the subject back to Congress, and decline to enforce the law's plain terms in the meantime. This Court has long rejected that sort of reasoning. And the employers' new framing may only add new problems and leave the Court with more than a little law to overturn. Finally, the employers turn to naked policy appeals, suggesting that the Court proceed without the law's guidance to do what it thinks best. That is an invitation that no court should ever take up. Pp. 673–682. No. 17–1618, 723 Fed. Appx. 964, reversed and remanded; No. 17–1623, 883 F. 3d 100, and No. 18–107, 884 F. 3d 560, affirmed. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Ginsburg, Breyer, Sotomayor, and Kagan, JJ., joined. Alito, J., filed a dissenting opinion, in which Thomas, J., joined, post, p. 683. Kavanaugh, J., filed a dissenting opinion, post, p. 780.

Pamela S. Karlan argued the cause for petitioner in No. 17–1618 and respondents in No. 17–1623. With her on the briefs in No. 17–1623 were Gregory Antollino, Stephen Bergstein, Jeffrey L. Fisher, Brian H. Fletcher, Ria Tabacco Mar, James D. Esseks, David D. Cole, and Christopher Dunn. On the briefs in No. 17–1618 were Brian J. Suther-land and Thomas J. Mew IV.

Jeffrey M. Harris argued the cause for respondent in No. 17–1618 and petitioners in No. 17–1623. On the brief in No. 17–1618 were Jack R. Hancock, William H. Buechner, Jr., and Michael M. Hill. On the brief in No. 17–1623 was Saul D. Zabell.

Solicitor General Francisco argued the cause for the United States as amicus curiae urging affirmance in No. 17– 1618 and reversal in No. 17–1623. With him on the brief were Assistant Attorneys General Hunt and Dreiband, Deputy Solicitor General Wall, Deputy Assistant Attorney General Mooppan, Sopan Joshi, Eric Treene, Charles W. Scarborough, and Stephanie R. Marcus.

Mr. Cole argued the cause for respondent-intervenor Aimee Stephens in No. 18–107. With him on the briefs were John A. Knight, Elizabeth O. Gill, Gabriel Arkles, Chase B. Strangio, Ms. Tabacco Mar, Mr. Esseks, Louise Melling, Jay D. Kaplan, and Daniel S. Korobkin.

John J. Bursch argued the cause for petitioner in No. 18– 107. With him on the brief were Kristen K. Waggoner, David A. Cortman, James A. Campbell, Katherine L. Anderson, Jeana J. Hallock, and Joel J. Kirkpatrick.

Solicitor General Francisco argued the cause for the federal respondent in No. 18–107. With him on the brief were Assistant Attorneys General Hunt and Dreiband, Deputy Solicitor General Wall, Deputy Assistant Attorney General Mooppan, Johnathan C. Bond, Messrs. Treene and Scarbor-ough, and Ms. Marcus.†

Aaron M. Frey of Maine, Brian E. Frosh of Maryland, Maura Healey of Massachusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota, Aaron D. Ford of Nevada, Gurbir S. Grewal of New Jersey, Hector H. Balderas of New Mexico, Ellen F. Rosenblum of Oregon, Josh Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island, Thomas J. Donovan, Jr., of Vermont, Mark R. Herring of Virginia, and Robert Ferguson of Washington; for Altria Group, Inc., by Lauren R. Goldman, Scott A. Chesin, Murray R. Garnick, Andrew J. Pincus, and Nicole A. Saharsky; for the American Bar Association by Robert M. Carlson and Douglas Hallward-Driemeier; for the American Federation of Labor and Congress of Industrial Organizations by Harold C. Becker and Matthew J. Ginsburg; for the American Medical Association et al. by Scott B. Wilkens; for the American Psychological Association et al. by Jessica Ring Amunson, Emily L . Chapuis, Aaron M. Panner , Deanne M. Ottaviano , and Nathalie F. P . Gilfoyle; for Anti-discrimination Scholars by Mitchell P . Reich, Thomas P . Schmidt, and Brian Soucek, pro se; for Business Organizations by Lisa S. Blatt; for Employment Discrimination Law Scholars by Sasha Samberg-Champion, Joseph J. Wardenski, and Sachin S. Pandya and Marcia L. McCormick, both pro se; for Former Executive Branch Officials and Leaders et al. by Evan Wolfson; for Georgia Equality by Emmet J. Bondurant; for GLBTQ Legal Advocates & Defenders et al. by Alan E. Schoenfeld, Mary Bonauto, Christopher Stoll, Julie Wilensky , and Shannon Minter; for Historians by Chanakya A. Sethi and Rakesh N. Kilaru; for Impact Fund et al. by Lindsay Nako and David Nahmias; for inter- ACT: Advocates for Intersex Youth et al. by Jonah M. Knobler; for Lambda Legal Defense and Education Fund, Inc., by Karen L. Loewy , Omar Gonzalez-Pagan, Sharon M. McGowan, and Gregory R. Nevins; for the Lawyers' Committee for Civil Rights Under Law et al. by Daniel A. Rubens, Kristen Clarke, Jon Greenbaum, Dariely Rodriguez, Phylicia H. Hill, Vanita Gupta, and Michael Zubrensky; for the Legal Aid Society by Brian T. Burgess, Richard Blum, and Frederick H. Rein; for Lesbian, Gay, Bisexual, Transgender, and Queer Members of the Legal Profession et al. by Margaret Costello; for Local Governments et al. by Zachary W. Carter, Richard Dearing, Devin Slack, Michael N. Feuer, James P . Clark, Kathleen Kenealy, Blithe Smith Bock, Michael Walsh, Danielle L. Gol-dstein, Dennis J. Herrera, Jeremy M. Goldman, Jaime M. Huling Delaye, James R. Williams, Greta S. Hansen, Jeremy A. Avila, George McAn-drews, William S. Kelly, G. Nicholas Herman, Mark A. Flessner, Christo-

pher J. Caso, Kristin M. Bronson, Lawrence Garcia, Louis N. Rainone, Dave Williamson, F. Joseph Abood, Mary C. Wickham, Roger J. Desid-erio, Susan L. Segal, Kathleen E. Gill, Mark Barber, Lyndsey M. Olson, Peter S. Holmes, Michael Jenkins, John M. Barr, Betsy Cavendish, Edward M. Pikula, Jordan B. Yeager , and William Fosbre; for Members of Congress by Peter T. Barbur; for the Modern Military Association of America et al. by James Moore III, Jonathan L. Marcus, John M. Nannes, and Peter Perkowski; for the Muslim Bar Association of New York et al. by Adeel A. Mangi and Mr. Knobler; for the National Education Association et al. by Jeffrey A. Lamken, Alice O'Brien, Eric A. Harrington, David Strom, Francisco M. Negrón, Jr., and Sonja Trainor; for the National LGBT Bar Association et al. by Sanford Jay Rosen and Michael S. Nunez; for the National Women's Law Center et al. by Erica C. Lai, Danielle C. Morello, Fatima Goss Graves, Emily Martin, and Sunu P . Chandy; for Philosophy Professors by Lisa Hogan and Esteban M. Morin; for the Presiding Bishop and President of the House of Deputies of the Episcopal Church et al. by Jeffrey S. Trachtman; for Service Employees International Union et al. by James M. Finberg, Barbara J. Chis-holm, Nicole G. Berner, and Claire Prestel; for the Southern Poverty Law Center et al. by Melissa Arbus Sherry; for Statutory Interpretation and Equality Law Scholars by Elizabeth B. Wydra, Brianne J. Gorod, Ashwin Phatak, and Katie Eyer , pro se; for the Trevor Project et al. by Richard W. Smith and Douglas C. Dreier; for Wisconsin Advocacy Organizations by Jeffrey A. McIntyre; for the Women's and Children's Advocacy Project et al. by Wendy J. Murphy; for Walter Dellinger et al. by Joshua Matz and Laurence H. Tribe; for William N. Eskridge, Jr., et al. by Mr. Esk-ridge, pro se; for Kenneth B. Mehlman et al. by Roy T. Englert, Jr., and Laurie R. Rubenstein; for Brian Slocum et al. by Andrew Rhys Davies; and for 206 Businesses by Todd Anten, Kathleen M. Sullivan, Cynthia H. Hyndman, Robert S. Cohen, and Justin T. Reinheimer.

Jeffrey T. Green and Patrick C. Bryant filed a brief of amici curiae urging reversal in No. 17–1618 and affirmance in No. 17–1623 for Scholars Who Study the LGB Population. Briefs of amici curiae urging reversal in Nos. 17–1623 and 18–107 were filed for Ryan T. Anderson by Charles S. LiMandri, Paul M. Jonna, and Jeffrey M. Trissell; and for W. Burlette Carter by Ms. Carter, pro se. Briefs of amici curiae urging reversal in No. 18–107 were filed for the Center for Arizona Policy by Aaron T. Martin and Cathi Herrod; for the

Center for Religious Expression by Nathan W. Kellum; for the Christian Employers Alliance by Parker Douglas ; for Family Policy Groups by Jonathan R. Whitehead; for the Foundation for Moral Law by Matthew J. Clark and John A. Eidsmoe; for Free Speech Advocates by Thomas P . Monaghan and Walter M. Weber; for the Great Lakes Justice Center by William Wagner, Erin Elizabeth Mersino , and Katherine L. Henry; for the Independent Women's Forum et al. by Anita Y . Milanovich; for Judicial Watch, Inc., by Robert D. Popper; for Military Spouses United by Arthur A. Schulcz, Sr.; for National Medical and Policy Groups That Study Sex and Gender Identity by Antony B. Kolenc; for Public Advocate of the United States et al. by William J. Olson, Herbert W. Titus, Jeremiah L. Morgan, Robert J. Olson, Joseph W. Miller, Gary G. Kreep, and J. Mark Brewer; for Scholars of Family and Sexuality by Dean R. Broyles; for Scholars of Philosophy et al. by David R. Langdon; for the United States Conference of Catholic Bishops et al. by Anthony R. Picarello, Jr., Jeffrey Hunter Moon, Michael F. Moses, and Hillary E. Byrnes; for Women's Liberation Front by David Bookbinder; for William J. Bennett by Charles J. Cooper, David H. Thompson, and John D. Ohlendorf ; and for Walt Heyer et al. by Gregory H. Teufel.

Briefs of amici curiae urging affirmance in No. 17–1618 and reversal in Nos. 17–1623 and 18–107 were filed for the State of Tennessee et al. by Herbert H. Slatery III, Attorney General of Tennessee, Andrée S. Blumstein, Solicitor General, and Sarah K. Campbell, Associate Solicitor General, Douglas J. Peterson, Attorney General of Nebraska, and David Bydalek, Chief Deputy Attorney General, and Ken Paxton, Attorney General of Texas, Kyle D. Hawkins, Solicitor General, and M. Stephen Pitt, and by the Attorneys General for their respective States as follows: Steve Marshall of Alabama, Kevin G. Clarkson of Alaska, Leslie Rutledge of Arkansas, Lawrence G. Wasden of Idaho, Jeff Landry of Louisiana, Eric S. Schmitt of Missouri, Dave Yost of Ohio, Mike Hunter of Oklahoma, Alan Wilson of South Carolina, Jason R. Ravnsborg of South Dakota, and Patrick Morrisey of West Virginia; for Advocates for Faith and Freedom by C. Thomas Ludden; for the American Public Philosophy Institute by David R. Upham; for the Billy Graham Evangelistic Association et al. by Frederick W. Claybrook, Jr., Steven W. Fitschen, James A. Davids, and David A. Bruce; for Business Organizations by Sean P . Gates; for the Council of Christian Colleges & Universities et al. by R. Shawn Gunnar-son, Steven M. Sandberg, and Heather E. Gunnarson; for Defend My Pri-

vacy et al. by Joel A. Ready; for the First Liberty Institute by Kelly J. Shackelford, Hiram S. Sasser III, and Stephanie N. Taub; for the H. T. Hackney Co. by Edward H. Trent; for the Institute for Faith and Family et al. by Deborah J. Dewart and B. Tyler Brooks; for the National Association of Evangelicals et al. by Alexander Dushku and Luke W. Goodrich; for the National Organization for Marriage et al. by John C. Eastman and Anthony T. Caso; for the Religious Freedom Institute's Islam & Religious Freedom Action Team et al. by Michael K. Whitehead; and for David A. Robinson by Mr. Robinson, pro se.

William C. Duncan filed a brief of amici curiae urging affirmance in No. 17–1618 and reversal in No. 17–1623 for the Marriage Law Foundation. Briefs of amici curiae urging affirmance in No. 18–107 were filed for Anti-Sexual Assault Organizations et al. by Walter Dellinger; for Law & History Professors by Craig J. Konnoth, Kevin Costello, Jack Harrison, and Kyle Velte , all pro se , and Andrew H. DeVoogd, Susan M. Finegan, and Donald C. Davis; for Scholars Who Study the Transgender Population by David R. Carpenter; for the Transgender Law Center et al. by Julia R. Lissner, Megan M. Kokontis, Melissa L. Cizmorris, Andrea Chinyere Ezie, Lynly Egyes, and Dale Melchert; for the Transgender Legal Defense & Education Fund et al. by Howard S. Zelbo and Carmine D. Boccuzzi, Jr.; for Women Business Owners et al. by Thomas Brejcha and Joan M. Mannix; and for Samuel R. Bagenstos et al. byDaniel Woofter, Kevin K. Russell, Eric F. Citron, Erica Oleszczuk Evans, Martin S. Lederman, Mr. Bagenstos, Leah M. Litman, Margo Schlanger, and Michael C. Dorf, all pro se. Briefs of amici curiae were filed in all cases for Liberty Counsel by Mathew D. Staver, Anita L. Staver, Horatio G. Mihet, Roger K. Gan-nam, and Rena M. Lindevaldsen; for Members of Congress by Timothy J. Newton and Kenneth W. Starr; for the New Civil Liberties Alliance by Jonathan F. Mitchell and Aditya Dynar; and for Women CEOs et al. by Suzanne B. Goldberg, Richard M. Segal, and Cynthia Cook Robertson. Briefs of amici curiae in Nos. 17–1618 and 17–1623 were filed for the Foundation for Moral Law by Mr. Eidsmoe; and for Karl Olson by Janine M. Brookner. Randall L. Wenger, Jeremy L. Samek, and Curtis M. Schube filed a brief of amicus curiae for Paul R. McHugh in No. 18–107.

Few facts are needed to appreciate the legal question we face. Each of the three cases before us started the same way: An employer fred a long-time employee shortly after the employee revealed that he or she is homosexual or trans-gender—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 fred 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 fred.

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

While these cases began the same way, they ended differently. Each employee brought suit under Title VII alleging unlawful discrimination on the basis of sex. 78 Stat. 255, 42 U. S. C. § 2000e–2(a)(1). In Mr. Bostock's case, the Eleventh Circuit held that the law does not prohibit employers from firing employees for being gay and so his suit could be dismissed as a matter of law. 723 Fed. Appx. 964 (2018) (per curiam ). 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. 960 (2019).

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

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.

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 flailed to signal his turn at the intersection, we might call each a but-for cause of the collision. Cf. Bur-rage 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 con-fuence 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 em-

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

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 709, 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 condi-

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

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 inextri-

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 trans-gender 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 deci-sionmaking. Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts

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).

If more support for our conclusion were required, there's no need to look far. All that the statute's plain terms sug-

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

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 sta-

Second, the plaintiff's sex need not be the sole or primary cause of the employer's adverse action. In Phillips, Man-hart, 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 demon-strating 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.

What do the employers have to say in reply? For present purposes, they do not dispute that they fred 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.

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 fred, 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 fred because of sex. Cf. post, at 684– 685 (Alito , J., dissenting); post, at 786–791 (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 fred 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

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 690–693 (Alito , J., dissenting); post, at 790–791 (Ka-vanaugh, 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 Man-hart, the employer intentionally required women to make

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

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 688 (Alito , J., dissenting); post, at 791–793 (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 em-

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 posten-actment legislative history, they urge, should tell us something. Cf. post, at 683–684, 722–723 (Alito , J., dissenting); post, at 782, 793 (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 in part) (“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

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 employ-

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 fred. The fact that female sex and attraction to women can also get an employee fred 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 quali-fed 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

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.

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,

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

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

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 employers' 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

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

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] diff-cult 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

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 off-cially 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, 13 FEP Cases 123, 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 719 (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 ex-

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.” Whit-man 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 re-ceiving 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 724–734 (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

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 transgen-der 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 justi-fcations 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

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,

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.

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

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 en-forcing the terms of the statute, but that is preposterous.

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).

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 fag, 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 refect 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.

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 653. (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) (“[t]he 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) (“[e]ither of the two divisions of organic beings distinguished as male and female respectively”).

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 655–659, 662.

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

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 674, 677, 680.

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 flailed to see the obvious for the first 48 years after Title VII became law.7 Day in and day out, the Commission

The Court's argument is not only arrogant, it is wrong. It flails on its own terms. “Sex,” “sexual orientation,” and “gender identity” are different concepts, as the Court concedes. Ante , at 669 (“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 661 (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 651–652 (When an employer “fires an individual for being homosexual or transgender,” “[s]ex plays a necessary and undisguisable role in the decision”); ante, at 660 (“[I]t is impossible to discriminate against

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 transgen-der 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 760, 773.

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 trans-gender individuals implemented that policy without knowing

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 668–669. 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 668.

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 668–669.

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 fred? 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 661–662.

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 flailed 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 660–661, and that discrimination on the basis of sexual orientation or gender identity involves the application of “sex-based rules,” ante, at 667. 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

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

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 660. 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 refect 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. Ibid. (emphasis added). The Court reasons that if

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 661, 665, 671, but its exam-

The Court tries to avoid this inescapable conclusion by ar-guing 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 660. 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 664–665, 667. 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 660. 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.

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 trans-gender without discriminating against that individual based on sex,” ante, at 660, 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 669, 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.

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 Wa-terhouse 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 flails 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.

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]et-erosexuality 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).

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 ft 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.

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 “homopho-bic” 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 655, 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

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 (“[t]he 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

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

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 ignor-ing . . . 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.

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?

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 ft within some exotic understanding of sex discrimination would not have crossed their minds.

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

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 En-

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, 66 Stat. 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, § 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 hereafter 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).

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 Psychiat-

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, 62 Stat. 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: Considera-

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

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' certif-cates and removed at least 14 university professors. Esk-ridge, Dishonorable Passions, at 103.

Individuals who engaged in homosexual acts also faced the loss of other occupational licenses, such as those needed to work as a “lawyer, doctor, mortician, [or] beautician.” 26 See, e. g., Florida Bar v. Kay, 232 So. 2d 378 (Fla. 1970) (attorney disbarred after conviction for homosexual conduct in public bathroom).

In 1964 and for many years thereafter, homosexuals were barred from the military. See, e. g., Army Reg. 635–89, § I(2)(a) (July 15, 1966) (“Personnel who voluntarily engage in homosexual acts, irrespective of sex, will not be permitted

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

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 676. 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.

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

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

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 675–676.

The Court's argument rests on a false premise. As already explained at length, the text of Title VII does not pro-

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 678 (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.” Id., at 79 (emphasis added).

Properly understood, Oncale does not provide the slight-est 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 On-cale 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.

The Court argues that two other decisions––Phillips v. Martin Marietta Corp., 400 U. S. 542 (1971) (per curiam ),

The Court extracts three “lessons” from Phillips, Man-hart, 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 664. 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 664; see also ante, at 667. But motherhood, by definition, is a condition that can be experienced only by women, so a policy that distinguishes

Lesson number two—“the plaintiff's sex need not be the sole or primary cause of the employer's adverse action,” ante, at 665—is similarly unhelpful. The standard of causation in these cases is whether sex is necessarily a “motivat-ing 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 665, 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.

Because the opinion of the Court fies a textualist fag, 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.

So, why in these cases are congressional intent and the legislative history of Title VII totally ignored? Any assessment of congressional intent or legislative history seriously undermines the Court's interpretation.

As the Court explained in General Elec. Co. v. Gilbert, 429 U. S. 125, 143 (1976), the legislative history of Title VII's prohibition of sex discrimination is brief, but it is nevertheless revealing. The prohibition of sex discrimination was “added to Title VII at the last minute on the floor of the House of Representatives,” Meritor Savings Bank, 477 U. S., at 63, by Representative Howard Smith, the Chairman of the Rules Committee. See 110 Cong. Rec. 2577 (1964). Representative Smith had been an ardent opponent of the civil rights bill, and it has been suggested that he added the prohibition against discrimination on the basis of “sex” as a poison pill. 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

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 683, and two such bills were before Congress in 1991 37

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

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 674, 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 681. 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.

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

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

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

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

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 identi-fies.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

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 the year 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.

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

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

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 indi-

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.)

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.

Under this logic, today's decision may have effects that extend well beyond the domain of federal antidiscrimination 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 transgen-der 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. Fol-well, 446 F. Supp. 3d 1, 18 (MDNC 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

Appendix A to opinion of Alito , J.

and ability to dress and groom as a female); Edmo v. Cori-zon, 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 fred 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 trans-gender 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 680–681.

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

I respectfully dissent.

APPENDIXES

Webster's New International Dictionary 2296 (2d ed. 1953): sex (se˘ks), 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

Appendix A to opinion of Alito, J.

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 sper-

matozoid), and in the adult organisms often by many structural,

physiological, and (in higher forms) psychological characters,

aside from the necessary modification of the reproductive appa-

ratus. Cf. hermaphrodite , 1. In botany the term sex is often

extended to the distinguishing peculiarities of staminate and pis-

tillate 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 chromo-

somes) 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 mono-

some). 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 or-

ganism produces two types of gametes, one possessing an X

chromosome , the other a Y chromosome , these being visibly dif-

ferent 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 possi-

bly 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

Appendix A to opinion of Alito , J.

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 <a member of the opposite ~> 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

Appendix A to opinion of Alito, J.

resulting from genital union <agree that the Christian's attitude toward ~ should not be considered apart from love, marriage, family—M. M. Forney> 4: the phenomena of sexual instincts and their manifestations <with his customary combination of philosophy, insight, good will toward the world, and entertaining interest in ~—Allen Drury> <studying and assembling what modern scientists have discovered about ~—Time>; specif : sexual intercourse <an old law imposing death for ~ outside marriage—William Empson>

2

sex \“\ vt –ed/–ing/–es 1: to determine the sex of (an organic being) <it is difficult to ~ the animals at a distance— E. A. Hooton>—compare autosexing 2 a: to increase the sexual appeal or attraction of—usu. used with up <titles must be ~ed up to attract 56 million customers—Time> b: to arouse the sexual instincts or desires of—usu. used with up <watching you ~ing up that bar kitten—Oakley Hall>

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 fehs, 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 N ashe 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

Appendix A to opinion of Alito , J. 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 magnifcency & 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. Ref. 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. 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

Appendix A to opinion of Alito, J.

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 V anbrugh 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

Appendix A to opinion of Alito , J.

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. Free-thought xv. (1888) 429 What is the true type of social (moral) action in matters of sex? 1895 Crackanthorpe in 19th Cent. Apr. 607 (art.) Sex in modern literature. Ibid. 614 The writers and readers who have strenuously refused to allow to sex its place in creative art. 1912 H. G. Wells Marriage ii. § 6. 72 The young need .. to be told .. all we know of 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.

Appendix A to opinion of Alito, J.

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):

se ˘x, n. Being male or female or hermaphrodite (what is its ~?; ~

does not matter; without distinction of age or ~), whence ~'less

2 a., immoderately concerned with ~; males

a., ~'le˙ss ness n., ~'Y

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 conscious-

ness, of ~ (~ antagonism, ~ instinct, ~ urge); ~ appeal, attrac-

tiveness arising from difference of ~. [f. L sexus –u¯ s; 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 pas-

sionately: 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 interest-

ing, attractive, or exciting: We've decided to sex up the movie

with some battle scenes. [ME < L sex(us), akin to secus, deriv.

of secre to cut, divide; see SECTION] American Heritage Dictionary 1187 (1969): sex (se˘ks) n. 1. a. The property or quality by which organisms

are classified according to their reproductive functions.

Appendix B to opinion of Alito , J.

b. Either of two divisions, designated male and female, of this

classification. 2. Males or females collectively. 3. The condi-

tion or character of being male or female; the physiological, func-

tional, 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†.]

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 or-

ganic esp. human beings respectively designated male or female

<a member of the opposite ~> 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 evolution-

ary change, that in its typical dichotomous occurrence is usu.

genetically controlled and associated with special sex chromo-

somes, and that is typically manifested as maleness and female-

ness 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 fe-

males are replaced by mating types or because the participants

in sexual reproduction are indistinguishable—compare hetero-

thallic, 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 re-

sulting from genital union <agree that the Christian's attitude

toward ~ should not be considered apart from love, marriage,

family—M. M. Forney> 4: the phenomena of sexual instincts

and their manifestations <with his customary combination of

philosophy, insight, good will toward the world, and entertaining

interest in ~—Allen Drury> <studying and assembling what

Appendix B to opinion of Alito, J.

modern scientists have discovered about ~—Time>; specif: sex-

ual intercourse <an old law imposing death for ~ outside

marriage—William Empson>

2

sex \“\ vt –ed/–ing/–es 1: to determine the sex of (an organic

being) <it is difficult to ~ the animals at a distance—E. A. Hoo-

ton>—compare autosexing 2 a: to increase the sexual appeal

or attraction of—usu. used with up <titles must be ~ed up to

attract 56 million customers—Time> b: to arouse the sexual

instincts or desires of—usu. used with up <watching you ~ing

up that bar kitten—Oakley Hall> 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 be-

havior dependent on these differences. 3. the instinct or at-

traction 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 audi-

ence. b. to increase the appeal of; to make more interesting, at-

tractive, or exciting: We've decided to sex up the movie with

some battle scenes. [1350–1400; ME < L Sexus, perh. akin to

seca¯ re 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: dormi-

Appendix C to opinion of Alito , J.

tories 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.]

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)

Appendix C to opinion of Alito, J. • 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)

Appendix C to opinion of Alito , J. • 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)

Appendix C to opinion of Alito, J. • 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 Arrange -ments; 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)

Appendix C to opinion of Alito , J. • 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) (Federa l -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 Sentenc-ing 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)

Appendix C to opinion of Alito, J. • 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)

Appendix C to opinion of Alito , J. • 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)

Appendix C to opinion of Alito, J. • 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)

Appendix C to opinion of Alito , J. • 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)

Appendix C to opinion of Alito, J. • 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) (Publ ic Transpor t ati on; Nondiscrimination) • 49 U. S. C. § 40127 (Air Commerce and Safety; Prohibitions on Discrimination) • 49 U. S. C. § 47123(a) (Air por t Improvement; Nondiscrimination) • 50 U. S. C. § 3809(b)(3) (Selective Service System) • 50 U. S. C. § 4842(a)(1)(B) (Anti-Boycott Act of 2018)

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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. 617, 631 (2018).

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

Title VII makes it unlawful for employers to discriminate because of “race, color, religion, sex, or national origin.” 42 U. S. C. § 2000e–2(a)(1).2 As enacted in 1964, Title VII did not prohibit other forms of employment discrimination, such as age discrimination, disability discrimination, or sexual orientation discrimination.

Over time, Congress has enacted new employment discrimination laws. In 1967, Congress passed and President Johnson signed the Age Discrimination in Employment Act. 81 Stat. 602. In 1973, Congress passed and President Nixon signed the Rehabilitation Act, which in substance prohibited

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

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 fred because he is gay, he is fred because he is attracted to men, even though a similarly situated woman would not be fred just because she is attracted to men. According to this theory, it follows that the man has been fred, 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 659–662.

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

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.

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.” Mc- Boyle 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. 281, 293–294 (2018) (plurality opinion) (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

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 re-sembling 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

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 655–659. 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

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 fred because of their sex. Ante , at 666. That observation is clearly correct. In common parlance, Bostock and Zarda were fred 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. 105, 114 (2019); see Henson v. Santander Consumer USA Inc., 582 U. S. 79, 84 (2017) (using a conversation between friends to demonstrate ordinary meaning); see also Wisconsin Central Ltd. v. United States, 585 U. S. 274, 278 (2018) (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

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 ex -pressly 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

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

§ 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”).

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

Presidential Executive Orders refect 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

(1989) (“inserting after `sex,' . . . `affectional or sexual orientation,' ” de-fined 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).

Federal regulations likewise refect 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

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.).

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 Protec-

crimination 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 includ-ing discrimination because of “sexual orientation”); Mich. Exec. Directive No. 2019–9 (2019) (prohibiting public-employment discrimination because of “sex,” defined as including “sexual orientation”).

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

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 identi-fies 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?

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 655–659, 666, 674–676. 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 670, 673–680. 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 pro-

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 up-dating 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.

whether the racial nondiscrimination principle applied to public schools. But that is not this case.

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,

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 90.

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 appro-