Nos. 17-1618 and 17-1623

In the Supreme Court of the United States
GERALD LYNN BOSTOCK, PETITIONER
v.
CLAYTON COUNTY, GEORGIA
ALTITUDE EXPRESS, INC., ET AL., PETITIONERS
v.
MELISSA ZARDA, AS EXECUTOR OF THE
ESTATE OF DONALD ZARDA, ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURTS OF APPEALS
FOR THE ELEVENTH AND SECOND CIRCUITS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING AFFIRMANCE
IN NO. 17-1618 AND REVERSAL IN NO. 17-1623

NOEL J. FRANCISCO
Solicitor General
Counsel of Record
JOSEPH H. HUNT
ERIC S. DREIBAND
Assistant Attorneys General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General

Additional Counsel Listed on Inside Cover

 SOPAN JOSHI
Assistant to the Solicitor
General
ERIC TREENE
Special Counsel
CHARLES W. SCARBOROUGH
STEPHANIE R. MARCUS
Attorneys
Department of Justice
Washington, D.C. 20530-0001
SupremeCtBriefs@usdoj.gov
(202) 514-2217

 QUESTION PRESENTED

Whether the prohibition in Title VII of the Civil
Rights Act of 1964, 42 U.S.C. 2000e-2(a)(1), against employment discrimination “because of * * * sex” prohibits
employment discrimination because of sexual orientation.

(I)

 TABLE OF CONTENTS

Page
Interest of the United States....................................................... 1
Statement ...................................................................................... 2
Summary of argument ................................................................. 9
Argument:
Title VII does not prohibit discrimination because of
sexual orientation................................................................... 12
A. Discrimination because of sexual orientation
does not constitute discrimination because of
sex .......................................................................... 12
1. “Sex” does not mean “sexual
orientation” ................................................... 12
2. Discrimination because of sexual
orientation does not involve treating
members of one sex less favorably
than similarly situated members of
the other........................................................ 16
B. Discrimination because of sexual orientation
does not constitute prohibited sex
stereotyping .......................................................... 23
C. Discrimination because of sexual orientation
does not constitute improper associational
discrimination ....................................................... 28
D. Congress has ratified the settled
understanding that Title VII does not
prohibit discrimination because of sexual
orientation............................................................. 30
Conclusion ................................................................................... 34
TABLE OF AUTHORITIES

Cases:
Angle v. Veneman, EEOC Decision No. 01A32644,
2004 WL 764265 (Apr. 5, 2004) ............................................ 5

(III)

 IV
Cases—Continued:

Page

Baldwin v. Foxx, EEOC Decision No. 0120133080,
2015 WL 4397641 (July 15, 2015) .................................... 4, 5
Bauer v. Lynch, 812 F.3d 340 (4th Cir.),
cert. denied, 137 S. Ct. 372 (2016) ..................................... 18
Bibby v. Philadelphia Coca Cola Bottling Co.,
260 F.3d 257 (3d Cir. 2001), cert. denied,
534 U.S. 1155 (2002).............................................................. 4
Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) .......... 4
Christiansen v. Omnicon Grp., Inc., 852 F.3d 195
(2d Cir. 2017) ....................................................................... 26
City of Los Angeles Dep’t of Water & Power v.
Manhart, 435 U.S. 702 (1978) .....................20, 21, 23, 24, 26
DeSantis v. Pacific Tel. & Tel. Co., 608 F.2d 327
(9th Cir. 1979), abrogated on other grounds,
Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864
(9th Cir. 2001) ........................................................................ 3
Dillon v. Frank, EEOC Decision No. 01900157,
1990 WL 1111074 (Feb. 14, 1990) .................................... 4, 5
Doe v. Luzerne County, 660 F.3d 169 (3d Cir. 2011) ......... 18
Dothard v. Rawlinson, 433 U.S. 321 (1977) .................. 21, 22
Evans v. Georgia Reg’l Hosp., 850 F.3d 1248
(11th Cir.), cert. denied, 138 S. Ct. 557 (2017) ............... 4, 5
Fisher v. University of Texas, 136 S. Ct. 2198 (2016) ....... 28
Furnco Constr. Corp. v. Waters, 438 U.S. 567 (1978) ........ 16
General Dynamics Land Sys., Inc. v. Cline,
540 U.S. 581 (2004)........................................................ 32, 33
General Elec. Co. v. Gilbert, 429 U.S. 125 (1976) ........... 2, 32
Hamm v. Weyauwega Milk Prods., Inc.,
332 F.3d 1058 (7th Cir. 2003), overruled by
Hiveley v. Ivy Tech Cmty. Coll., 853 F.3d 339
(7th Cir. 2017) ............................................................ 4, 24, 27
Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993) ................. 17

 V
Cases—Continued:

Page

Higgins v. New Balance Athletic Shoe, Inc.,
194 F.3d 252 (1st Cir. 1999) ................................................. 4
Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339
(7th Cir. 2017) ........................................... 4, 13, 14, 15, 19, 25
International Union v. Johnson Controls, Inc.,
499 U.S. 187 (1991).............................................................. 23
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167
(2005) .................................................................................... 15
Jespersen v. Harrah’s Operating Co., 444 F.3d 1104
(9th Cir. 2006) ...................................................................... 18
Lorillard v. Pons, 434 U.S. 575 (1978) .................... 30, 31, 32
Loving v. Virginia, 388 U.S. 1 (1967) .................................. 28
Marucci v. Caldera, EEOC Decision No. 01982644,
2000 WL 1637387 (Oct. 27, 2000) ......................................... 5
Medina v. Income Support Div., 413 F.3d 1131
(10th Cir. 2005) ...................................................................... 4
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57
(1986) ...................................................................................... 2
Michael M. v. Superior Court, 450 U.S. 464 (1981) ..... 28, 29
Newport News Shipbuilding & Dry Dock Co. v.
EEOC, 462 U.S. 669 (1983) ................................................ 23
Northern Ins. Co. v. Chatham County, 547 U.S. 189
(2006) ...................................................................................... 4
Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75 (1998) .................................. 15, 16, 17, 19, 20, 24
Pension Benefit Guar. Corp. v. LTV Corp.,
496 U.S. 633 (1990).............................................................. 31
Phillips v. Martin Marietta Corp., 400 U.S. 542
(1971) .............................................................................. 22, 23
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ..... 20, 24
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285
(3d Cir. 2009) ....................................................................... 26

 VI
Cases—Continued:

Page

Ricci v. DeStefano, 557 U.S. 557 (2009) .............................. 31
Ruth v. Children’s Med. Ctr., 940 F.2d 662,
1991 WL 151158 (6th Cir. 1991) .......................................... 3
Sandifer v. United States Steel Corp., 571 U.S. 220
(2014) .................................................................................... 12
Sebelius v. Cloer, 569 U.S. 369 (2013) .................................. 27
Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000) ............. 4, 7
Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248 (1981).............................................................. 16
Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive
Communities Project, Inc., 135 S. Ct. 2507 (2015) ..... 30, 31
Ulane v. Eastern Airlines, Inc., 742 F.2d 1081
(7th Cir. 1984), cert. denied, 471 U.S. 1017 (1985) ............. 4
United States v. Virginia, 518 U.S. 515 (1996)................... 29
Wards Cove Packing Co. v. Atonio, 490 U.S. 642
(1989) .................................................................................... 31
Williamson v. A.G. Edwards & Sons, Inc.,
876 F.2d 69 (8th Cir. 1989), cert. denied,
493 U.S. 1089 (1990).............................................................. 3
Wittmer v. Phillips 66 Co., 915 F.3d 328
(5th Cir. 2019) ....................................................... 15, 18, 24
Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138
(4th Cir. 1996) ........................................................................ 4
Young v. United Parcel Serv., Inc., 135 S. Ct. 1338
(2015) .................................................................................... 16
Statutes:
Civil Rights Act of 1964, Tit. VII, Pub. L. No. 88-352,
78 Stat. 253-266 (42 U.S.C. 2000e et seq.) ................ passim
42 U.S.C. 2000e(b) ............................................................. 2
42 U.S.C. 2000e(k) ........................................................... 15
42 U.S.C. 2000e-2(a)(1) ................................................. 2, 3

 VII
Statutes—Continued:

Page

42 U.S.C. 2000e-2(a)(2) ................................................... 12
42 U.S.C. 2000e-2(k) ........................................................ 32
42 U.S.C. 2000e-2(m) ................................................. 26, 32
42 U.S.C. 2000e-5(g)(2) ................................................... 32
42 U.S.C. 2000e-16............................................................. 2
42 U.S.C. 2000e-16(a) (2012 & Supp. V 2017) ................. 2
Civil Rights Act of 1991, Pub. L. No. 102-166,
105 Stat. 1071 ........................................................................ 3
Fair Housing Act, 42 U.S.C. 3601 et seq. ............................ 30
Pregnancy Discrimination Act, Pub. L. No. 95-555,
92 Stat. 2076 (42 U.S.C. 2000e(k)) ................................. 2, 33
Violent Crime Control and Law Enforcement Act
of 1994, Pub. L. No. 103-322, Tit. XXVIII,
§ 280003(a), 108 Stat. 2096 ................................................. 14
18 U.S.C. 249(a)(2)(A) ........................................................ 14
18 U.S.C. 249(c)(4) ............................................................. 14
34 U.S.C. 12291(b)(13)(A) (Supp. V 2017) ........................ 14
34 U.S.C. 30503(a)(1)(C) (Supp. V 2017) .......................... 14
D.C. Code § 2-1402.31 (LexisNexis 2001) ........................... 15
775 Ill. Comp. Stat. Ann. 5/1-103 (West 2011) .................... 15
Miscellaneous:
William P. Barr, U.S. Department of Justice
Equal Employment Opportunity Policy
(Apr. 4, 2019) ....................................................................... 12
Black’s Law Dictionary (4th ed. 1951) ............................... 13
137 Cong. Rec. (1991):
p. 5261 ......................................................................... 11, 31
p. 6161 ......................................................................... 11, 31
H.R. 166, 94th Cong., 1st Sess. (as introduced in the
House on January 14, 1975) ................................................. 3

 VIII
Miscellaneous—Continued:

Page

H.R. 1430, 102d Cong., 1st Sess. (as introduced in the
House on March 13, 1991) .................................................... 3
H.R. Rep. No. 40, 102d Cong., 1st Sess. Pt. 2 (1991) ......... 31
S. 574, 102d Cong., 1st Sess. (as introduced in the
Senate on March 6, 1991) ..................................................... 3
Webster’s New International Dictionary
(2d ed. 1957)......................................................................... 13

 In the Supreme Court of the United States
No. 17-1618
GERALD LYNN BOSTOCK, PETITIONER
v.
CLAYTON COUNTY, GEORGIA
No. 17-1623
ALTITUDE EXPRESS, INC., ET AL., PETITIONERS
v.
MELISSA ZARDA, AS EXECUTOR OF THE
ESTATE OF DONALD ZARDA, ET AL.
ON WRITS OF CERTIORARI
TO THE UNITED STATES COURTS OF APPEALS
FOR THE ELEVENTH AND SECOND CIRCUITS

BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING AFFIRMANCE
IN NO. 17-1618 AND REVERSAL IN NO. 17-1623

INTEREST OF THE UNITED STATES

At issue here is the scope of the protections in Title
VII of the Civil Rights Act of 1964, Pub. L. No. 88-352,
78 Stat. 253-266 (42 U.S.C. 2000e et seq.). The Attorney
General enforces Title VII against public employers,
and the Equal Employment Opportunity Commission
(EEOC) enforces Title VII against private employers.
Title VII also applies to the federal government as an
(1)

 2
employer. See 42 U.S.C. 2000e-16. Accordingly, the
United States has a substantial interest in the statute’s
proper interpretation.
STATEMENT

1. Title VII makes it “an unlawful employment practice” for certain employers, including federal, state, and
local governmental employers, “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 * * * sex.” 42 U.S.C.
2000e-2(a)(1); see 42 U.S.C. 2000e(b) and 42 U.S.C.
2000e-16(a) (2012 & Supp. V 2017). Congress did not
define the term “sex,” which “was added to Title VII at
the last minute on the floor of the House.” Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 63 (1986).
In General Electric Co. v. Gilbert, 429 U.S. 125 (1976),
this Court held that an employer did not discriminate
“because of * * * sex” within the meaning of Title VII
when it refused to cover pregnancy in its disabilitybenefits plan. Id. at 135-140. Two years later, Congress
amended Title VII by specifying that “[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not
limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions.” Pregnancy Discrimination Act, Pub. L. No. 95-555, 92 Stat. 2076
(42 U.S.C. 2000e(k)). That remains Congress’s only
amendment to Title VII regarding the term “sex.”
For more than 40 years, Congress has repeatedly declined to pass bills adding sexual orientation to the list
of protected traits in Title VII. In 1975, Representative
Bella Abzug introduced a bill to amend various antidiscrimination provisions in the Civil Rights Act of 1964,
including the employment-discrimination provisions in

 3
Title VII, “by adding after the word ‘sex,’ each time it
appears[,] the words ‘affectional or sexual preference.’ ”
H.R. 166, 94th Cong., 1st Sess. § 6 (as introduced in the
House on January 14, 1975). The bill died in committee.
Similar bills seeking to add sexual orientation to the list
of protected traits in Title VII have been introduced—
but not enacted—in every Congress since, including earlier this year. See 17-1623 Pet. App. 106 n.23 (collecting
many of those bills); 17-1623 Pet. 20 n.6 (same).
Of particular relevance here, in March 1991, bills were
introduced in both the House and the Senate to add “affectional or sexual orientation” to Title VII’s protected
traits. H.R. 1430, 102d Cong., 1st Sess. § 2(d) (as introduced in the House on March 13, 1991); S. 574, 102d Cong.,
1st Sess. § 5 (as introduced in the Senate on March 6,
1991). Like all of the other such bills over the years,
neither of those bills was enacted. Instead, a few months
later, Congress passed and President Bush signed the
Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat.
1071, which enacted major amendments to Title VII—
but left the operative language in 42 U.S.C. 2000e-2(a)(1)
intact.
Congress enacted that overhaul against a uniform
judicial and administrative backdrop. By 1991, at least
four courts of appeals had held that discrimination “because of * * * sex” in Title VII does not encompass discrimination because of sexual orientation—and no court
of appeals had held otherwise. See Ruth v. Children’s
Med. Ctr., 940 F.2d 662, 1991 WL 151158 (6th Cir. 1991)
(Tbl.) (per curiam); Williamson v. A.G. Edwards &
Sons, Inc., 876 F.2d 69, 70 (8th Cir. 1989) (per curiam),
cert. denied, 493 U.S. 1089 (1990); DeSantis v. Pacific
Tel. & Tel. Co., 608 F.2d 327, 329-330 (9th Cir. 1979),
abrogated on other grounds, Nichols v. Azteca Rest.

 4
Enters., Inc., 256 F.3d 864, 874-875 (9th Cir. 2001);
Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)
(per curiam). In addition, the Seventh Circuit had said
the same in dicta, see Ulane v. Eastern Airlines, Inc.,
742 F.2d 1081, 1084 (1984), cert. denied, 471 U.S. 1017
(1985), and the Eleventh Circuit was bound by Blum,
see Northern Ins. Co. v. Chatham County, 547 U.S. 189,
192 & n.1 (2006). The EEOC held that position, too. See
Dillon v. Frank, EEOC Decision No. 01900157, 1990 WL
1111074, at *3 (Feb. 14, 1990).
Congress has not amended the relevant provisions of
Title VII since then. By March 2017, all eleven courts
of appeals that had addressed the issue agreed that Title VII does not prohibit discrimination because of sexual orientation. See, e.g., Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 259 (1st Cir. 1999); Simonton v. Runyon, 232 F.3d 33, 36 (2d Cir. 2000); Bibby v.
Philadelphia Coca Cola Bottling Co., 260 F.3d 257, 261
(3d Cir. 2001), cert. denied, 534 U.S. 1155 (2002); Wrightson v. Pizza Hut of Am., Inc., 99 F.3d 138, 143 (4th Cir.
1996); Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d
1058, 1062 (7th Cir. 2003); Medina v. Income Support
Div., 413 F.3d 1131, 1135 (10th Cir. 2005); Evans v. Georgia Reg’l Hosp., 850 F.3d 1248, 1255 (11th Cir.), cert.
denied, 138 S. Ct. 557 (2017). The Department of Justice had taken that position in litigation, too. See, e.g.,
Def.’s Renewed Mot. to Dismiss at 16-19, Terveer v. Billington, No. 12-cv-1290 (D.D.C. Mar. 21, 2013).
In April 2017, however, the Seventh Circuit reversed
itself and became the first court of appeals to hold that
Title VII prohibits discrimination on the basis of sexual
orientation. Hively v. Ivy Tech Cmty. Coll., 853 F.3d 339,
345-349 (en banc). That decision followed the EEOC’s
own reversal two years earlier. Compare Baldwin v.

 5
Foxx, EEOC Decision No. 0120133080, 2015 WL 4397641
(July 15, 2015), with, e.g., Angle v. Veneman, EEOC Decision No. 01A32644, 2004 WL 764265, at *2 (Apr. 5,
2004) (recognizing that the EEOC had “consistently held
that discrimination based on sexual orientation is not
actionable under Title VII”), Marucci v. Caldera, EEOC
Decision No. 01982644, 2000 WL 1637387, at *2-*3 (Oct.
27, 2000), and Dillon, supra.
2. Gerald Bostock, a gay man, was employed by Clayton County, Georgia, as a child welfare services coordinator. 17-1618 Pet. App. 27. According to Bostock, his
involvement in a gay softball league in January 2013
was “openly criticized by” people “who had significant
influence” over his employment. Id. at 7. Following an
April 2013 audit of program funds that Bostock managed, the County fired Bostock for conduct unbecoming
an employee. Id. at 28. Bostock timely filed a charge
with the EEOC, asserting that the County’s stated reason was pretextual and that he was actually fired “because of [his] sex (male/sexual orientation).” Ibid. (citation omitted). The EEOC issued a right-to-sue notice
without making any findings. 17-1618 J.A. 39-40.
Bostock filed suit in federal district court. See
17-1618 Pet. App. 28. As relevant here, the second
amended complaint alleged that the County violated Title VII because it fired Bostock “based on his sexual orientation and failure to conform to a gender stereotype.”
17-1618 J.A. 11. The district court dismissed the complaint on the ground that Eleventh Circuit precedent
foreclosed a Title VII claim based on sexual orientation,
17-1618 Pet. App. 31 (citing Evans, supra), and because
the court found “not a single mention of or fact supporting gender stereotype discrimination” in the operative
complaint, id. at 32. The court of appeals affirmed,

 6
agreeing that Evans foreclosed the sexual-orientation
claim and finding that Bostock had “abandoned” the
gender-stereotyping claim by failing to raise it on appeal. Id. at 3.
3. a. Donald Zarda, a gay man, was employed by Altitude Express as a skydiving instructor. 17-1623 Pet.
App. 11. In June 2010, Zarda told a female client that
he was gay “to assuage any concern [she] might have
about being strapped to a man for a tandem skydive.”
Ibid. The client, however, said that “Zarda inappropriately touched her and disclosed his sexual orientation to
excuse his behavior.” Id. at 12. Altitude Express fired
Zarda based on the client’s complaints. Ibid. Zarda
timely filed a charge with the EEOC, alleging that he
was actually fired “because [he] did not conform [his]
appearance and behavior to sex stereotypes” and was
thus “discriminated against, at least in part because of
[his] sex.” Id. at 178. Zarda further averred: “I am not
making this charge on the grounds that I was discriminated on the grounds of my sexual orientation.” Ibid.
Zarda received a right-to-sue letter from the EEOC.
17-1623 Pet. Br. 4.
Zarda filed suit in federal district court against Altitude Express and its owner, alleging (as relevant here)
that he “was fired because his behavior did not conform
to sex stereotypes,” in violation of Title VII. 17-1623 J.A.
28 (¶ 51). The district court granted summary judgment
to the defendants on that claim, finding that Zarda had
not adduced sufficient evidence to support it. 17-1623 Pet.
App. 162-165. A panel of the Second Circuit affirmed,
observing that Zarda’s estate (Zarda having died in a
skydiving accident before the appeal) had not appealed
the district court’s finding that he “failed to establish
the requisite proximity between his termination and his

 7
failure to conform to gender stereotypes.” Id. at 150.
The panel also explained that binding circuit precedent
foreclosed a Title VII claim based directly on discrimination because of sexual orientation. Id. at 149-150 (citing Simonton, supra).
b. Following rehearing en banc, the Second Circuit
reversed. 17-1623 Pet. App. 1-140.
i. Overturning its prior holdings in Simonton and
other cases, the court of appeals concluded that Title
VII’s prohibition on discrimination “because of * * * sex”
encompasses discrimination because of sexual orientation. 17-1623 Pet. App. 21-53. The court relied on three
distinct rationales.
First, the court of appeals reasoned that “because
sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.” 17-1623 Pet. App. 21.
The court observed that “[i]n the context of sexual orientation, a woman who is subject to an adverse employment action because she is attracted to women would
have been treated differently if she had been a man who
was attracted to women.” Id. at 34.
Second, the court of appeals determined that sexualorientation discrimination is based on the stereotype
that people should be attracted only to members of the
opposite sex. 17-1623 Pet. App. 35-43. The court thus
concluded that “an employer who discriminates against
employees based on assumptions about the gender to
which the employees can or should be attracted has engaged in sex-discrimination irrespective of whether the
employer uses a double-edged sword that cuts both men
and women.” Id. at 43.
Third, the court of appeals held that discrimination
because of sexual orientation is a form of associational

 8
discrimination because it is based on opposition to association between particular sexes. 17-1623 Pet. App. 43-53.
The court explained that “if a male employee married to
a man is terminated because his employer disapproves
of same-sex marriage, the employee has suffered associational discrimination based on his own sex because
‘the fact that the employee is a man instead of a woman
motivated the employer’s discrimination against him.’ ”
Id. at 47 (citation omitted).
ii. Judge Jacobs concurred in part and in the result
(17-1623 Pet. App. 62-68), agreeing only with the majority’s associational-discrimination rationale. Judge
Cabranes concurred only in the judgment on the ground
that “Zarda’s sexual orientation is a function of his sex.”
Id. at 68. Judges Sack and Lohier also filed concurring
opinions. Id. at 69-72.
iii. Judge Lynch dissented (17-1623 Pet. App. 72-136)
on the ground that when Congress enacted Title VII in
1964, it “opted to prohibit only certain categories of unfair
discrimination,” and “did not then prohibit, and alas has
not since prohibited, discrimination based on sexual orientation.” Id. at 96. Judge Lynch explained that the
majority’s contrary reasoning would necessarily prohibit all sex-specific bathrooms, dress codes, and physicalfitness standards. Id. at 100-103.
Judge Lynch also disagreed with the majority’s view
that sexual-orientation discrimination is based on impermissible sex stereotyping, because “the homophobic employer is not deploying a stereotype about men or about
women to the disadvantage of either sex.” 17-1623 Pet.
App. 117. Instead, Judge Lynch explained, the employer “is expressing disapproval of the behavior or
identity of a class of people that includes both men and

 9
women” based on “a belief about what all people ought
to be or do.” Ibid.
Finally, Judge Lynch rejected the majority’s conclusion that sexual-orientation discrimination constitutes
associational discrimination. 17-1623 Pet. App. 118-125.
Judge Lynch observed that unlike employers who discriminate against employees in interracial relationships—
and thus necessarily discriminate against those employees because of their race—employers who discriminate
against employees in same-sex relationships do not do
so because of the employee’s sex: “[t]here is no allegation in this case, nor could there plausibly be, that the
defendant discriminated against Zarda because it had
something against men.” Id. at 121. Judge Lynch emphasized that when, as here, courts are “interpreting an
act of Congress, [they] need to respect the choices made
by Congress about which social problems to address,
and how to address them.” Id. at 135.
iv. Judges Livingston (17-1623 Pet. App. 136-140) and
Raggi (id. at 140) filed dissenting opinions expressing
their agreement with Judge Lynch’s statutory analysis.
SUMMARY OF ARGUMENT

A. Title VII’s prohibition on discrimination because
of sex does not bar discrimination because of sexual orientation. The ordinary meaning of “sex” is biologically
male or female; it does not include sexual orientation.
Congress has recognized in other antidiscrimination
statutes that sexual orientation is different from sex.
An employer thus discriminates “because of * * * sex”
under Title VII if it treats members of one sex worse
than similarly situated members of the other sex. Discrimination on the basis of sexual orientation, standing
alone, does not satisfy that standard.

 10
Even if sexual orientation were a “function” of sex,
that would be insufficient, standing alone, to violate Title VII; otherwise, all sex-specific practices, including
bathrooms, dress codes, and physical fitness standards,
would be unlawful. Likewise misguided is the simplistic
observation that sexual-orientation discrimination treats
a female employee in a relationship with a woman worse
than a male employee in a relationship with a woman.
That comparison is logically flawed because it changes
both the sex and the sexual orientation of the comparator; the two hypothetical employees are thus not similarly situated. The correct comparison is between a female employee in a same-sex relationship and a male
employee in a same-sex relationship; they would be similarly situated—and they would be treated the same.
B. Sexual-orientation discrimination is not impermissible sex stereotyping because stereotyping is not a
freestanding violation of Title VII; it is forbidden only
insofar as it results in disparate treatment of similarly
situated members of opposite sexes. For example, one
could easily characterize a dress code requiring men to
wear neckties as enforcing stereotypes about proper
men’s business attire. Yet nobody contends that Title
VII prohibits all such sex-specific dress codes. By contrast, hiring only “masculine” men and “feminine”
women would violate Title VII not because it relies on
stereotypes per se, but because it treats effeminate men
worse than effeminate women—and likewise masculine
women worse than masculine men. Importantly, Title
VII prohibits such disparate treatment regardless of
sexual orientation. A gay man fired for being too effeminate has just as strong a claim as a straight man fired
for that reason; he is not carved out from Title VII’s
protections.

 11
C. Sexual-orientation discrimination does not constitute improper associational discrimination in the way
that discrimination against employees in interracial relationships does. Because a difference in race rarely makes
two otherwise similarly situated individuals dissimilar,
nearly all race-based distinctions constitute unlawful
race-based discrimination. By contrast, sex-based distinctions are not invariably invidious because they can
reflect physiological differences between men and
women, as the lawfulness of sex-specific bathrooms
makes clear. An employer who discriminates against
employees in same-sex relationships thus does not violate Title VII as long as it treats men in same-sex relationships the same as women in same-sex relationships.
D. Congress has ratified the settled understanding
that Title VII does not prohibit sexual-orientation discrimination. Bills to add sexual orientation to Title VII
have been introduced in every Congress since 1975, yet
Congress has declined to enact them. And when Congress overhauled Title VII in 1991, it did not extend the
statute to cover sexual-orientation discrimination, despite being aware of an “absence of Federal laws” prohibiting such discrimination. 137 Cong. Rec. 5261, 6161.
Indeed, not long ago every court of appeals to have considered the issue, along with the EEOC and the Department of Justice, unanimously agreed that Title VII does
not prohibit sexual-orientation discrimination. Congress’s consistent refusal to change that aspect of Title
VII in the face of that uniform understanding, while at
the same time changing other aspects of Title VII and expressly barring sexual-orientation discrimination in other
statutes, supports adhering to that understanding now.

 12
ARGUMENT
TITLE VII DOES NOT PROHIBIT DISCRIMINATION
BECAUSE OF SEXUAL ORIENTATION

The question here is not whether Congress may or
should prohibit employment discrimination because of
sexual orientation, but whether Congress did so in 1964.
Title VII’s plain language, this Court’s previous decisions interpreting that statute, and the import of congressional conduct over the years make clear that Congress did not. Congress of course remains free to legislate in this area; and employers, including governmental employers, remain free to offer greater protections
to their workers than Title VII requires. Cf. William P.
Barr, U.S. Department of Justice Equal Employment
Opportunity Policy (Apr. 4, 2019) (reiterating that “no
applicant for employment or employee of our Department will be denied equal opportunity because of * * *
sexual orientation, * * * gender identity, * * * or any
other nonmerit-based factor”). But those are policy determinations currently left to political and private actors, not the courts.
A. Discrimination Because Of Sexual Orientation Does Not
Constitute Discrimination Because Of Sex
1. “Sex” does not mean “sexual orientation”

Title VII’s prohibition on discrimination “because of
* * * sex,” 42 U.S.C. 2000e-2(a)(2), does not encompass
discrimination based on sexual orientation for the simple reason that “sex” does not mean “sexual orientation.” Because Title VII does not define the term “sex,”
the term should “be interpreted as taking [its] ordinary,
contemporary, common meaning.” Sandifer v. United
States Steel Corp., 571 U.S. 220, 227 (2014) (citation

 13
omitted). As Judge Lynch recognized below, “[i]n common, ordinary usage in 1964—and now, for that matter—
the word ‘sex’ means biologically male or female; it does
not also refer to sexual orientation.” 17-1623 Pet. App.
89-90 (citation omitted). Contemporaneous dictionaries
defined “sex” as “refer[ring] to [the] physiological distinction[]” between “male and female,” Webster’s New
International Dictionary 2296 (2d ed. 1957), or as “[t]he
sum of the peculiarities of structure and function that
distinguish a male from a female organism; the character of being male or female,” Black’s Law Dictionary
1541 (4th ed. 1951). See, e.g., Hively v. Ivy Tech Cmty.
Coll., 853 F.3d 339, 362-363 (7th Cir. 2017) (en banc)
(Sykes, J., dissenting) (collecting dictionaries); Gov’t
Br. at 18 n.5, R.G. & G.R. Harris Funeral Homes, Inc.
v. EEOC, No. 18-107 (collecting more). Neither Zarda
nor Bostock has identified any contemporaneous dictionary or legal reference defining “sex” as including or
referring to sexual orientation.
Even judges who have concluded that Title VII prohibits discrimination on the basis of sexual orientation
acknowledge that in 1964 “sex” did not refer to “sexual
orientation.” In his concurring opinion below, Judge Jacobs recognized that “the word ‘sex’ as a personal characteristic refers to the male and female of the species”
and that although “sexual orientation is a ‘function of
sex’ ” it “does not amount to sex itself as a term in Title
VII.” 17-1623 Pet. App. 65-66. So too Judge Posner,
who observed that “what is certain is that the word ‘sex’
in Title VII had no immediate reference to homosexuality” in 1964 and that he and his colleagues, “who are
judges rather than members of Congress, are imposing
on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not

 14
have accepted.” Hively, 853 F.3d at 353, 357; see id. at
357 (“ ‘Sex’ in 1964 meant gender, not sexual orientation.”); id. at 357 (nevertheless reading the statute to
encompass sexual-orientation discrimination to “avoid
placing the entire burden of updating old statutes on the
legislative branch”).
That the term “sex” in Title VII does not include sexual orientation is confirmed by Congress’s express use of
“sexual orientation” as a trait distinct from “sex” or “gender” in other antidiscrimination statutes. For example,
Congress has prohibited discrimination in certain federally funded programs “on the basis of actual or perceived
race, color, religion, national origin, sex, gender identity
* * * , sexual orientation, or disability.” 34 U.S.C.
12291(b)(13)(A) (Supp. V 2017) (emphasis added). Similarly, Congress has prohibited acts or attempts to cause
bodily injury “because of the actual or perceived religion,
national origin, gender, sexual orientation, gender identity, or disability of any person,” 18 U.S.C. 249(a)(2)(A)
and (c)(4) (emphasis added); provided federal assistance
for state, local, and tribal investigations of crimes “motivated by prejudice based on the actual or perceived race,
color, religion, national origin, gender, sexual orientation,
gender identity, or disability of the victim,” 34 U.S.C.
30503(a)(1)(C) (Supp. V 2017) (emphasis added); and defined a “hate crime” for purposes of sentencing enhancements as one committed “because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person,” Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, Tit. XXVIII, § 280003(a), 108 Stat.
2096 (emphasis added); see Hively, 853 F.3d at 364
(Sykes, J., dissenting) (documenting additional examples). In each of those statutes, Congress listed “sexual

 15
orientation” as an additional basis for a discrimination
claim, in contrast to its description of pregnancy discrimination as being “include[d]” within “sex” discrimination
itself. 42 U.S.C. 2000e(k).
Those other statutes demonstrate not only that Congress knows how to prohibit discrimination based on
sexual orientation, but that it considers sexual-orientation
discrimination to be distinct from—and not a subset
of—sex discrimination. Various state and local antidiscrimination statutes confirm that customary and commonplace understanding of the distinction between sex
and sexual orientation. See, e.g., D.C. Code § 2-1402.31
(LexisNexis 2001); 775 Ill. Comp. Stat. Ann. 5/1-103
(West 2011); see also Hively, 853 F.3d at 364 (Sykes, J.,
dissenting); 17-1623 Pet. App. 104-105 & n.21 (Lynch,
J., dissenting). The absence of “sexual orientation”
from Title VII’s list of protected traits thus demonstrates that the statute does not prohibit discrimination
on that basis. See Wittmer v. Phillips 66 Co., 915 F.3d
328, 338 (5th Cir. 2019) (Ho, J., concurring) (“If Congress
had meant to prohibit sexual orientation * * * discrimination, surely the most straightforward way to do so
would have been to say so—to add ‘sexual orientation’
* * * to the list of classifications protected under Title
VII.”).
To be sure, “statutory prohibitions often go beyond
the principal evil to cover reasonably comparable evils.”
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
79 (1998). But that unremarkable observation is not a
license to rewrite or expand a statute to cover things
that are not encompassed by the statutory text. In Oncale, for example, the Court concluded that under the
plain text of Title VII, a male employer can be found to
have sexually harassed a male employee “because of ”

 16
the latter’s “sex” if the employer would not harass similarly situated women, even though such harassment
was not the “principal evil” Congress sought to eliminate. Id. at 79-80. Here, by contrast, the ordinary
meaning of “sex” does not include sexual orientation—
not today, and not in 1964. No “ordinary ‘fluent speaker
of the English language’ ” could conclude otherwise.
17-1623 Pet. App. 112 (Lynch, J., dissenting) (citation
omitted); see id. at 97.
2. Discrimination because of sexual orientation does
not involve treating members of one sex less favorably
than similarly situated members of the other

a. This Court has emphasized that Title VII “is directed only at ‘discrimination . . . because of . . . sex.’ ”
Oncale, 523 U.S. at 80 (brackets omitted). The “ ‘normal
definition of discrimination’ is ‘differential treatment’ ”
or, more specifically, “ ‘less favorable’ treatment.”
Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 174
(2005) (citations omitted). Accordingly, the “central focus of the inquiry” in a Title VII case alleging sex discrimination “is always whether the employer is treating
‘some people less favorably than others because of their
* * * sex.’ ” Furnco Constr. Corp. v. Waters, 438 U.S.
567, 577 (1978) (citation omitted). To prevail in that inquiry, a plaintiff must establish that “an employer intentionally treated a complainant less favorably than employees with the ‘complainant’s qualifications’ but outside the complainant’s protected class.” Young v. United
Parcel Serv., Inc., 135 S. Ct. 1338, 1345 (2015) (citation
omitted); see Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 258 (1981) (explaining that “it is the plaintiff ’s task to demonstrate that similarly situated employees were not treated equally”).

 17
Sexual-orientation discrimination does not satisfy
that standard. Instead, it involves less favorable treatment of gay or bisexual employees—men and women
alike. So long as the employer treats similarly situated
individuals of both sexes equally, it has not discriminated against either on the basis of sex. Unfavorable
treatment of a gay or lesbian employee as such is not the
consequence of that individual’s sex, but instead of an
employer’s policy concerning a different trait—sexual
orientation—that Title VII does not protect.
The Second Circuit’s observation, echoed by Zarda
(at 18) and Bostock (at 14), that “sexual orientation is a
function of sex,” 17-1623 Pet. App. 21, is irrelevant. If
merely being “a function” of sex were enough for employment terms and conditions to violate Title VII,
every sex-specific workplace policy—from sex-specific
dress codes to sex-specific employee bathrooms—would
violate Title VII, as Judge Lynch recognized. See id. at
100-102. Neither Zarda nor Bostock has provided a limiting principle to avoid that absurd result. As this Court
has explained, “[t]he critical issue, 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.” Oncale, 523 U.S. at 80 (quoting Harris v. Forklift Sys.,
Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring)).
Asking whether an employment condition is “a function” of sex does nothing to further that “critical” inquiry; an employment practice that unquestionably is “a
function” of sex does not necessarily violate Title VII.
Instead, the relevant question is whether an employment practice disadvantages members of one sex compared to similarly situated members of the other.

 18
For example, sex-specific employee bathrooms comply with Title VII because they generally do not treat
members of one sex worse than similarly situated members of the other; to the contrary, separate male and female bathrooms “protect the privacy of both sexes.”
Wittmer, 915 F.3d at 334 (Ho, J., concurring); see Doe
v. Luzerne County, 660 F.3d 169, 175-176 (3d Cir. 2011)
(collecting cases). Similarly, courts have “long recognized that companies may differentiate between men
and women in appearance and grooming policies” when
those policies “do[] not unreasonably burden one gender more than the other.” Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1109-1110 (9th Cir. 2006) (en
banc). And an employer may use “physical fitness
standards that distinguish between the sexes on the basis of their physiological differences” as long as they
“impose an equal burden of compliance on both men and
women.” Bauer v. Lynch, 812 F.3d 340, 351 (4th Cir.),
cert. denied, 137 S. Ct. 372 (2016) (No. 15-1489). As
those examples demonstrate, employment conditions
that are “a function” of sex nevertheless comply with
Title VII as long they do not burden one sex more than
the other.
Applying that test, sexual-orientation discrimination
does not violate Title VII because it does not expose any
women to disadvantageous workplace conditions that
similarly situated men are spared from enduring—or
vice versa. Even if such discrimination “requires noticing the gender of the person in question,” that “simplistic” observation “has nothing to do with the type of unfairness in employment that Congress legislated
against in adding ‘sex’ to the list of prohibited categories of discrimination in Title VII.” 17-1623 Pet. App.
112 (Lynch, J., dissenting). An employer who treats

 19
similarly situated men and women equally—affording
the same terms and conditions of employment to heterosexual men and women alike, and the same terms and
conditions of employment to gay or bisexual men and
women alike—therefore has not engaged in “discrimination . . . because of . . . sex.” Oncale, 523 U.S. at 80
(brackets omitted).
b. The Second Circuit’s attempt to ferret out sex discrimination by applying what it called a “comparative
test” is misguided. 17-1623 Pet. App. 29. According to
the court of appeals, sexual-orientation discrimination
constitutes improper sex discrimination because, for instance, “a woman who is subject to an adverse employment action because she is attracted to women would
have been treated differently if she had been a man who
was attracted to women.” Id. at 34; see 17-1618 Pet. Br.
15-16 (asserting that sexual-orientation discrimination
fails that “simple test”). That comparison is flawed for
two reasons.
First, the comparison changes both the sex (from female to male) and sexual orientation (from gay to
straight) of the comparator employee. A proper comparison would change the sex while holding the sexual
orientation constant. Only a relative difference in treatment in that scenario would constitute sex discrimination. As Judge Sykes explained, a “comparison can’t do
its job of ruling in sex discrimination as the actual reason for the employer’s decision * * * if we’re not scrupulous about holding everything constant except the
plaintiff ’s sex.” Hively, 853 F.3d at 366 (emphasis omitted). For example, if “an employer is willing to hire gay
men but not lesbians, then the comparative method has
exposed an actual case of sex discrimination.” Ibid. But

 20
if an employer treats gay men and women the same, it
has not engaged in sex discrimination.
Second, a mechanical application of the Second Circuit’s comparative test would result in the conclusion that
all sex-specific employment conditions—such as separate
male and female bathrooms—would violate Title VII.
After all, a man would never be prohibited from using
the women’s bathroom if he were a woman. The court
of appeals brushed past that obvious flaw in its analysis
by declaring “sex-specific bathroom and grooming policies” to be “a separate question from [its] inquiry”—
without explaining how either the analysis or the answer would be any different. 17-1623 Pet. App. 34. Rote
application of the comparative test to sexual-orientation
discrimination does not resolve the “critical issue” of
“whether members of one sex are exposed to disadvantageous terms or conditions of employment to which
members of the other sex are not exposed.” Oncale,
523 U.S. at 80 (citation omitted).
The Second Circuit’s reliance (17-1623 Pet. App. 29-31)
on City of Los Angeles Department of Water & Power
v. Manhart, 435 U.S. 702 (1978), and Price Waterhouse
v. Hopkins, 490 U.S. 228 (1989), is misplaced. Manhart
involved a facially discriminatory policy that required
female employees to make higher monthly contributions to an employer-operated pension fund than male
employees, on the ground that the average group life
expectancy for women was higher than that for men.
435 U.S. at 704-705. Price Waterhouse involved an employer who passed over a woman for partnership because she was too aggressive and “macho,” and was “a
lady using foul language,” even though the employer
would have promoted a similarly situated man were he
just as aggressive and foul-mouthed. 490 U.S. at 235,

 21
250-251 (plurality opinion) (citations omitted). According to the Second Circuit, in both cases this Court employed a comparative test in which it changed the sex
and the asserted trait (life expectancy in Manhart, aggressiveness in Price Waterhouse) of the hypothetical
comparator, thereby justifying the court of appeals’
failure to hold sexual orientation constant in its own
comparative test here. See 17-1623 Pet. App. 30. That
contention is incorrect.
In determining that the policy in Manhart violated
Title VII, this Court found of “critical importance” that
even individual women who could show they had the
same life expectancy as a similarly situated man still
had to make higher monthly contributions “simply because each of them is a woman, rather than a man.”
435 U.S. at 711. Therefore, changing the employee’s sex
from male to female while holding the individual’s life
expectancy constant would result in a higher pension
contribution. Likewise in Price Waterhouse, changing
the employee’s sex from female to male while holding
aggressiveness constant would result in a different promotion outcome. The court of appeals thus erred in relying on Manhart and Price Waterhouse to justify its
flawed comparative test here.
c. Zarda errs in relying (at 39-40) on Dothard v.
Rawlinson, 433 U.S. 321 (1977), for the proposition that
“even a single employment policy that applies to both
men and women can discriminate because of sex if the
operation of the policy depends on the sex of the individual employee.” 17-1623 Pet. Br. 39. So framed, that
proposition would result in the invalidation of sex-specific
bathrooms and dress codes, as they too “appl[y] to both
men and women” and “depend[] on the sex of the individual employee.” Ibid. Dothard did not sweep so

 22
broadly; it involved two provisions related to employment in single-sex prisons: a statute establishing minimum height and weight requirements for prison guards,
and a regulation allowing only men to serve in “positions requiring continual close physical proximity to inmates” in male-only prisons (and likewise women in
female-only prisons). 433 U.S. at 325. This Court agreed
that the plaintiffs had made out a prima facie case
that the statutory height and weight requirements had
a disparate impact on women, id. at 331; but that ruling
is inapposite here because no one argues that sexualorientation discrimination has a disparate impact on
one sex.
As for the regulation, the Court correctly found it to
“explicitly discriminate[] against women on the basis of
their sex” because even women who satisfied the statutory height and weight requirements were prohibited
from serving in the specified positions at male-only prisons. Dothard, 433 U.S. at 332. That ruling also is inapposite here; discrimination on the basis of sexual orientation does not “explicitly discriminate[] against women
[or men] on the basis of their sex,” as the regulation in
Dothard did on its face. Ibid.
Similarly misplaced is Zarda’s and Bostock’s reliance on so-called “sex plus” cases, which involve alleged
discrimination on the basis of sex combined with another trait (i.e., discrimination against the subset of
men or women who have that additional trait). See
17-1623 Pet. Br. 20-22; 17-1618 Pet. Br. 16-17. For example, Zarda incorrectly asserts (at 20) that the claims
here “mirror[] the claim” in Phillips v. Martin Marietta
Corp., 400 U.S. 542 (1971) (per curiam). There, this
Court held that an employer’s policy barring the hiring
of women (but not men) with preschool-age children was

 23
facially discriminatory on the basis of sex. Id. at 543544. Although the policy in Phillips did not discriminate solely on the basis of sex, it treated the subset of
women with preschool-age children worse than the similarly situated subset of men (i.e., men with preschoolage children). That is why it violated Title VII.
This Court’s decisions in Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983), and
International Union v. Johnson Controls, Inc., 499 U.S.
187 (1991), likewise are distinguishable. Cf. 17-1618 Pet.
Br. 16; 17-1623 Pet. Br. 21-22. Newport News involved
an employer-sponsored health plan that provided less
favorable benefits to spouses of male employees than to
spouses of female employees. 462 U.S. at 671-672. Johnson Controls involved a “fetal-protection policy” prohibiting “fertile women,” but not “[f ]ertile men,” from taking certain jobs involving exposure to high concentrations of lead, “[d]espite evidence in the record about the
debilitating effect of lead exposure on the male reproductive system” as well. 499 U.S. at 197-198. In both
cases, therefore, the employer treated subsets of men
or women worse than similarly situated subsets of the
opposite sex. By contrast, sexual-orientation discrimination, standing alone, does not involve such treatment:
a gay or bisexual man is treated the same as a lesbian
or bisexual woman.
B. Discrimination Because Of Sexual Orientation Does Not
Constitute Prohibited Sex Stereotyping

Sexual-orientation discrimination also does not improperly discriminate based on sex stereotypes. Sex
stereotyping is not a freestanding violation of Title VII;
instead, it is forbidden only insofar as it results in “disparate treatment of men and women.” Manhart, 435 U.S.

 24
at 707 n.13 (emphasis added; citation omitted); see Wittmer, 915 F.3d at 339 (Ho, J., concurring) (observing that
“under Price Waterhouse, sex stereotyping is actionable only to the extent it provides evidence of favoritism
of one sex over the other”). As the Price Waterhouse
plurality explained, “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.” 490 U.S. at 251; see Hamm v. Weyauwega Milk Prods., Inc., 332 F.3d 1058, 1068 (7th Cir.
2003) (Posner, J., concurring) (“ ‘Sex stereotyping’ should
not be regarded as a form of sex discrimination, though
it will sometimes, as in the Hopkins case, be evidence of
sex discrimination.”), overruled by Hively, supra.
Accordingly, “employment decisions cannot be predicated on mere ‘stereotyped’ impressions about the characteristics of males or females,” such as “[m]yths and
purely habitual assumptions about a woman’s inability
to perform certain kinds of work” that result in an individual woman’s being treated worse than a similarly situated man. Manhart, 435 U.S. at 707. Likewise, “an
employer who acts on the basis of a belief that a woman
cannot be aggressive, or that she must not be, has acted
on the basis of gender” if the employer otherwise treats
aggressive men more favorably. Price Waterhouse,
490 U.S. at 250 (plurality opinion). For sex-stereotyping
claims, as for all Title VII disparate-treatment claims, the
“critical issue” remains “whether members of one sex
are exposed to disadvantageous terms or conditions of
employment to which members of the other sex are not
exposed.” Oncale, 523 U.S. at 80 (citation omitted).
Sexual-orientation discrimination, standing alone,
does not result in that kind of disparate treatment. The
Second Circuit (17-1623 Pet. App. 35-43), Zarda (at 23-31),

 25
and Bostock (at 23-29) thus miss the mark in asserting
that sexual-orientation discrimination relies on a stereotype or gender norm about opposite-sex attraction. As
a threshold matter, that is not necessarily true: an employer may be relying on reasons that have nothing to
do with gender norms, such as moral or religious beliefs
about sexual, marital, and familial relationships. But even
if true, it would be a sex-neutral stereotype that therefore does not violate Title VII. See Hively, 853 F.3d at
370 (Sykes, J., dissenting). Indeed, treating such sexneutral stereotypes as prohibited by Title VII would
lead to absurd results. For example, one could just as
easily assert that a woman’s insistence on using the
men’s bathroom does not conform to stereotypes about
bathroom norms, or that a man’s insistence on wearing
a shirt without a necktie to an oral argument does not
conform to stereotypes about proper men’s courtroom
attire. Yet no one can seriously contend that Manhart
and Price Waterhouse outlawed all sex-specific bathrooms, dress codes, or physical-fitness standards, which
courts have uniformly upheld absent an unequal burden
on the sexes. See p. 18, supra.
Zarda likewise misses the mark in contending (at 38)
that “a company that imposes female sex stereotypes on
women and male sex stereotypes on men does not thereby
insulate itself from liability under Title VII.” That is
true, but irrelevant. To use Zarda’s example (at 38-39),
an employer who “fires both a woman like Hopkins for
being too ‘macho’ and a man for not being sufficiently
‘manly’ ” does not violate Title VII because of a freestanding ban on stereotypes. Rather, the employer violates Title VII because it would be treating a subset of
women (macho women) worse than a similarly situated
subset of men (macho men) and—in a separate act of

 26
discrimination—treating a subset of men (effeminate
men) worse than a similarly situated subset of women
(effeminate women). Each practice separately violates
Title VII because each results in “disparate treatment
of men and women.” Manhart, 435 U.S. at 707 n.13 (citation omitted). By contrast, sexual-orientation discrimination, standing alone, does not result in any subset of either sex being treated worse than a similarly
situated subset of the opposite sex.
To be clear, Title VII prohibits disparate treatment
of men and women regardless of sexual orientation. Gay,
lesbian, and bisexual employees, no less than straight
employees, may invoke Price Waterhouse if they are
subjected to gender-based stereotypes; a gay man who
is fired for being too effeminate has just as strong a
claim as a straight man who is fired for that reason. See
Prowel v. Wise Bus. Forms, Inc., 579 F.3d 285, 290
(3d Cir. 2009). “[G]ay, lesbian, and bisexual individuals
do not have less protection under Price Waterhouse
against traditional gender stereotype discrimination
than do heterosexual individuals.” Christiansen v. Omnicon Grp., Inc., 852 F.3d 195, 200-201 (2d Cir. 2017)
(per curiam). Accordingly, a holding that Title VII does
not prohibit sexual-orientation discrimination in no way
“carv[es] out lesbian, gay, and bisexual employees from
the protections Title VII affords.” 17-1623 Pet. Br. 31.
Nor would such a holding be “profoundly unworkable,” as Bostock contends. 17-1618 Pet. Br. 47; see id.
at 47-57. To return to the example above, if an employer
fires an effeminate gay man, but does not fire effeminate women, the task under Price Waterhouse and
42 U.S.C. 2000e-2(m) would be to determine whether
the man’s effeminacy was a significant motivating factor in the firing or whether he was instead fired solely

 27
on the basis of his sexual orientation. The former would
be evidence of impermissible disparate treatment (because he would have been treated less favorably than
effeminate women); the latter would not. As in all Title
VII cases, the answer depends on whether a similarly
situated employee without the asserted trait would be
treated more favorably. For example, if the employer
would not fire masculine gay men, that suggests it is
impermissibly relying on effeminacy, not sexual orientation. The same conclusion might be inferred if the
employer also fires effeminate straight men. By contrast, if the employer would fire all gay men (masculine
and effeminate alike) but retain effeminate straight
men, that suggests it is relying on sexual orientation rather than effeminacy.
As in all Title VII cases, determining those answers
may require resolving difficult and contested factual issues. But that neither makes the statute unworkable
nor justifies judicially rewriting the statute to avoid
such difficulties. See Sebelius v. Cloer, 569 U.S. 369, 381
(2013). And although Bostock asserts that courts have
“gone off the tracks” in applying Price Waterhouse,
17-1618 Pet. Br. 54 (citation omitted), that largely is because they have incorrectly treated sex stereotyping as
a standalone violation of Title VII instead of merely as
evidence of disparate treatment of members of one sex
compared to similarly situated members of the other.
Cf. Hamm, 332 F.3d at 1062. A correct understanding
of sex-stereotyping claims under Price Waterhouse
would solve that problem.

 28
C. Discrimination Because Of Sexual Orientation Does Not
Constitute Improper Associational Discrimination

Zarda (at 31-36) and Bostock (at 18-23) contend that
sexual-orientation discrimination violates Title VII because it amounts to “associational discrimination” on
the basis of sex in the same way that discrimination
against employees in interracial relationships amounts
to discrimination on the basis of race. See 17-1623 Pet.
App. 43-53. That contention is incorrect and the analogy to racial discrimination is fundamentally inapposite.
In Loving v. Virginia, 388 U.S. 1 (1967), this Court
observed that it “has consistently repudiated ‘distinctions between citizens solely because of their ancestry’
as being ‘odious to a free people whose institutions are
founded upon the doctrine of equality.’ ” Id. at 11 (brackets and citation omitted). Reflecting the fact that racebased distinctions often are rooted in beliefs that one
race is superior to another, see ibid., nearly all such distinctions are invidious classifications that “seldom provide a relevant basis for disparate treatment,” Fisher v.
University of Texas, 136 S. Ct. 2198, 2208 (2016) (citation omitted). Employees who otherwise are similarly
situated thus do not become dissimilar merely by virtue
of a racially based distinction (such as being in an interracial relationship). Cf. Michael M. v. Superior Court,
450 U.S. 464, 478 (1981) (Stewart, J., concurring) (observing that “people of different races are always similarly situated”). So even if, for example, an employer
refuses to hire both white and black applicants in interracial marriages, it violates Title VII because it has
treated each subset of applicants (white applicants with
black spouses and black applicants with white spouses)
worse than a similarly situated subset of a different race

 29
(i.e., black applicants with black spouses and white applicants with white spouses, respectively). See pp. 25-26,
supra.
That analysis does not extend to sex discrimination.
Unlike race-based distinctions, sex-based distinctions are
not invariably invidious, as for instance when they reflect physiological differences between men and women.
See 17-1623 Pet. App. 99 (Lynch, J., dissenting). So unlike
with race, a difference in sex can make two otherwise
similarly situated people dissimilar “in certain circumstances.” Michael M., 450 U.S. at 469 (plurality opinion).
That is why separate male and female bathrooms do not
categorically violate Title VII—even though separate
bathrooms for employees of different races would. See
17-1623 Pet. App. 103 (Lynch, J., dissenting). As this
Court has recognized, “[p]hysical differences between
men and women * * * are enduring” and “ ‘the two sexes
are not fungible.’ ” United States v. Virginia, 518 U.S.
515, 533 (1996) (brackets and citation omitted). Indeed,
those differences may even “require alterations” to previously sex-neutral policies to make them sex-specific.
Id. at 550 n.19. A distinction based on sex is therefore
“discrimination” within the meaning of Title VII only if
it results in treating members of one sex worse than
similarly situated members of the other.
It follows that an employer who discriminates
against employees in same-sex relationships does not
engage in discrimination because of “sex” as long as the
employer treats men in same-sex relationships the
same as women in same-sex relationships. By contrast,
the arbitrary and stigmatizing nature of race-based distinctions means that an employer who discriminates
against employees in interracial relationships per se
treats similarly situated employees differently on the

 30
basis of race. The ordinary meanings of “discrimination
because of race” and “discrimination because of sex” reflect that commonsense legal understanding. An employer who refuses to hire an applicant in an interracial
relationship would rightly be branded a racist. But no
ordinary speaker of English would call an employer who
refuses to hire an applicant in a same-sex relationship a
sexist.
D. Congress Has Ratified The Settled Understanding That
Title VII Does Not Prohibit Discrimination Because Of
Sexual Orientation

This Court has long held that “Congress is presumed
to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when
it re-enacts a statute without change.” Lorillard v.
Pons, 434 U.S. 575, 580 (1978). In Texas Department of
Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015), for example,
the Court observed that in 1988, when Congress
amended the Fair Housing Act (FHA), 42 U.S.C. 3601
et seq., it “was aware of th[e] unanimous precedent” of
the courts of appeals holding that the FHA authorized
disparate-impact claims, and “with that understanding,
[Congress] made a considered judgment to retain the
relevant statutory text.” 135 S. Ct. at 2519. The Court
reasoned that “Congress’ decision in 1988 to amend the
FHA while still adhering to the operative language
* * * is convincing support for the conclusion that Congress accepted and ratified” the prevailing interpretation of that language. Id. at 2520. As the Court explained, if “a word or phrase has been . . . given a uniform interpretation by inferior courts . . . , a later version of that act perpetuating the wording is presumed

 31
to carry forward that interpretation.” Ibid. (citation
omitted).
Here, Congress reenacted Title VII’s operative provisions in the Civil Rights Act of 1991 despite the unanimous interpretation at the time—binding in as many as
six circuits and applied nationwide by the EEOC—that
the statute did not prohibit sexual-orientation discrimination. See pp. 3-4, supra. No court of appeals had held
otherwise. Congress is presumed to have been aware of
that uniform and unanimous precedent. See Inclusive
Communities, 135 S. Ct. at 2519-2520; Lorillard, 434 U.S.
at 580-581. Indeed, the same Congress that enacted the
1991 amendments just months earlier had declined to
pass a pair of bills to add “affectional or sexual orientation” to Title VII. See pp. 3-4, supra. As its sponsors
themselves recognized, the proposed legislation was
necessary because sex discrimination is different from
sexual-orientation discrimination and there was an “absence of Federal laws” prohibiting the latter. 137 Cong.
Rec. 5261, 6161 (1991) (statements of Sen. Cranston and
Rep. Weiss). That express recognition belies any “inference that the existing legislation already incorporated the offered change.” Pension Benefit Guar. Corp.
v. LTV Corp., 496 U.S. 633, 650 (1990) (citation omitted).
The argument for congressional ratification of the
uniform interpretation of Title VII’s language is particularly strong here because the 1991 amendments expressly abrogated several decisions that Congress believed had “sharply cut back on the scope and effectiveness” of the statute. Ricci v. DeStefano, 557 U.S. 557,
624 (2009) (Ginsburg, J., dissenting) (quoting H.R. Rep.
No. 40, 102d Cong., 1st Sess. Pt. 2, at 2 (1991)). For
example, Congress modified the framework for disparateimpact claims in response to Wards Cove Packing Co. v.

 32
Atonio, 490 U.S. 642 (1989), see 42 U.S.C. 2000e-2(k),
and for mixed-motive claims in response to Price Waterhouse, see 42 U.S.C. 2000e-2(m) and 2000e-5(g)(2).
Yet Congress let stand the unanimous interpretation of
the statute as excluding claims of sexual-orientation discrimination. As in Lorillard, Congress’s decision to
override some (but not all) judicial and administrative
interpretations of statutory language “strongly suggests that but for those changes Congress expressly
made,” it intended that the statute be read consistent
with those well-established interpretations. 434 U.S. at
581-582.
Moreover, in the years since the 1991 amendments,
Congress consistently and repeatedly has declined to
enact bills adding sexual orientation to the list of Title
VII’s protected traits. See pp. 3-4, supra. Until recently, that was against the backdrop of an even more
robust judicial and administrative consensus: by March
2017, all eleven courts of appeals that had addressed the
issue had determined that Title VII does not prohibit
sexual-orientation discrimination; the Department of
Justice agreed with that unanimous view; and until
2015, the EEOC had consistently held for decades that
sexual-orientation discrimination is not actionable under Title VII, including after this Court’s decisions in
Price Waterhouse and Oncale. See pp. 3-4, supra.
Congress “has not been shy” about amending antidiscrimination statutes to disapprove judicial or administrative interpretations that it deems unduly narrow.
General Dynamics Land Sys., Inc. v. Cline, 540 U.S.
581, 594 n.7 (2004). Title VII is no exception, as the 1991
amendments demonstrate. In addition, Congress reacted swiftly to this Court’s decision in General Electric
Co. v. Gilbert, 429 U.S. 125 (1976), to make clear that

 33
“[t]he terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis
of pregnancy, childbirth, or related medical conditions.”
92 Stat. 2076. Yet Congress did not amend Title VII to
add sexual orientation despite the once-unanimous view
of eleven courts of appeals that sexual orientation is not
covered by the statute. Such “congressional silence after years of judicial interpretation supports adherence
to” that uniform interpretation. Cline, 540 U.S. at 594.
* * * * *
The question here is not whether Title VII should
forbid employment discrimination because of sexual orientation, but whether it already does. The statute’s
plain text makes clear that it does not; discrimination
because of “sex” forbids treating members of one sex
worse than similarly situated members of the other—
and discrimination on the basis of sexual orientation,
standing alone, does not result in such treatment. Congress has amended other statutes expressly to cover
sexual-orientation discrimination, and it remains free to
do the same with Title VII. But until it does, this Court
should enforce the statute as it is written.

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CONCLUSION

The judgment of the court of appeals in No. 17-1618
should be affirmed and the judgment of the court of
appeals in No. 17-1623 should be reversed.
Respectfully submitted.
NOEL J. FRANCISCO
Solicitor General
JOSEPH H. HUNT
ERIC S. DREIBAND
Assistant Attorneys General
JEFFREY B. WALL
Deputy Solicitor General
HASHIM M. MOOPPAN
Deputy Assistant Attorney
General
SOPAN JOSHI
Assistant to the Solicitor
General
ERIC TREENE
Special Counsel
CHARLES W. SCARBOROUGH
STEPHANIE R. MARCUS
Attorneys

AUGUST 2019