Bostock v. Clayton County
Does Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination 'because of sex,' also prohibit discrimination against employees based on their sexual orientation or transgender status?
The Decision
6-3 decision · Opinion by Neil Gorsuch · 2020
Majority Opinion— Neil Gorsuchconcurring ↓dissent ↓
In a 6–3 decision authored by Justice Neil Gorsuch, the Supreme Court held that an employer who fires an individual merely for being homosexual or transgender violates Title VII's prohibition on discrimination 'because of sex.' The Court concluded that it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. The ruling was a landmark victory for LGBTQ rights, establishing for the first time that federal law protects gay and transgender workers from employment discrimination nationwide.
Justice Gorsuch's majority opinion relied heavily on a textualist approach — interpreting the words of the statute as written rather than speculating about what Congress may have intended or expected in 1964. The opinion explained that Title VII's key command is straightforward: an employer may not take certain actions 'because of' an individual's sex. The Court applied the well-established 'but-for' causation test: if changing the employee's sex would have changed the employer's decision, then sex was a cause of the decision, and Title VII has been violated. Applying that test, Justice Gorsuch wrote, the answer becomes clear. Consider an employer who fires a male employee for being attracted to men. If that same employer would not have fired a female employee for being attracted to men, then the employee's sex was the determining factor. The same logic applies to transgender employees: an employer who fires someone assigned male at birth for identifying as female, but would not fire someone assigned female at birth for identifying as female, has discriminated because of sex.
The majority rejected several arguments raised by the employers. It dismissed the contention that 'sex' must be limited to its 1964 meaning, pointing out that the textualist question is what the statute's words mean, not what specific applications Congress had in mind. The Court noted that Title VII has frequently been applied to situations Congress did not specifically anticipate, including sexual harassment and male-on-male harassment. The majority also rejected the argument that because an employer might fire both gay men and gay women, there is no sex discrimination — explaining that Title VII protects individuals, not groups, and each individual firing must be assessed on its own terms.
The Court also addressed concerns about religious liberty and other potential consequences of the ruling. Justice Gorsuch acknowledged that the decision might intersect with other legal doctrines, including the Religious Freedom Restoration Act and the ministerial exception recognized in the First Amendment. However, the majority emphasized that none of those issues were before the Court, and that Title VII itself contains certain exemptions for religious organizations. The opinion stated that how these doctrines interact with the Court's holding would be worked out in future cases.
The decision was notable not only for its result but for its author. Justice Gorsuch, appointed by President Trump and widely regarded as one of the Court's most committed textualists, demonstrated that a rigorous focus on statutory text could lead to a progressive outcome. He was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
Concurring Opinions
There were no separate concurring opinions in this case; all six justices in the majority joined Justice Gorsuch's opinion in full without writing separately.
Dissenting Opinions
Samuel Alitojoined by Clarence Thomas
Justice Alito wrote a lengthy and sharply worded dissent arguing that the majority had effectively rewritten Title VII under the guise of interpreting it. He contended that no ordinary English speaker in 1964 — or even in 2020 — would understand 'discrimination because of sex' to include discrimination based on sexual orientation or transgender status, and that the majority's reasoning was a 'pirate ship' sailing under a textualist flag while actually engaging in judicial legislation.
- The ordinary meaning of 'discriminate because of sex' in 1964 meant treating men and women differently because they are men or women, not discrimination based on sexual orientation or gender identity, which are distinct concepts.
- The dissent included an extensive appendix of dictionary definitions from the era showing that 'sex' uniformly meant biological differences between males and females.
- Congress's repeated failure to pass legislation adding sexual orientation and gender identity to Title VII — despite numerous attempts over several decades — was strong evidence that the existing statute did not already cover those categories.
- The majority's 'but-for' causation reasoning proved too much: taken to its logical conclusion, it could mean that sex-segregated bathrooms, dress codes, and other longstanding practices also violate Title VII, leading to sweeping consequences the majority refused to address.
- The decision usurped Congress's legislative role and denied the American people their right to decide this important policy question through their elected representatives.
Brett Kavanaugh
Justice Kavanaugh wrote a separate dissent arguing that while the majority's conclusion might be desirable as a policy matter, the ordinary meaning of the phrase 'discriminate because of sex' is different from 'discriminate because of sexual orientation.' He emphasized that courts must follow the ordinary meaning of statutory text, and that the majority had improperly used a literal decomposition of the phrase rather than reading it as a whole.
- There is a fundamental distinction between literal meaning and ordinary meaning: while it may be literally true that sexual orientation discrimination involves consideration of sex, the ordinary meaning of 'sex discrimination' as a phrase has never been understood to encompass sexual orientation discrimination.
- Kavanaugh compared the majority's reasoning to arguing that a 'vehicle accident' covers a 'bicycle accident' simply because a bicycle is a type of vehicle — technically true but not what the phrase ordinarily means.
- While acknowledging that the employees' policy arguments were 'weighty' and that the decision represented 'a momentous step' and 'important victory' for gay and lesbian Americans, Kavanaugh maintained that such a change in the law should come from Congress, not the courts.
Background & Facts
Bostock v. Clayton County actually consolidated three separate cases involving employees who claimed they were fired because of their sexual orientation or transgender status. Gerald Bostock worked as a child welfare services coordinator for Clayton County, Georgia, where he had received excellent performance reviews for over a decade. After Bostock began participating in a gay recreational softball league, the county fired him for conduct 'unbecoming' a county employee. Donald Zarda was a skydiving instructor at Altitude Express, Inc. in New York who was fired shortly after mentioning he was gay. Aimee Stephens was a funeral director at R.G. & G.R. Harris Funeral Homes in Michigan who was fired after she informed her employer that she had been diagnosed with gender dysphoria and planned to begin living and working as a woman.
Each employee sued under Title VII of the Civil Rights Act of 1964, the landmark federal law that, among other things, makes it illegal for an employer to 'fail or refuse to hire or to discharge any individual... because of such individual's race, color, religion, sex, or national origin.' The central question in all three cases was whether the word 'sex' in Title VII covered sexual orientation and transgender status, or whether it only covered discrimination based on whether someone is biologically male or female in the traditional sense.
The cases produced conflicting results in the federal appeals courts, creating what lawyers call a 'circuit split.' In Bostock's case, the U.S. Court of Appeals for the Eleventh Circuit ruled against him, holding that Title VII does not prohibit discrimination based on sexual orientation. In Zarda's case, the U.S. Court of Appeals for the Second Circuit reached the opposite conclusion, ruling that sexual orientation discrimination is a form of sex discrimination covered by Title VII. In Stephens's case, the U.S. Court of Appeals for the Sixth Circuit ruled in her favor, finding that Title VII prohibits discrimination against transgender individuals. Tragically, both Zarda and Stephens passed away before the Supreme Court issued its decision; their estates continued the litigation on their behalf.
The Supreme Court agreed to hear all three cases together precisely because the lower courts had reached contradictory conclusions. The question had enormous practical consequences: Title VII is the primary federal workplace anti-discrimination statute and applies to most employers with 15 or more employees. If the Court ruled that Title VII covered sexual orientation and transgender status, millions of LGBTQ workers across the country would gain explicit federal employment protections. If it ruled otherwise, protections would depend entirely on whether a worker's state or city had its own anti-discrimination law — and many did not.
The case attracted intense public attention and dozens of friend-of-the-court briefs from civil rights organizations, religious groups, state attorneys general, businesses, and scholars on both sides. It was widely seen as one of the most consequential civil rights cases in a generation.
The Arguments
The employees argued that firing someone for being gay or transgender is inherently a form of discrimination 'because of sex' under Title VII, because you cannot identify someone as homosexual or transgender without knowing — and taking into account — their sex. If a man is fired for being attracted to men, but a woman attracted to men would not be fired, then the employee's sex is a decisive factor in the termination.
- A straightforward application of the text of Title VII shows that sex is necessarily a 'but-for' cause of the discrimination: change the employee's sex and the outcome changes, which means the employer discriminated because of sex.
- The Supreme Court has long interpreted Title VII's protections broadly and has previously held that sex discrimination includes conduct not specifically envisioned by the 1964 Congress, such as sexual harassment and same-sex harassment.
- Title VII focuses on whether sex played a role in any particular employment decision — not on whether the employer treated men and women as groups equally — so even if an employer fires both gay men and gay women, each individual termination involves taking sex into account.
The employers argued that the term 'sex' in Title VII, as understood when the law was passed in 1964, referred only to the biological distinction between male and female, and did not encompass sexual orientation or transgender status. They contended that Congress never intended Title VII to cover these categories and that expanding the law in this way was a legislative task, not a judicial one.
- The ordinary public meaning of 'sex' in 1964 was biological sex — male or female — and no one at the time would have understood the statute to cover homosexuality or transgender identity.
- Congress has repeatedly considered and failed to pass legislation that would explicitly add sexual orientation and gender identity as protected categories under federal civil rights law, demonstrating that these protections were not already included.
- Sexual orientation and transgender status are conceptually distinct from sex: an employer could theoretically discriminate against all gay employees or all transgender employees regardless of whether they are male or female, which would not be discrimination 'because of sex' in the traditional sense.
Cited In
West Virginia v. B.P.J.
2025 Term · 24-43
Central to the debate over whether discrimination based on transgender status is inherently discrimination 'on the basis of sex,' and whether Bostock's Title VII reasoning extends to Title IX.
United States v. Skrmetti
2024 Term · 23-477
Both sides debated whether the reasoning from this Title VII case — that discriminating based on transgender status inherently involves sex — should apply in the equal protection context.