Bostock v. Clayton County, 590 U.S. 644 (2020): Title VII Read Six Ways to Three

The Supreme Court consolidated three appeals for Bostock v. Clayton County. Gerald Bostock was a child-welfare advocate fired by Clayton County, Georgia, after joining a gay recreational softball league; he sued under Title VII. Donald Zarda, a skydiving instructor in New York, was dismissed shortly after mentioning he was gay; his estate pursued the claim after his death. Aimee Stephens had worked as a funeral director in Michigan and, upon informing her employer that she would transition and present as a woman, was terminated; her claim was brought together with the others. The Eleventh Circuit had ruled against Bostock, the Second Circuit for Zarda, and the Sixth Circuit for Stephens — a three-way conflict the Court granted certiorari to resolve.

The question was narrow: does Title VII's prohibition on discrimination "because of . . . sex" encompass discrimination against an employee for being gay or transgender?

Justice Neil Gorsuch, writing for a six-Justice majority, held that it does ↗. The reasoning rests on a single logical step: if an employer fires a male employee for being attracted to men, but would not fire a female employee for the same attraction, the employer has treated the male employee differently because of his sex. The outcome changes when sex changes; therefore sex is a but-for cause of the termination. The same structure applies to a transgender employee: an employer who dismisses a person for transitioning from male to female relies on that person's sex — what sex the employer expected the employee to be — in making the decision. Because Title VII forbids any discrimination "because of" sex, both forms of discrimination fall within the statute's plain text.

Gorsuch was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The vote was six to three. Justice Samuel Alito, joined by Justice Clarence Thomas, dissented on the ground that Congress in 1964 plainly did not understand "sex" to include sexual orientation or gender identity, and that the majority's reading amounted to judicial amendment. Justice Brett Kavanaugh dissented separately, arguing the ordinary public meaning of the phrase "discriminate because of sex" — as understood when enacted — did not reach the conduct at issue.

Gorsuch's majority acknowledged the force of the historical-purpose objection directly: the drafters of Title VII's statutory text may not have anticipated every application of its terms, but unanticipated applications are not impermissible ones. The statute's operative language — "because of . . . sex" — is what the Court interpreted, not the subjective expectations of the Congress that enacted it.

The majority was explicit about its limits. The Court did not decide whether Title IX, the education statute that uses parallel "sex" language, covers the same conduct. It did not address bathroom policies, locker-room access or dress-code requirements. It declined to resolve what protections, if any, the Religious Freedom Restoration Act might afford a religious employer whose faith teaching conflicts with Title VII's requirements as construed. Gorsuch wrote that "these questions are not before us" and that future cases would need to address them in their own right.

Those caveats left significant litigation for lower courts and agencies. The Equal Employment Opportunity Commission had already taken the position, before Bostock, that Title VII covered sexual-orientation and gender-identity discrimination; the decision confirmed that reading as a matter of law. The downstream effects on agency rulemaking under Title IX and related statutes were immediate and contested, a set of disputes the Court had not resolved and explicitly declined to foreclose.

Bostock stands, as of the date of publication, as the controlling interpretation of Title VII with respect to sexual orientation and gender identity in the employment context. The three consolidated employees — Bostock, Zarda's estate, and Stephens — all prevailed.