Amicus Curiae Brief — Gerald Lynn Bostock, Petitioner v. Clayton County, Georgia

Nos. 17-1618, 17-1623, 18-107

IN THE Supreme Court of the United States

GERALD LYNN BOSTOCK, Petitioner,

v.

CLAYTON COUNTY, GEORGIA, Respondent.

ALTITUDE EXPRESS, INC., et al., Petitioners,

v.

MELISSA ZARDA, as Executor of the Estate of

Donald Zarda, et al., Respondents.

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

v.

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, et al.,

Respondents.

On Writs of Certiorari to the United States Courts of Appeals

for the Eleventh, Second, and Sixth Circuits

BRIEF FOR THE STATES OF TENNESSEE, NEBRASKA,

TEXAS, ALABAMA, ALASKA, ARKANSAS, IDAHO,

LOUISIANA, MISSOURI, OHIO, OKLAHOMA, SOUTH

CAROLINA, SOUTH DAKOTA, WEST VIRGINIA, AND THE

COMMONWEALTH OF KENTUCKY BY AND THROUGH

GOVERNOR MATT BEVIN AS AMICI CURIAE

IN SUPPORT OF THE EMPLOYERS

HERBERT H. SLATERY III

Attorney General and

Reporter of Tennessee

ANDRÉE S. BLUMSTEIN

Counsel of Record

SARAH K. CAMPBELL

P.O. Box 20207

Nashville, Tennessee 37202

(615) 741-3492

andree.blumstein@ag.tn.gov

DOUGLAS J. PETERSON

Attorney General of Nebraska

DAVID BYDALEK

2115 State Capitol Building

Lincoln, Nebraska 68509

KEN PAXTON

Attorney General of Texas

KYLE D. HAWKINS

P.O. Box 12548 (MC 059)

Austin, Texas 78711

[Additional Amici listed on signature pages]

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . ii

INTERESTS OF AMICI CURIAE . . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . 2

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

I.

Title VII Prohibits Discrimination Because of

Sex, not Sexual Orientation, Gender Identity,

or Transgender Status . . . . . . . . . . . . . . . . . . 6

II.

Discrimination Based on Sexual Orientation

or Gender Identity Is Not Sex Stereotyping

and Is Not Analogous to Anti-miscegenation

Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

III.

The Constitutional-Doubt Canon Requires

the Court to Read “Sex” Narrowly . . . . . . . . 25

IV.

Construing Title VII to Prohibit

Discrimination Based on Sexual Orientation

or Gender Identity Would Trespass on

Congress’s Policymaking Role. . . . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

ii

TABLE OF AUTHORITIES

CASES

Angle v. Veneman,

EEOC Doc. 01A32644, 2004 WL 764265

(April 5, 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Asgrow Seed Co. v. Winterboer,

513 U.S. 179 (1995). . . . . . . . . . . . . . . . . . . . . . . . 6

Barrett v. Whirlpool Corp.,

556 F.3d 502 (6th Cir. 2009). . . . . . . . . . . . . . . . 24

Bibby v. Phila. Coca Cola Bottling Co.,

260 F.3d 257 (3d Cir. 2001) . . . . . . . . . . . . . . . . . 8

Blum v. Gulf Oil Corp.,

597 F.2d 936 (5th Cir. 1979). . . . . . . . . . . . . . . . . 9

Bd. of Trustees of Univ. of Ala. v. Garrett,

531 U.S. 356 (2001). . . . . . . . . . . . . . . . . . . . . . . 29

City of Boerne v. Flores,

521 U.S. 507 (1997). . . . . . . . . . . . . . . 4, 26, 27, 28

Clark v. Martinez,

543 U.S. 371 (2005). . . . . . . . . . . . . . 28, 29, 30, 31

DeSantis v. Pacific Tel. & Tel. Co.,

608 F.2d 327 (9th Cir. 1979). . . . . . . . . . . . . . . 8, 9

Etsitty v. Utah Transit Auth.,

502 F.3d 1215 (10th Cir. 2007). . . . . . . . . . . . . . . 8

Evans v. Ga. Reg’l Hosp.,

850 F.3d 1248 (11th Cir. 2017). . . . . . . . . . . . . . . 8

iii

Fitzpatrick v. Bitzer,

427 U.S. 445 (1976). . . . . . . . . . . . . . . . . . . . . 1, 26

Fla. Prepaid Postsecondary Educ. Expense

Bd. v. Coll. Savings Bank,

527 U.S. 627 (1999). . . . . . . . . . . . . . . . . 27, 28, 31

Hamm v. Weyauwega Milk Prods., Inc.,

332 F.3d 1058 (7th Cir. 2003). . . . . . . . . . . . . . . . 8

Harris v. McRae,

448 U.S. 297 (1980). . . . . . . . . . . . . . . . . . . . . . . 34

Higgins v. New Balance Athletic Shoe, Inc.,

194 F.3d 252 (1st Cir. 1999) . . . . . . . . . . . . . . 8, 10

Hively v. Ivy Tech Cmty. Coll. of Ind.,

853 F.3d 339 (7th Cir. 2017) (en banc). . . . passim

Holcomb v. Iona Coll.,

521 F.3d 130 (2d. Cir. 2008) . . . . . . . . . . . . . . . . 24

Holloway v. Arthur Anderson & Co.,

566 F.2d 659 (9th Cir. 1977). . . . . . . . . . . . . . . . . 9

I.N.S. v. Chadha,

462 U.S. 919 (1983). . . . . . . . . . . . . . . . . . . . . . . 36

Kimel v. Fla. Bd. of Regents,

528 U.S. 62 (2000). . . . . . . . . . . . . . . . . . . . passim

Loran v. O’Neill,

EEOC Doc. 01A13538, 2001 WL 966123

(Aug. 17, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

L.A. Dep’t of Water & Power v. Manhart,

435 U.S. 702 (1978). . . . . . . . . . . . . . . . . . . . . . . 20

iv

Loving v. United States,

517 U.S. 748 (1996). . . . . . . . . . . . . . . . . . . . . . . 32

Loving v. Virginia,

388 U.S. 1 (1967). . . . . . . . . . . . . . . . . . . 19, 23, 24

Maher v. Roe,

432 U.S. 464 (1977). . . . . . . . . . . . . . . . . . . . . . . 34

Medina v. Income Support Div.,

413 F.3d 1131 (10th Cir. 2005). . . . . . . . . . . . . . . 8'

Nichols v. Azteca Restaurant Enterprises, Inc.,

256 F.3d 864 (9th Cir. 2001). . . . . . . . . . . . . . . . . 9

Oncale v. Sundowner Offshore Servs., Inc.,

523 U.S. 75 (1998). . . . . . . . . . . . . . . . . . 10, 11, 12

Phillips v. Martin Marietta Corp.,

400 U.S. 542 (1971). . . . . . . . . . . . . . . . . . . . 21, 22

Price Waterhouse v. Hopkins,

490 U.S. 228 (1989). . . . . . . . . . . . . . . . . . . passim

Robinson v. Shell Oil Co.,

519 U.S. 337 (1997). . . . . . . . . . . . . . . . . . . . . . . . 6

Rodriguez v. United States,

480 U.S. 522 (1987). . . . . . . . . . . . . . . . . . . . . . . 32

SAS Inst. Inc. v. Iancu,

138 S. Ct. 1348 (2018). . . . . . . . . . . . . . . . . . 32, 36

Simonton v. Runyon,

232 F.3d 33 (2d Cir. 2000) . . . . . . . . . . . . . . . 8, 10

Smith v. United States,

508 U.S. 223 (1993). . . . . . . . . . . . . . . . . . . . . . . . 6

v

Sommers v. Budget Mktg., Inc.,

667 F.2d 748 (8th Cir. 1982). . . . . . . . . . . . . . . . . 8

Sullivan v. Stroop,

496 U.S. 478 (1990). . . . . . . . . . . . . . . . . . . 6, 7, 17

Ulane v. E. Airlines, Inc.,

742 F.2d 1081 (7th Cir. 1984). . . . . . . . . . . . . . . . 8

United States ex rel. Att’y Gen. v. Del. &

Hudson Co., 213 U.S. 366 (1909) . . . . . . . . . . . . 28

United States v. Georgia,

546 U.S. 151 (2006). . . . . . . . . . . . . . . . . . . . 30, 31

United States v. Virginia,

518 U.S. 515 (1996). . . . . . . . . . . . . . . . . . . . . . . 30

United States v. Windsor,

570 U.S. 744 (2013). . . . . . . . . . . . . . . . . . . . . . . 30

Vickers v. Fairfield Med. Ctr.,

453 F.3d 757 (6th Cir. 2006). . . . . . . . . . . . . . . . . 8

Williamson v. A.G. Edwards & Sons, Inc.,

876 F.2d 69 (8th Cir. 1989). . . . . . . . . . . . . . . . . . 8

Wittmer v. Phillips 66 Co.,

915 F.3d 328 (5th Cir. 2019). . . . . . 8, 9, 18, 23, 25

Wrightson v. Pizza Hut of Am., Inc.,

99 F.3d 138 (4th Cir. 1996). . . . . . . . . . . . . . . . . . 8

Zarda v. Altitude Express, Inc.,

883 F.3d 100 (2d Cir. 2018) . . . . . . . . . . . . . . 8, 24

STATUTES

18 U.S.C. § 249(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 17

vi

20 U.S.C. § 1681(a). . . . . . . . . . . . . . . . . . . . . . . 16, 33

20 U.S.C. § 1681(a)(3) . . . . . . . . . . . . . . . . . . . . . . . 33

20 U.S.C. § 1681(a)(6)(B) . . . . . . . . . . . . . . . . . . . . . 33

20 U.S.C. § 1686 . . . . . . . . . . . . . . . . . . . . . . 17, 33, 34

34 U.S.C. § 12291(b)(13)(A) . . . . . . . . . . . . . . . . . . . 17

42 U.S.C. § 2000e-1(a) . . . . . . . . . . . . . . . . . . . . . . . 33

42 U.S.C. § 2000e-2(a) . . . . . . . . . . . . . . . . . . . . . . 3, 6

42 U.S.C. § 2000e-2(e). . . . . . . . . . . . . . . . . . . . . . . . 33

Utah Code Ann. § 34A-5-106(1)(a)(1)(I)-(J). . . . . . . 34

Utah Code Ann. § 34A-5-109-112 . . . . . . . . . . . . . . 34

Pregnancy Discrimination Act of 1978, Pub. L. No.

95- 555, 92 Stat. 2076 (1978) . . . . . . . . . . . . . . . 16

OTHER AUTHORITIES

American Heritage Dictionary (1976) . . . . . . . . . . . . 7

Charles Black, The Lawfulness of the Segregation

Decisions, 69 Yale L.J. 421 (1960) . . . . . . . . . . . 24

Bradford R. Clark, Separation of Powers as a

Safeguard of Federalism, 79 Tex. L. Rev. 1321

(2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

117 Cong. Rec. 30406 (1971) . . . . . . . . . . . . . . . . . . 17

118 Cong. Rec. 5807 (1972) . . . . . . . . . . . . . . . . . . . 17

vii

Richard H. Fallon, Jr., Fact and Fiction about

Facial Challenges, 99 Cal. L. Rev. 915

(2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Federal Government on Autopilot: Delegation of

Regulatory Authority to an Unaccountable

Bureaucracy: Hearing Before the H. Comm. on

the Judiciary, 114th Cong. 13 (2016) (statement

of Gail Heriot, Member, U.S. Comm’n on Civil

Rights) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Gender, Lexico, https://www.lexico.com/en/defintion/

gender . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

David Haig, The Inexorable Rise of Gender and the

Decline of Sex: Social Change in Academic

Titles, 1945–2001, Archives of Sexual Behavior,

Apr. 2004 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13

H.R. 166, 94th Cong. (1975). . . . . . . . . . . . . . . . . . . 15

H.R. 1397, 112th Cong. (2011). . . . . . . . . . . . . . . . . 16

H.R. 1755, 113th Cong. (2013). . . . . . . . . . . . . . . . . 16

H.R. 2015, 110th Cong. (2007). . . . . . . . . . . . . . . . . 16

H.R. 2074, 96th Cong. (1979). . . . . . . . . . . . . . . . . . 15

H.R. 3017, 111th Cong. (2009). . . . . . . . . . . . . . . . . 16

H.R. 4636, 103rd Cong. (1994). . . . . . . . . . . . . . . . . 15

H.R. 14752, 93rd Cong. (1974). . . . . . . . . . . . . . . . . 15

Joanne Meyerowitz, A History of “Gender,” 113 The

American Historical Review 1346 (2008). . . . . . 12

viii

John Money et al., Imprinting and the

Establishment of Gender Role, 77 A.M.A.

Archives of Neurology & Psychiatry (1957). . . . 12

Oxford English Dictionary (1961) . . . . . . . . . 7, 13, 14

Virginia Prince, Change of Sex or Gender, 10

Transvestia 53 (1969) . . . . . . . . . . . . . . . . . . . . . 13

Sari L. Reisner et al., “Counting” Transgender and

Gender-Nonconforming Adults in Health

Research, Transgender Stud. Q., Feb. 2015. . . . 14

Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts (2012) . . . . . . 28

S. 2081, 96th Cong. (1979) . . . . . . . . . . . . . . . . . . . . 15

Sex, Lexico, https://www.lexico.com/en/definition/

sex . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Robert J. Stoller, Sex and Gender: On the

Development of Masculinity and Femininity

(1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Ethel Tobach, Some Evolutionary Aspects of Human

Gender, 41 Am. J. of Orthopsychiatry 710

(1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Webster’s Third New International Dictionary

(1971). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Webster’s New World College Dictionary

(5th ed. 2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ix

Herbert Wechsler, The Political Safeguards of

Federalism: The Role of the States in the

Composition and Selection of the National

Government, 54 Colum. L. Rev. 543 (1954) . . . . 35

1

INTERESTS OF AMICI CURIAE

Amici curiae are the States of Tennessee, Nebraska,

Texas, Alabama, Alaska, Arkansas, Idaho, Louisiana,

Missouri, Ohio, Oklahoma, South Carolina, South

Dakota, West Virginia, and the Commonwealth of

Kentucky by and through Governor Matt Bevin.1

Congress amended Title VII in 1972 pursuant to its

authority under section 5 of the Fourteenth

Amendment to make its prohibitions applicable to

States. See Fitzpatrick v. Bitzer, 427 U.S. 445, 447

(1976). As employers subject to Title VII, amici States

have a strong interest in ensuring that this Court

interprets the statute according to its plain language

and in a manner that does not exceed Congress’s

authority under section 5 to enforce the requirements

of the Fourteenth Amendment. See Kimel v. Fla. Bd.

of Regents, 528 U.S. 62, 88 (2000) (Congress may not

“substantively redefine the States’ legal obligations”).

1

No counsel for any party authored this brief, in whole or in part,

and no person or entity other than amici States contributed

monetarily to its preparation or submission.

2

Amici States also have a strong interest in

preserving the respective and separate roles of

Congress and the federal judiciary. The Constitution

assigns policymaking authority to Congress for good

reason: Congress is the branch of government best

suited to make sensitive policy choices that require

consideration of competing interests. When a federal

court rewrites a federal statute rather than deferring

to Congress, it deprives the States of the opportunity to

weigh in on that question through the political process.

It also impedes state-level efforts to develop solutions

in the absence of congressional action.

The plain language of Title VII, which reflects a

congressional policy choice, does not prohibit

discrimination based on sexual orientation or gender

identity. Amici States file this brief to urge the Court

to leave to Congress and to the political process any

decision to make a different policy choice.

SUMMARY OF THE ARGUMENT

The question presented in these cases is not

whether federal law should prohibit discrimination

based on sexual orientation or gender identity. That is

a question on which there is a wide divergence of

opinion, and one on which this brief takes no position.

The question instead is much simpler: Does Title VII,

as enacted by Congress in 1964 and as subsequently

amended, prohibit those forms of discrimination?

Application of traditional tools of statutory

construction yields an easy answer: no. Title VII

prohibits only “sex” discrimination, and the plain

meaning of “sex” is biological status as male or female,

3

not sexual orientation or gender identity. Were there

any doubt about this, the canon of constitutional doubt

would require this interpretation because a broader

reading could render Congress’s abrogation of the

States’ sovereign immunity invalid.

To the extent these cases involve a normative

question, it is the important question of which branch

of government—the judiciary or Congress—should

make policy. The Constitution provides an easy

answer to that question: Congress. Sensitive policy

decisions, such as whether to extend federal

antidiscrimination laws to prohibit discrimination

based on sexual orientation or gender identity, are for

Congress, not the courts. And when the courts usurp

Congress’s policymaking authority, they both

circumvent constitutional strictures designed to protect

the States’ interests and prematurely halt legislative

efforts at the state level.

1. Title VII prohibits employers from

discriminating against an individual “because of such

individual’s . . . sex.” 42 U.S.C. § 2000e-2(a). The plain

and unambiguous meaning of “sex” is biological status

as male or female.

That was the common

understanding of “sex” at the time Congress enacted

Title VII, as evidenced by dictionary definitions of that

word and a decades-long consensus among lower courts

that Title VII does not prohibit discrimination based on

sexual orientation or gender identity. Far from being

synonymous with “sex,” the terms “sexual orientation”

and “gender identity” have long been used in contrast

with “sex” to mean something distinct. And Congress’s

legislative efforts since 1964 confirm that

4

discrimination based on “sex” does not include

discrimination based on sexual orientation or gender

identity.

2. Alternative theories for construing Title VII to

prohibit discrimination based on sexual orientation or

gender identity are fruitless. The plurality opinion in

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989),

merely clarified that evidence of sex stereotyping can

be relevant to a claim of sex discrimination. But

discrimination based on sexual orientation or gender

identity does not involve a sex-specific stereotype—i.e.,

one that applies specifically to males or females. So

Price Waterhouse provides no support for reading Title

VII to prohibit those forms of discrimination. Nor is

discrimination based on sexual orientation analogous

to anti-miscegenation laws. The latter are prohibited

because they are inherently racist. Discrimination

based on sexual orientation, by contrast, is not

inherently sexist.

3. If there were any doubt about the correct

interpretation of Title VII, the constitutional-doubt

canon would require the Court to adopt the narrower

interpretation. Congress’s application of Title VII to

the States relied on its section 5 authority to enforce

the Fourteenth Amendment. But Congress may

abrogate state sovereign immunity only to remedy

violations of the Constitution by the States; it may not

substantively redefine a State’s constitutional

obligations. Thus, there “must be a congruence and

proportionality between the injury to be prevented or

remedied and the means adopted to that end.” City of

Boerne v. Flores, 521 U.S. 507, 520 (1997). A serious

5

constitutional question exists as to whether Congress

could validly abrogate state sovereign immunity for

claims of discrimination based on sexual orientation or

gender identity, because Congress never identified any

pattern of such discrimination by the States, much less

any pattern that amounted to a constitutional

violation.

To avoid that difficult constitutional

question, the Court should reject the invitation to read

Title VII broadly.

4. The Constitution assigns to Congress, not the

courts, the job of making policy. Because Congress is

the branch of government that is most responsive to

the people, it is the best positioned to weigh competing

values and strike the appropriate balance among them.

Federal antidiscrimination laws reflect just such a

balance. And the question whether to extend those

laws to prohibit discrimination based on sexual

orientation or gender identity requires additional

sensitive decisions, especially in the Title IX context.

Congress should make those choices, not this Court.

Leaving the choice to Congress better respects state

prerogatives, both by preserving Article I requirements

that are designed to protect state interests and by

allowing the States to continue developing solutions

until Congress acts.

6

ARGUMENT

I.

Title VII Prohibits Discrimination Because

of Sex, not Sexual Orientation, Gender

Identity, or Transgender Status.

Since 1964, Title VII has prohibited employers from

discriminating against any individual with respect to

employment “because of such individual’s . . . sex.” 42

U.S.C. § 2000e-2(a). The word “sex” is not defined in

the statute. Thus, the question before the Court is one

of statutory interpretation regarding what it means to

discriminate “because of . . . sex.” The plain and

unambiguous meaning of “sex” in Title VII is biological

status as male or female. That meaning is distinct

from “sexual orientation,” “gender identity,” or

“transgender status,” as Congress’s actions since its

enactment of Title VII confirm.

A. “When a word is not defined by statute, [this

Court] normally construe[s] it in accord with its

ordinary or natural meaning.” Smith v. United States,

508 U.S. 223, 228 (1993); see also Asgrow Seed Co. v.

Winterboer, 513 U.S. 179, 187 (1995) (“When terms

used in a statute are undefined, we give them their

ordinary meaning.”).

Thus, the “first step in

interpreting a statute is to determine whether the

language at issue has a plain and unambiguous

meaning with regard to the particular dispute in the

case.” Robinson v. Shell Oil Co., 519 U.S. 337, 340

(1997).

If, as here, the statute is clear and

unambiguous, courts must give effect to the

unambiguously expressed intent of Congress. Sullivan

v. Stroop, 496 U.S. 478, 482 (1990).

7

1. Courts, including this Court, traditionally look to

general reference dictionaries to ascertain the common

meaning of statutory language. See, e.g., Stroop, 496

U.S. at 482-83. When Congress enacted Title VII,

virtually every dictionary definition of “sex” referred to

physiological distinctions between females and males,

particularly with respect to their reproductive

functions. See, e.g., American Heritage Dictionary

1187 (1976) (“The property or quality by which

organisms are classified according to their reproductive

functions.”); Webster’s Third New International

Dictionary 2081 (1971) (“[T]he 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 . . . .”); 9 Oxford English Dictionary 578 (1961)

(“The sum of those differences in the structure and

function of the reproductive organs on the ground of

which beings are distinguished as male and female,

and of the other physiological differences consequent on

these.”). Even today, “sex” continues to refer to

biological differences between females and males. See,

e.g., Webster’s New World College Dictionary 1331 (5th

ed. 2014) (“either of the two divisions, male or female,

into which persons, animals, or plants are divided,

with reference to their reproductive functions”).

The uniform definition of “sex” to mean biologically

male or female establishes that both Congress and the

public would have understood “sex” in that manner

when it was included in Title VII. As Judge Sykes

noted in her dissent in Hively v. Ivy Tech Community

College of Indiana, 853 F.3d 339 (7th Cir. 2017) (en

8

banc), “[i]n common, ordinary usage in 1964—and now,

for that matter—the word ‘sex’ means biologically male

or female.” Id. at 362 (emphasis in original); see also,

e.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 137

(2d Cir. 2018) (en banc) (Lynch, J., dissenting) (“Of

course, today’s majority does not contend that Congress

literally prohibited sexual orientation discrimination in

1964 . . . . [A]ny such contention would be

indefensible.”); Wittmer v. Phillips 66 Co., 915 F.3d

328, 338 (5th Cir. 2019) (Ho, J., concurring) (“The

traditional interpretation of Title VII is . . . the only

reading that comports with common usage.”).

2. For decades, there was a consensus among

lower courts that the plain language of Title VII does

not prohibit discrimination based on sexual orientation

or gender identity. See, e.g., Evans v. Ga. Reg’l Hosp.,

850 F.3d 1248, 1255-56 (11th Cir. 2017), rh’g en banc

denied (July 6, 2017); Etsitty v. Utah Transit Auth., 502

F.3d 1215, 1220-21 (10th Cir. 2007); Vickers v. Fairfield

Med. Ctr., 453 F.3d 757, 762-63 (6th Cir. 2006); Medina

v. Income Support Div., 413 F.3d 1131, 1135 (10th Cir.

2005); Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d

1058, 1062-65 (7th Cir. 2003), overruled by Hively,

supra; Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d

257, 261 (3d Cir. 2001); Simonton v. Runyon, 232 F.3d

33, 36 (2d Cir. 2000), overruled by Zarda, supra;

Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d

252, 259 (1st Cir. 1999); Wrightson v. Pizza Hut of Am.,

Inc., 99 F.3d 138, 143 (4th Cir. 1996); Williamson v.

A.G. Edwards & Sons, Inc., 876 F.2d 69, 70 (8th Cir.

1989) (per curiam); Ulane v. E. Airlines, Inc., 742 F.2d

1081, 1084 (7th Cir. 1984); Sommers v. Budget Mktg.,

Inc., 667 F.2d 748, 749-50 (8th Cir. 1982); DeSantis v.

9

Pacific Tel. & Tel. Co., 608 F.2d 327, 329-30 (9th Cir.

1979), abrogated in part on other grounds by Nichols v.

Azteca Restaurant Enterprises, Inc., 256 F.3d 864, 87475 (9th Cir. 2001); Blum v. Gulf Oil Corp., 597 F.2d

936, 938 (5th Cir. 1979); Holloway v. Arthur Anderson

& Co., 566 F.2d 659, 662-63 (9th Cir. 1977). Until

recently, moreover, the EEOC agreed with that

consensus. See e.g., Angle v. Veneman, EEOC Doc.

01A32644, 2004 WL 764265, at *2 (April 5, 2004)

(noting that the EEOC had “consistently held that

discrimination based on sexual orientation is not

actionable under Title VII”); Loran v. O’Neill, EEOC

Doc. 01A13538, 2001 WL 966123, at *1 (Aug. 17, 2001)

(“The Commission has repeatedly found that

transsexualism is not a protected basis under Title

VII . . . .”).

“It was not until 40 years after Congress enacted

Title VII that a federal court of appeals first construed

it to prohibit transgender discrimination—and 53 years

after enactment that a federal court of appeals first

construed it to prohibit sexual orientation

discrimination. Wittmer, 915 F.3d at 336 (Ho, J.,

concurring) (internal citation omitted). “If the first

forty years of uniform circuit precedent nationwide

somehow got the original understanding of Title VII

wrong, no one has explained how.” Id; see also Hively,

853 F.3d at 362 (Sykes, J., dissenting) (“Our longstanding interpretation of Title VII is not an outlier.

From the statute’s inception to the present day, the

appellate courts have unanimously and repeatedly read

the statute the same way . . . .). The “unanimity among

the courts of appeals strongly suggests” that the “longsettled interpretation” of Title VII to mean

10

discrimination based on one’s biological status as male

or female is correct. Hively, 853 F.3d at 361 (Sykes, J.,

dissenting.).

This Court, too, has long interpreted Title VII to

prohibit discrimination involving “disparate treatment

of men and women.” Price Waterhouse v. Hopkins, 490

U.S. 228, 251 (1989) (plurality opinion) (internal

quotation marks omitted) (emphasis added); see also

Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,

80 (1998) (explaining that employers may not cause

“members of one sex [to be] exposed to disadvantageous

terms or conditions of employment to which members

of the other sex are not exposed” (internal quotation

marks omitted)). That interpretation comports with a

biology-based understanding of the word “sex.”

3. Because the cases before the Court present

questions of statutory interpretation and concern the

availability of a specific civil remedy under Title VII, it

is the original public meaning of “sex” in Title VII that

must guide the Court’s analysis, not personal views or

public opinion about whether discrimination based on

sexual orientation or gender identity should be

prohibited. See Hively, 853 F.3d at 362 (Sykes, J.,

dissenting) (“But the analysis must begin with the

statutory text; it largely ends there too.”); Simonton,

232 F.3d at 35 (“[W]e are called upon here to construe

a statute . . . not to make a moral judgment.” (quoting

Higgins, 194 F.3d at 259)).

Those pressing for a broader interpretation of “sex”

to include sexual orientation and gender identity

frequently rely on this Court’s decision in Oncale,

which held that same-sex sexual harassment may be

11

actionable under Title VII if it otherwise “meets the

statutory requirements.” 523 U.S. at 80. But Oncale

provides no support for their position.

Oncale

reiterated that “[t]he critical issue, [as] Title VII’s text

indicates, is whether members of one sex are exposed

to disadvantageous terms or conditions of employment

to which members of the other sex are not exposed.”

523 U.S. at 80 (internal quotation marks omitted).

Since “nothing in Title VII necessarily bars a claim of

discrimination ‘because of . . . sex’ merely because the

plaintiff and the defendant . . . are of the same sex,” the

Court saw no reason to categorically exclude those

claims from Title VII’s coverage. Id. at 79. “[I]n

authorizing claims of same-sex harassment as a

theoretical matter,” however, “the Court carefully

tethered all sexual-harassment claims to the statutory

requirement that the plaintiff prove discrimination

‘because of sex.’” Hively, 853 F.3d at 372 (Sykes, J.,

dissenting) (emphasis in original).

“Nothing in Oncale eroded the distinction between

sex discrimination” and discrimination based on sexual

orientation or gender identity or “opened the door to a

new interpretation of Title VII.” Id. While it is

theoretically possible for a male plaintiff to prove that

a male employer is harassing him “because of . . . sex,”

a homosexual plaintiff facing discrimination because of

sexual orientation cannot satisfy that statutory

requirement. Nor can a transgender plaintiff facing

discrimination because of gender identity. For the

latter two plaintiffs, the answer to the “critical”

question whether “members of one sex are exposed to

disadvantageous terms or conditions of employment to

which members of the other sex are not exposed,”

12

Oncale, 523 U.S. at 80 (internal quotation marks

omitted), is no.

That answer confirms that

discrimination based on sexual orientation or gender

identity does not violate Title VII.

B. The Sixth Circuit intermingled the terms

“gender identity,” “transgender,” and “transitioning

status,” with “sex.” Likewise, the Second Circuit held

that “sexual orientation” discrimination is a subset of

“sex” discrimination.

But the terms “sexual

orientation” and “gender identity” are not synonymous

with “sex”; rather, they have consistently been used in

contrast with the word “sex.”

In the 1950s, John Money, a psychologist at Johns

Hopkins University, introduced “gender”—previously

a grammatical term only—into scientific discourse.

Joanne Meyerowitz, A History of “Gender,” 113 The

American Historical Review 1346, 1354 (2008). Money

believed that an individual’s “gender role” was not

determined at birth but was acquired early in a child’s

development much in the same fashion that a child

learns a language. John Money et al., Imprinting and

the Establishment of Gender Role, 77 A.M.A. Archives

of Neurology & Psychiatry 333-36 (1957).

Robert Stoller, the UCLA psychoanalyst who first

used the term “gender identity,” was another early

adopter of the terminology of “gender.” He wrote in

1968 that gender had “psychological or cultural rather

than biological connotations.” Robert J. Stoller, Sex

and Gender: On the Development of Masculinity and

Femininity 9 (1968). To him, “sex was biological but

gender was social.” David Haig, The Inexorable Rise of

Gender and the Decline of Sex: Social Change in

13

Academic Titles, 1945–2001, Archives of Sexual

Behavior, Apr. 2004, at 93.

Early users of “gender identity”—a term first

introduced around 1963—distinguished it from “sex” on

the ground that “gender” is “primarily culturally

determined.” Haig, supra, at 93 (internal quotation

marks omitted). “Biological sex,” they contended, is not

the same as “societally assigned gender.” Id. (quoting

Ethel Tobach, Some Evolutionary Aspects of Human

Gender, 41 Am. J. of Orthopsychiatry 710 (1971)). On

this view, while “sex” cannot be changed, “gender” is

more fluid.

In 1969, Virginia Prince, who is credited with

coining the term “transgender,” echoed the view that

“sex” and “gender” are distinct: “I, at least, know the

difference between sex and gender and have simply

elected to change the latter and not the former. . . . I

should be termed ‘transgenderal.’”

Federal

Government on Autopilot: Delegation of Regulatory

Authority to an Unaccountable Bureaucracy: Hearing

Before the H. Comm. on the Judiciary, 114th Cong. 13

(2016) (statement of Gail Heriot, Member, U.S.

Comm’n on Civil Rights) (quoting Virginia Prince,

Change of Sex or Gender, 10 Transvestia 53, 60 (1969)).

And in the 1970s, other feminist scholars similarly

defined “sex as biological and gender as psychological

and cultural.” Haig, supra, at 93.

This differentiation of “sex” from “gender” has

continued to this day. For example, Oxford defines

“sex” in biological terms as “[e]ither of the two main

categories (male and female) into which humans and

most other living things are divided on the basis of

14

their reproductive functions.” Sex, Lexico,

https://www.lexico.com/en/definition/sex. But “gender”

means “[e]ither of the two sexes . . . when considered

with reference to social and cultural differences rather

than biological ones.” Gender, Lexico,

https://www.lexico.com/en/defintion/gender; see also

Sari L. Reisner et al., “Counting” Transgender and

Gender-Nonconforming Adults in Health Research,

Transgender Stud. Q., Feb. 2015, at 37 (“Sex refers to

biological differences among females and males, such

as genetics, hormones, secondary sex characteristics,

and anatomy. . . . Gender typically refers to cultural

meanings ascribed to or associated with patterns of

behavior, experience, and personality that are labeled

as feminine or masculine. (emphasis in original)).

There is thus no ambiguity in Title VII’s use of the

term “sex.” Sex is, and has always been, understood as

distinct from sexual orientation and gender identity.

Indeed, these two concepts can even be defined without

reference to one another; for example, describing

someone as homosexual or heterosexual tells the

listener nothing about whether that person is male or

female.

It follows that, at the time Congress enacted Title

VII, “sex,” “sexual orientation,” and “gender identity”

had different meanings. As a result, the word “sex” in

Title VII cannot be fairly construed to mean or include

“sexual orientation” or “gender identity.” The Second

Circuit and the Sixth Circuit erroneously conflated

these terms to redefine and broaden Title VII beyond

its congressionally intended scope.

15

C.

Legislative efforts postdating Title VII’s

enactment in 1964 confirm that Title VII does not

prohibit discrimination based on sexual orientation or

gender identity. Those efforts include failed attempts

to add the terms “sexual orientation” and “gender

identity” to Title VII and to enact new legislation

prohibiting those forms of discrimination, as well as

the successful enactment of other legislation

specifically including the terms “sexual orientation”

and “gender identity.”

1. Members of Congress introduced numerous bills

during the 1970’s to amend Title VII to prohibit

discrimination based on sexual orientation. In 1974,

Representative Bella Abzug proposed to amend the

Civil Rights Act to prohibit a new category of

discrimination based on “sexual orientation.” H.R.

14752, 93rd Cong. (1974).

Similar bills were

considered in the years that followed. See, e.g., H.R.

166, 94th Cong. (1975); H.R. 2074, 96th Cong. (1979);

S. 2081, 96th Cong. (1979). Had Title VII’s prohibition

on discrimination because of “sex” already been

understood to prohibit those forms of discrimination,

those efforts of course would have been unnecessary.

In 1994, lawmakers introduced the Employment

Non-Discrimination Act (“ENDA”) which, like

Representative Abzug’s earlier effort, reflected the

understanding that Title VII’s prohibition of “sex”

discrimination related only to one’s biological status as

male or female. See H.R. 4636, 103rd Cong. (1994). In

2007, 2009, 2011, and 2013, lawmakers proposed a

broader version of ENDA to codify protections for

“sexual orientation” and “gender identity” in the

16

employment context. See H.R. 2015, 110th Cong.

(2007); H.R. 3017, 111th Cong. (2009); H.R. 1397,

112th Cong. (2011); H.R. 1755, 113th Cong. (2013).

Each of these failed attempts confirms Congress’s

enduring understanding that “sex” means biologically

male or female.

The one instance when Congress amended Title VII

to clarify the meaning of discrimination “because of . . .

sex” reinforces this understanding. In 1978, Congress

amended Title VII to provide that discrimination

“because of sex” includes discrimination “on the basis

of pregnancy, childbirth, or related medical conditions”

and to ensure that “women affected by pregnancy,

childbirth, or related medical conditions shall be

treated the same for all employment-related purposes”

as other persons. Pregnancy Discrimination Act of

1978, Pub. L. No. 95- 555, § (k), 92 Stat. 2076, 2076

(1978). Congress’s prohibition of pregnancy

discrimination, which stems from the biological

differences between men and women, is further

evidence that it understood “sex” to mean biologically

male or female.

Congress’s enactment of Title IX eight years after

the passage of Title VII also sheds light on the meaning

of “sex.” Title IX prohibits discrimination on the basis

of “sex” in federally funded education programs.

20 U.S.C. § 1681(a). The debate over Title IX centered

on invidious “sex” discrimination and ensuring women

equal access to education. Lawmakers used the term

“sex discrimination” repeatedly (not “gender identity”

or “sexual orientation” discrimination), as referring to

the biological distinction between men and women. See

17

117 Cong. Rec. 30406 (1971); 118 Cong. Rec. 5807

(1972). Absent from Title IX’s statutory text or

legislative history is any mention of “sexual

orientation” or “gender identity.”

In fact, Title IX includes a provision specifying that

the prohibition on sex discrimination should not be

construed “to prohibit any educational institution

receiving funds under this Act, from maintaining

separate living facilities for the different sexes.”

20 U.S.C. § 1686 (emphasis added). Congress’s

inclusion of the word “different” before “sexes” signals

that it was referring to the two biological sexes. And

because “identical words used in different parts of the

same act are intended to have the same meaning,”

Stroop, 496 U.S. at 484 (internal quotation marks

omitted), this confirms that Title IX’s prohibition on

the basis of “sex,” just like Title VII’s similar

prohibition, means discrimination based on biological

status as male or female.

2. Not only has Congress declined to prohibit sexual

orientation and gender identity discrimination in the

Title VII context, it has affirmatively included those

categories in other antidiscrimination statutes. The

2013 reauthorization of the Violence Against Women

Act, for instance, prohibits recipients of certain federal

grants from invidiously discriminating based on “sex,”

as well as “gender identity” and “sexual orientation.”

34 U.S.C. § 12291(b)(13)(A). And in 2010, the

President signed hate crimes legislation that applies to

crimes motivated by, inter alia, “sexual orientation,”

“gender,” and “gender identity.” 18 U.S.C. § 249(a)(2).

Congress’s express inclusion of “sexual orientation” and

18

“gender identity” in other statutes is further evidence

that “sex” means biologically male or female.2

* * *

In sum, Congress knew what it was—and was

not—doing when it enacted Title VII’s prohibition

against discrimination based on sex. Until the Seventh

Circuit’s decision in Hively, the Courts of Appeals had

uniformly held that discrimination based on “sex”

meant only discrimination based on whether an

employee is biologically male or female.

This

understanding was shared by Congress and ratified

through its decades of acquiescence. Congress has

declined to expand Title VII to include sexual

orientation and gender identity discrimination. That

should be the end of the inquiry. See Wittmer, 915 F.3d

at 338 (Ho, J., concurring) (“It would defy common

sense to imagine that lawmakers labored to assemble

a majority coalition to eradicate sexual orientation and

transgender discrimination from the workplace—only

2

State and local antidiscrimination laws likewise expressly include

“sexual orientation” and “gender identity” as prohibited categories

of discrimination. See Hively, 853 F.3d at 364 (Sykes, J.,

dissenting) (“State and local antidiscrimination laws likewise

distinguish between sex discrimination and sexual-orientation

discrimination by listing them separately as distinct forms of

unlawful discrimination.”); Amicus Brief for States of Illinois et al.

as Amici Curiae in Support of the Employees at 14 (“Twenty-one

States and the District of Columbia have expressly prohibited

discrimination on the basis of sexual orientation and transgender

status by statute or regulation.” (emphasis added)). “This

uniformity of usage is powerful objective evidence” that sexualorientation and gender-identity discrimination are “independent

categor[ies] of discrimination and [are] not synonymous with sex

discrimination.” Hively, 853 F.3d at 364-65 (Sykes, J., dissenting).

19

to select the most oblique formulation they could think

of (‘because of sex’) and then hope for the best that

courts would understand what they meant.”).

Whether this Court looks only to the language and

its context in Title VII or considers the relevant

legislative history and purpose expressed in the

statute, it is clear that the term “sex” in Title VII does

not mean or include sexual orientation or gender

identity.

II.

Discrimination

Based

on

Sexual

Orientation or Gender Identity Is Not Sex

Stereotyping and Is Not Analogous to

Anti-miscegenation Laws.

Proponents of construing Title VII to prohibit

discrimination based on sexual orientation or gender

identity contend that such discrimination constitutes

sex stereotyping under Price Waterhouse v. Hopkins,

490 U.S. 228 (1989) (plurality opinion). They also

argue that discrimination based on sexual orientation

is analogous to the anti-miscegenation law this Court

invalidated in Loving v. Virginia, 388 U.S. 1 (1967).

Those arguments should be rejected.

A. The argument that discrimination based on

sexual orientation or gender identity necessarily

constitutes sex stereotyping rests on a fundamental

misunderstanding of Price Waterhouse. This Court

granted review in Price Waterhouse to resolve “a

conflict . . . concerning the respective burdens of proof

of a defendant and a plaintiff in a suit under Title VII

when it has been shown that an employment decision

resulted from a mixture of legitimate and illegitimate

20

motives.” 490 U.S. at 232. On that issue, the plurality

held that “once a plaintiff in a Title VII case shows that

gender played a motivating part in an employment

decision, the defendant may avoid a finding of liability

only by proving that it would have made the same

decision even if it had not allowed gender to play such

a role.” Id. at 244-45.

Because the evidence of discrimination in that case

included evidence of sex stereotyping, and Price

Waterhouse had at least insinuated that such

stereotyping “lack[ed] legal relevance,” the plurality

also clarified that evidence of sex stereotyping can

indeed be relevant to the ultimate question whether an

employer discriminated because of sex. Id. at 250-51.

Title VII’s prohibition on discrimination because of sex,

the plurality explained, was “intended to strike at the

entire spectrum of disparate treatment of men and

women resulting from sex stereotypes.” Id. at 251

(quoting L.A. Dep’t of Water & Power v. Manhart, 435

U.S. 702, 707 n.13 (1978)). For example, it was

intended to “lift[] women out of th[e] bind” created by

“[a]n employer who objects to aggressiveness in women

but whose positions require this trait.” Id.

But the plurality did not—and did not purport

to—create an independent cause of action for sex

stereotyping. Id. at 294 (Scalia, J., dissenting) (finding

it “important to stress that Title VII creates no

independent cause of action for sex stereotyping”).

Rather, sex stereotyping is actionable under Title VII

only if it constitutes discrimination “because of . . . sex.”

21

1. Discrimination based on sexual orientation,

however, is not sex stereotyping at all, let alone the

kind of sex stereotyping that could support a Title VII

claim. To the extent that discrimination based on

sexual orientation involves stereotyping, it involves the

belief or expectation that all persons, whether male or

female, are or should be heterosexual. As Judge Sykes

explained, “heterosexuality is not a female stereotype;

it is not a male stereotype; it is not a sex-specific

stereotype at all.” Hively, 853 F.3d at 370 (Sykes, J.,

dissenting) (emphasis in original). An employer “who

hires only heterosexual employees” is simply “insisting

that his employees match the dominant sexual

orientation regardless of their sex.” Id. (emphasis in

original).

Because discrimination based on sexual orientation

is not a sex-specific stereotype, it does not result in the

“disparate treatment of men and women” that Title VII

was intended to prohibit. Price Waterhouse, 490 U.S.

at 251. Whereas the refusal to hire aggressive women

“place[d] women in an intolerable and impermissible

catch 22” and thereby systematically disadvantaged

them, id. at 251, the refusal to hire homosexuals does

not disadvantage any particular sex.

To be sure, if an employer were to apply an

otherwise sex-neutral stereotype in a sexdiscriminatory manner—for example, by hiring male

homosexual employees but not female homosexual

employees—then that could give rise to an inference of

sex discrimination. In that situation, the employee’s

sex—not sexual orientation—would be the basis for

differential treatment. Cf. Phillips v. Martin Marietta

22

Corp., 400 U.S. 542, 543 (1971) (per curiam) (employer

could not refuse applications from women with

preschool-age children while hiring men with

preschool-age children). But there is no allegation of

that kind in the cases before the Court.

2. Discrimination based on gender identity is not

sex stereotyping either.

To the extent that

discrimination based on gender identity involves

stereotyping, it is the belief or expectation that all

persons, whether male or female, identify or should

identify with the gender that corresponds to their

biological sex. But that is not a stereotype that is

specific to males or females. And because it is not a

sex-specific stereotype, it does not result in the

disparate treatment of men and women and is not

prohibited by Title VII.

3. The Second Circuit and Sixth Circuit

acknowledged that discrimination based on sexual

orientation or gender identity does not disadvantage a

particular sex, but they nevertheless found such

discrimination actionable under Title VII because it

requires an employer to consider the employee’s

biological sex.

But Title VII does not prohibit employers from

merely considering an employee’s sex; it prohibits them

from discriminating against an employee because of

that employee’s sex. As Justice O’Connor explained in

her concurring opinion in Price Waterhouse, “gender

always ‘play[s] a role’ in an employment decision in the

benign sense that [it is a] human characteristic[] of

which decisonmakers are aware and about which they

may comment in a perfectly neutral and

23

nondiscriminatory fashion.” 490 U.S. at 277 (O’Connor,

J., concurring in the judgment). An employer who

considers an employee’s sex in determining whether

the employee is transgender, and then fires the

employee because he is transgender, has discriminated

based on gender identity—not sex.

On the view of the Second Circuit and Sixth Circuit

that an employer must be completely blind to an

employee’s sex, employers could not even maintain sexsegregated restrooms or locker rooms, even though

they are “of course ubiquitous in our society.” Wittmer,

915 F.3d at 334 (Ho, J., concurring); see also id. at 337

(“No one . . . has suggested how the blindness theory of

Title VII could prohibit transgender and sexual

orientation discrimination, while still allowing

employers to maintain separate bathrooms for men and

women.”). That view must be rejected. It lacks any

basis in the statutory text and would radically

transform Title VII. See id. at 338 (predicting that the

“blindness approach to Title VII” would bring about

“revolutionary social change”).

B. The argument that sexual orientation

discrimination is analogous to the anti-miscegenation

law this Court invalidated in Loving is similarly

untenable. In Loving, this Court held that a law

making it a crime for a “white person” to marry a

“colored person” violated the Equal Protection Clause.

388 U.S. at 4. It reached that conclusion because the

law at issue contained facial racial classifications and

could be justified only as an act of “invidious racial

discrimination . . . . designed to maintain White

Supremacy.” Id. at 11. Because anti-miscegenation

24

laws sought to confine black people to “a position of

inferiority,” Charles Black, The Lawfulness of the

Segregation Decisions, 69 Yale L.J. 421, 424 (1960),

such laws represented “a product of bigotry against a

single race by another.” Zarda, 883 F.3d at 159

(Lynch, J., dissenting). In other words, “Loving rests

on the inescapable truth that miscegenation laws are

inherently racist.” Hively, 853 F.3d at 368 (Sykes, J.,

dissenting); see also Zarda, 883 F.3d at 158 (Lynch, J.,

dissenting) (prohibitions on “race-mixing” were “an

integral part of preserving the rigid hierarchical

distinction that denominated members of the black

race as inferior to whites”).

Lower courts have held that anti-miscegenation

policies in the employment context constitute

discrimination “because of . . . race” within the

meaning of Title VII. See, e.g., Barrett v. Whirlpool

Corp., 556 F.3d 502, 512 (6th Cir. 2009); Holcomb v.

Iona Coll., 521 F.3d 130, 139 (2d. Cir. 2008). That

extension makes sense: Anti-miscegenist employment

policies “share the same contextual foundation” as the

law invalidated in Loving. Hively, 853 F.3d at 368

(Sykes, J., dissenting). They are prohibited not because

they require employers to consider race, but because

they are inherently racist.

“Sexual orientation discrimination, on the other

hand, is not inherently sexist.” Id. (emphasis in

original). An employer who discriminates based on

sexual orientation does not do so because of animus

toward or a desire to oppress males or females. Nor

does sexual orientation discrimination have the effect

of disadvantaging one sex or the other. Discrimination

25

based on sexual orientation is not discrimination

“because of . . . sex” and does not result in the disparate

treatment of males and females, and, therefore, Title

VII does not prohibit discrimination based on sexual

orientation.

Common usage confirms the point. Suppose, for

example, that a corporation hired men and women

equally, yet refused to hire homosexuals. No one would

call that company “sexist.” Rather, that corporation

would be called “homophobic.” Cf. Wittmer, 915 F.3d at

338 (Ho, J., concurring) (“When asked about a

hypothetical company that hires equally between men

and women, but refuses to hire any transgender men or

women, counsel agreed that, as a matter of common

parlance, we would call that company today

transphobic, not sexist.”).

III.

The Constitutional-Doubt Canon Requires

the Court to Read “Sex” Narrowly.

If plain meaning and history were not enough, there

is yet another reason to confine “sex” to its ordinary

and normal meaning, which is a narrow one. If

plaintiffs are correct that “sex” in Title VII broadly

includes “sexual orientation” and “gender identity,”

that would raise a serious constitutional question about

whether Title VII effects a valid abrogation of state

sovereign immunity under section 5 of the Fourteenth

Amendment. Under the constitutional-doubt canon,

the Court should avoid that question by cabining “sex”

to its most natural narrow meaning.

A. Section 5 of the Fourteenth Amendment grants

Congress the power to abrogate state sovereign

26

immunity under limited circumstances. Kimel v. Fla.

Bd. of Regents, 528 U.S. 62, 80 (2000); see also City of

Boerne v. Flores, 521 U.S. 507, 517 (1997) (“It is for

Congress in the first instance to determine whether

and what legislation is needed to secure the guarantees

of the Fourteenth Amendment.” (cleaned up)).

Congress relied on this power when it amended Title

VII in 1972 “to bring the States within its purview.”

Fitzpatrick v. Bitzer, 427 U.S. 445, 449 (1976).

But section 5’s “affirmative grant of congressional

power” is tightly limited to enforcing the Constitution’s

requirements, not defining them. Kimel, 528 U.S. at

81. And “the determination whether purportedly

prophylactic legislation constitutes appropriate

remedial legislation, or instead effects a substantive

redefinition of the Fourteenth Amendment right at

issue, is often difficult.” Id. (citing Flores, 521 U.S. at

519-20). While the line between remedial legislation

and a substantive redefinition is not always clear, this

Court has held that there “must be a congruence and

proportionality between the injury to be prevented or

remedied and the means adopted to that end.” Flores,

521 U.S. at 520.

Applying that “congruence and proportionality” test,

the Court declared in 1997 that the Religious Freedom

Restoration Act (“RFRA”) is not appropriate legislation

under section 5. Id. at 531-34. The Court explained

that “the legislative record contained very little

evidence of the unconstitutional conduct purportedly

targeted by RFRA’s substantive provisions.” Kimel,

528 U.S. at 81-82. In particular, “Congress had

uncovered only ‘anecdotal evidence’ that, standing

27

alone, did not reveal a ‘widespread pattern of religious

discrimination in this country.’” Id. at 82 (quoting

Flores, 521 U.S. at 531). In addition, RFRA was “so out

of proportion to a supposed remedial or preventive

object that it cannot be understood as responsive to, or

designed to prevent, unconstitutional behavior.”

Flores, 521 U.S. at 532.

Two years later, the Court applied the “congruence

and proportionality” test again to the Patent Remedy

Act. See Fla. Prepaid Postsecondary Educ. Expense Bd.

v. Coll. Savings Bank, 527 U.S. 627 (1999). The Court

held that statute did not validly abrogate state

sovereign immunity under section 5 largely because

“Congress identified no pattern of patent infringement

by the States, let alone a pattern of constitutional

violations.” Id. at 640. The Court later explained that

“because it was unlikely that many of the acts of patent

infringement affected by the statute had any likelihood

of being unconstitutional, . . . the scope of the Act was

out of proportion to its supposed remedial or preventive

objectives.” Kimel, 528 U.S. at 82.

For similar reasons, in Kimel, the Court concluded

that the Age Discrimination in Employment Act is not

“appropriate legislation” under section 5. Id. at 83.

The Court reasoned that it had considered claims of

unconstitutional age discrimination under the Equal

Protection Clause three times, and each time it found

no constitutional violation. Id. Age is not a suspect

classification, and so the Equal Protection Clause does

not prohibit “States’ reliance on broad generalizations

with respect to age.” Id. at 84-85.

28

The Court thus has frequently applied the

“congruence and proportionality” test to reject federal

efforts to abrogate state sovereign immunity. As

Flores, Florida Prepaid, and Kimel illustrate, such

abrogation is permissible only in rare circumstances to

redress a “widespread pattern” of unconstitutional

discrimination by the States in violation of the

Constitution’s plain text and as documented in

congressional findings. Kimel, 528 U.S. at 90; see also

Flores, 521 U.S. at 520.

B. A serious constitutional question exists as to

whether Title VII could validly abrogate state

sovereign immunity as to claims of discrimination

based on sexual orientation or gender identity. The

Court should not invite that question; the proper

course is to construe Title VII in a way that avoids that

issue.

1. The constitutional-doubt canon “is a tool for

choosing between competing plausible interpretations

of a statutory text, resting on the reasonable

presumption that Congress did not intend the

alternative which raises serious constitutional doubts.”

Clark v. Martinez, 543 U.S. 371, 381 (2005). The canon

provides: “[W]here a statute is susceptible of two

constructions, by one of which grave and doubtful

constitutional questions arise and by the other of which

such questions are avoided, our duty is to adopt the

latter.” Antonin Scalia & Bryan A. Garner, Reading

Law: The Interpretation of Legal Texts 247 (2012)

(quoting United States ex rel. Att’y Gen. v. Del. &

Hudson Co., 213 U.S. 366, 408 (1909)). This Court has

explained that “one of the canon’s chief justifications is

29

that it allows courts to avoid the decision of

constitutional questions.” Clark, 543 U.S. at 381

(emphasis omitted).

The canon “goes much further than” a mere

presumption that a statute is valid. Scalia & Garner,

supra, at 247. “It militates against not only those

interpretations that would render the statute

unconstitutional but also those that would even raise

serious questions of constitutionality.” Id. at 247-48.

The canon rests “upon a judicial policy of not

interpreting ambiguous statutes to flirt with

constitutionality, thereby minimizing judicial conflicts

with the legislature.” Id. at 249.

2.

If “sex” in Title VII is read to forbid

discrimination based upon sexual orientation or gender

identity, it will necessarily present very difficult

questions about whether Title VII’s abrogation of

sovereign immunity is constitutional. Application of

the constitutional-doubt canon to construe Title VII

narrowly avoids those questions altogether, as the

canon is designed to do.

In enacting Title VII, “Congress never identified any

pattern of” sexual-orientation or gender-identity

“discrimination by the States, much less any

discrimination whatsoever that rose to the level of

constitutional violation.” Kimel, 528 U.S. at 89.

Indeed, it is unclear even where the constitutional line

is as to this issue. See, e.g., Bd. of Trustees of Univ. of

Ala. v. Garrett, 531 U.S. 356, 368 (2001) (“Once we

have determined the metes and bounds of the

constitutional right in question, we examine whether

Congress identified a history and pattern of

30

unconstitutional employment discrimination by the

States . . . .”); United States v. Virginia, 518 U.S. 515,

540 (1996) (finding no constitutional problem with

providing different “housing assignments and physical

training programs for female cadets” at VMI); United

States v. Windsor, 570 U.S. 744, 792-93 (2013) (Scalia,

J., dissenting) (noting unresolved questions).

It is clear “that Congress had no reason to believe

that broad prophylactic legislation was necessary in

this field.” Kimel, 528 U.S. at 91. Indeed, “the

indiscriminate scope of the [the Civil Rights Act’s]

substantive requirements,” combined with “the lack of

evidence of widespread and unconstitutional [sexualorientation or gender-identity] discrimination by the

States,” provides ample reason to doubt that Title VII

could validly abrogate state sovereign immunity under

section 5. Id.

It makes no difference that Title VII’s abrogation

may be valid as applied to actual constitutional

violations. See United States v. Georgia, 546 U.S. 151,

158-59 (2006).

It is irrelevant whether the

constitutionality of an abrogation provision is to be

determined on an as-applied basis, because the

constitutional-doubt canon is not a method to

determine the constitutionality of anything. Rather, “it

allows courts to avoid the decision of constitutional

questions.” Clark, 543 U.S. at 381 (rejecting dissent’s

complaint that the canon “effect[s] an end run around

black-letter constitutional doctrine governing facial and

as-applied constitutional challenges”) (internal

quotation marks omitted)). Any evaluation of Title

VII’s abrogation as applied to accusations of

31

unconstitutional discrimination based on sexual

orientation and gender identity would also necessarily

raise difficult constitutional questions.3

Nor does it matter that the constitutionality of Title

VII’s abrogation is not at issue in this case. This Court

has endorsed adopting a limiting construction of one of

a statute’s applications, “even though other of the

statute’s applications, standing alone, would not

support the same limitation.” Clark, 543 U.S. at 380.

That is because “[t]he lowest common denominator, as

it were, must govern.” Id. Simply put, if one possible

statutory construction “would raise a multitude of

constitutional problems, the other should

prevail—whether or not those constitutional problems

pertain to the particular litigant before the Court.” Id.

at 380-81 (emphasis added).

In short, a broad reading of “sex” would raise

serious and difficult constitutional questions about

Title VII’s abrogation of state sovereign immunity. The

Court should avoid those problems altogether by

3

Georgia’s “surgical severing” of Title II of the ADA’s abrogation

provision to limit it to actual constitutional violations, Richard H.

Fallon, Jr., Fact and Fiction about Facial Challenges, 99 Cal. L.

Rev. 915, 957-58 (2011), is contrary to earlier decisions evaluating

abrogation on a facial, rather than as-applied, basis. See, e.g.,

Kimel, 528 U.S. at 91-92; Fla. Prepaid, 527 U.S. 637-48. Indeed,

in Florida Prepaid, the Court relied on Congress’s failure “to limit

the coverage of the Act to cases involving arguable constitutional

violations” as a basis to strike the Act’s abrogation in toto. 527

U.S. at 646. At the very least, the proper mode of reviewing Title

VII’s abrogation is another difficult constitutional question that

will arise if petitioners prevail.

32

reading “sex” narrowly, as the constitutional-doubt

canon requires in these circumstances.

IV.

Construing Title VII to Prohibit

Discrimination Based on Sexual

Orientation or Gender Identity Would

Trespass on Congress’s Policymaking Role.

It is the job of Congress, not this Court or the lower

federal courts, to write the laws. See, e.g., SAS Inst.

Inc. v. Iancu, 138 S. Ct. 1348, 1358 (2018) (“It is

Congress’s job to enact policy and it is this Court’s job

to follow the policy Congress has described.”). There is

a reason for that design. “Article I’s precise rules of

representation, member qualifications, bicameralism

and voting procedure make Congress the branch most

capable of responsive and deliberative lawmaking.”

Loving v. United States, 517 U.S. 748, 757-58 (1996).

As the branch most responsive to the people, Congress

is in the best position to decide “what competing values

will or will not be sacrificed to the achievement of a

particular objective.” Rodriguez v. United States, 480

U.S. 522, 526 (1987). Indeed, such decisions are the

“very essence of legislative choice.” Id.

“[N]o legislation pursues its purposes at all costs,”

id., and federal antidiscrimination laws are no

exception. Title VII reflects a “balance between

employee rights and employer prerogatives.” Price

Waterhouse, 490 U.S. at 243; see also id. at 242 (noting

that an “important aspect of the statute is its

preservation of an employer’s remaining freedom of

choice”). Because Congress was “unwilling[] to require

employers to change the very nature of their operations

in response to the statute,” id. at 242, for example,

33

Title VII allows employers to discriminate based on

“religion, sex, or national original in those certain

instances where religion, sex, or national origin is a

bona fide occupational qualification.” 42 U.S.C.

§ 2000e-2(e). Title VII also exempts religious entities

from its prohibition on religious discrimination. See 42

U.S.C. § 2000e-1(a).

Title IX, which prohibits discrimination “on the

basis of sex” by educational institutions that receive

federal funding, 20 U.S.C. § 1681(a), is replete with

exceptions that reflect an attempt to balance competing

interests. For example, Title IX’s prohibition on sex

discrimination does not apply to educational

institutions “controlled by a religious organization” to

the extent application would be inconsistent with that

organization’s “religious tenets,” id. § 1681(a)(3), or to

the membership practices of the Boy Scouts and Girl

Scouts and similar organizations, id. § 1681(a)(6)(B).

And Congress specified that the statute should not be

construed to prohibit schools “from maintaining

separate living facilities for the different sexes.” Id.

§ 1686.

The policy decision whether to prohibit

discrimination based on sexual orientation and gender

identity involves not just that principal question, but

also a host of subsidiary choices about how to balance

the competing interests at stake. Legislative efforts at

the state level illustrate this point. In Utah, for

example, at the same time the legislature added

“sexual orientation” and “gender identity” as prohibited

bases of employment discrimination, it expanded

protections for religious liberty and specified that

34

employers could maintain “reasonable dress and

grooming standards” and “sex-specific facilities” as long

as employers afford reasonable accommodations based

on gender identity.

Utah Code Ann. § 34A-5106(1)(a)(1)(I)-(J); id. §§ 34A-5-109 to -112.

The decision whether to extend Title IX to prohibit

discrimination based on sexual orientation and gender

identity is particularly fraught with sensitive issues.

If a school separates students by sex on overnight field

trips, which is allowed under 20 U.S.C. § 1686, must a

transgender student’s assignment correspond to the

student’s gender identity?

How about college

dormitories? May a university take into account a

student’s sexual orientation when making housing

assignments? And what about athletics? Must a

school allow a biologically male student who identifies

as a female to participate on a women’s sports team?

The point of this discussion is not to suggest how

these questions should be answered; it is to urge this

Court to allow Congress to answer them. When a

federal court, under the guise of statutory

interpretation, rewrites a federal statute, it trespasses

on Congress’s policymaking authority. And that

trespass is particularly egregious when the policy

choices are “as sensitive as those implicated” in these

cases. Harris v. McRae, 448 U.S. 297, 326 (1980)

(quoting Maher v. Roe, 432 U.S. 464, 479 (1977)). The

“appropriate forum for their resolution in a democracy

is the legislature,” not this Court. Id. (quoting Maher,

432 U.S. at 479).

And there should be no doubt that trespass is

exactly what the plaintiffs ask this Court to do. Judge

35

Posner, concurring in Hively, candidly admitted as

much.

He acknowledged the “certain[ty] that

homosexuality, male or female, did not figure in the

minds of the legislators who enacted Title VII.” 853

F.3d at 353. As a result, he admitted that the Hively

majority—which he joined—was doing nothing more

than “rewriting Title VII.”

Id. at 354.

He

acknowledged that the plaintiffs’ aim in these cases is

to “impos[e] on a half-century-old statute a meaning of

‘sex discrimination’ that the Congress that enacted it

would not have accepted,” and he obliged them “to

avoid placing the entire burden of updating old statutes

on the legislative branch.” Id. at 357. This Court

should not countenance “the circumvention of the

legislative process by which the people govern

themselves.” Id. at 360 (Sykes, J., dissenting).

States are uniquely harmed when the Court

impinges on Congress’s policymaking authority.

Judicial rewriting circumvents the strictures of Article

I that encourage deliberative and responsive

lawmaking, including requirements like bicameralism

that are designed to protect state interests and ensure

consideration of state prerogatives. See, e.g., Bradford

R. Clark, Separation of Powers as a Safeguard of

Federalism, 79 Tex. L. Rev. 1321, 1328-29, 1343-44

(2001); Herbert Wechsler, The Political Safeguards of

Federalism: The Role of the States in the Composition

and Selection of the National Government, 54 Colum. L.

Rev. 543, 546-48 (1954). Moreover, judicial rewriting

that extends a statute beyond its plain language to

regulate to a greater degree than Congress intended

could impede state policymaking efforts, which are

likely to be more responsive to local interests and

36

concerns than a federal solution. The features of the

legislative process that have prompted some to seek

social change from the federal judiciary instead of

Congress—procedures that “often seem clumsy,

inefficient, even unworkable,” I.N.S. v. Chadha, 462

U.S. 919, 959 (1983)—also protect federalism by

ensuring that national policy will not too easily

displace state and local policies. See Clark, supra, at

1323-25.

“[W]hatever its virtues or vices, Congress’s

prescribed policy here is clear[.]” SAS, 138 S. Ct. at

1358. Title VII prohibits discrimination “because

of . . . sex,” not sexual orientation or gender identity.

This Court’s role is to follow that policy unless and

until Congress changes it.

CONCLUSION

Amici States urge this Court to hold that Title VII

does not prohibit discrimination based on sexual

orientation or gender identity.

37

Respectfully submitted,

HERBERT H. SLATERY III

Attorney General and Reporter

State of Tennessee

ANDRÉE S. BLUMSTEIN

Solicitor General

Counsel of Record

SARAH K. CAMPBELL

Associate Solicitor General

P.O. Box 20207

Nashville, TN 37202

(615) 741-3492

andree.blumstein@ag.tn.gov

Counsel for State of Tennessee

DOUGLAS J. PETERSON

Attorney General

State of Nebraska

DAVID BYDALEK

Chief Deputy Attorney General

2115 State Capitol Building

Lincoln, Nebraska 68509

Counsel for State of Nebraska

KEN PAXTON

Attorney General

State of Texas

KYLE D. HAWKINS

Solicitor General

P.O. Box 12548 (MC 059)

Austin, Texas 78711

Counsel for State of Texas

Dated: AUGUST 2019

38

ADDITIONAL COUNSEL

STEVE MARSHALL

Attorney General

State of Alabama

MIKE HUNTER

Attorney General

State of Oklahoma

KEVIN G. CLARKSON

Attorney General

State of Alaska

ALAN WILSON

Attorney General

State of South Carolina

LESLIE RUTLEDGE

Attorney General

State of Arkansas

JASON R. RAVNSBORG

Attorney General

State of South Dakota

LAWRENCE G. WASDEN

Attorney General

State of Idaho

PATRICK MORRISEY

Attorney General

State of West Virginia

M. STEPHEN PITT

General Counsel to

Governor Matt Bevin

Commonwealth of

Kentucky

JEFF LANDRY

Attorney General

State of Louisiana

ERIC S. SCHMITT

Attorney General

State of Missouri

DAVE YOST

Attorney General

State of Ohio