Justice Alito dissenting: Title VII, as noted, prohibits discrimination “because of

. . . sex,” §2000e-2(a)(1), and in 1964, it was as clear as clear

could be that this meant discrimination because of the genetic and anatomical characteristics
that men and women
have at the time of birth.

the concept of discrimination because of “sex” is different from discrimination because of

“sexual orientation” or “gender identity.

Majority: the Court asserts again and again that discrimination because of sexual orientation
or gender identity inherently or necessarily entails discrimination because of sex.

Alito: Contrary to the Court’s contention, discrimination because of sexual orientation or

gender identity does not in and of itself entail discrimination because of sex. it is quite possible
for an employer to discriminate on those grounds without taking the sex of an individual
applicant or employee into account. An employer
can have a policy that says: “We do not hire gays, lesbians,
or transgender individuals.” And an employer can implement this policy without paying any
attention to or even
knowing the biological sex of gay, lesbian, and transgender
applicants.

if an employer discriminates
against individual applicants or employees without even
knowing whether they are male or female, it is impossible
to argue that the employer intentionally discriminated because of sex. An employer cannot
intentionally discriminate on the basis of a characteristic of
which the employer has no knowledge. And if an employer
does not violate Title VII by discriminating on the basis of sexual orientation or gender identity
without knowing the
sex of the affected individuals, there is no reason why the
same employer could not lawfully implement the same policy even if it knows the sex of these
individuals.

All these variants stress that sex, sexual orientation, and gender identity
are related concepts.

Title VII prohibits discrimination because of sex itself, not

everything that is related to, based on, or defined with reference to, “sex.

Majority: [a]n individual’s homosexuality or transgender

status is not relevant to employment decisions. “it is impossible to discriminate against a
person for being homosexual or
transgender without discriminating against that individual
based on sex,”

Alito: [H]omosexuality and transgender status are distinct concepts from

sex,” ante, at 19, and discrimination because of sexual orientation or transgender status does
not inherently or necessarily constitute discrimination because of sex.

Majority: term “sex”

was not universally understood in 1964 to refer just to the
categories of male and female,

Alito: The
words of a law, he insisted, “mean what they conveyed to
reasonable people at the time.” judges should ascribe to
the words of a statute “what a reasonable person conversant with applicable social conventions
would have understood them to be adopting. a
judge interpreting a statute should ask “ ‘what one would
ordinarily be understood as saying, given the circumstances
in which one said it.’” the concept of discrimination “because of,” “on
account of,” or “on the basis of ” sex was well understood. It
was part of the campaign for equality that had been waged
by women’s rights advocates for more than a century, and
what it meant was equal treatment for men and women. Discrimination “because of sex” was
not understood as
having anything to do with discrimination because of sexual orientation or transgender status.

Without strong
evidence to the contrary (and there is none here), our job is
to ascertain and apply the “ordinary meaning” of the statute. And in 1964, ordinary Americans
most certainly
would not have understood Title VII to ban discrimination
because of sexual orientation or gender identity

What the Court has done today— interpreting discrimination because of “sex” to encompass
discrimination because of sexual orientation or gender identity— is virtually
certain to have far-reaching consequences.

the position
that the Court now adopts will threaten freedom of religion,
freedom of speech, and personal privacy and safety. No one
should think that the Court’s decision represents an unalloyed victory for individual liberty