Pamela S. Karlan

At 10:05 a.m. on October 8, 2019, Chief Justice John Roberts called Bostock and the consolidated Altitude Express case. Pamela Karlan began for Gerald Bostock and Donald Zarda’s estate with a comparison: a woman who keeps her job while dating men and a man who loses his for the same conduct.

Bostock had worked as a child-welfare advocate for Clayton County, Georgia. He alleged that the county fired him for conduct “unbecoming” an employee after he joined a gay recreational softball league.

Zarda had worked as a skydiving instructor and alleged that Altitude Express dismissed him days after he mentioned being gay. Aimee Stephens separately told a Michigan funeral-home owner that she intended to live and work as a woman; David Cole argued her transgender-status case.

The three matters arrived with different judgments below and distinct questions presented. The Eleventh Circuit had treated sexual-orientation discrimination as outside Title VII. The en banc Second Circuit sustained Zarda’s statutory theory, and the Sixth Circuit sustained the EEOC and Stephens. The Supreme Court heard Bostock and Zarda together, followed by the separate argument in Harris Funeral Homes.

The Variable

Title VII bars an employer from discharging or otherwise discriminating against an individual because of that individual’s sex. Karlan asked the Court to apply the statute’s words, “because of sex,” to the employers’ decisions.

The traditional but-for inquiry changes one fact at a time and observes the result. In Karlan’s hypothetical, attraction to men stayed constant and job performance lay outside the comparison. Changing the employee’s sex changed the employer’s response. Sex could therefore be a cause of discharge even when other factors contributed to the decision.

The statute protects an “individual.” An employer cannot offset one employee’s sex-based injury with another employee’s injury in the opposite direction. Equal hostility toward gay men and lesbians still produces separate acts of discrimination against the affected employees.

The majority later illustrated the point with sex stereotypes. An employer that fires Hannah for insufficient femininity and Bob for insufficient masculinity commits two individual violations.

The Words Congress Enacted

Justice Ruth Bader Ginsburg asked how the argument could fit a statute enacted when same-sex relations remained criminal in many states and homosexuality was widely pathologized. Karlan answered from the words Congress enacted and from applications of Title VII that the 1964 Congress had never specifically forecast.

Sexual harassment, same-sex harassment and discrimination against a woman who failed conventional expectations of femininity all became recognized applications through later cases. Those decisions applied the unchanged statutory language to conduct Congress had not specifically anticipated.

Chief Justice Roberts asked about Judge Richard Posner’s suggestion that courts should update old statutes when legislatures do not. “I disagree with Judge Posner,” Karlan replied. “I don’t think you need to do any updating here.” She argued that the original wording already covered the employers’ actions.

Karlan distinguished the meaning of the enacted words from the applications legislators expected. The parties accepted the biological distinction between men and women as the meaning of sex. The six-Justice opinion later held that historical sources could illuminate a changed meaning or an overlooked idiom, but surprise about a protected group or application supplied no unwritten exception to the rule Congress enacted.

At the Lectern

Jeffrey Harris represented the opposing employers, and Solicitor General Noel Francisco argued for the United States as amicus supporting them. Roberts asked Karlan why a policy applied to both gay men and lesbians should count as sex discrimination.

Karlan drew on Dothard v. Rawlinson, which concerned employment as a prison guard. A rule barring a woman from guarding men and a man from guarding women classified each applicant by sex. She asked the Court to substitute dating for guarding: the rule still turned on the employee’s sex. Any exemption or justification for that classification required a separate inquiry.

Justice Samuel Alito challenged the comparator. A man attracted to men and a woman attracted to men, he argued, might reveal discrimination against men rather than sexual orientation. Including a man attracted to women and a woman attracted to women would identify orientation as the employer’s chosen category.

Karlan returned to the individual before the Court. The employers had hired the men, and the allegation concerned why each lost an existing job. If a woman could say she dates men without discharge while a man received the opposite response, Title VII’s individual causal requirement was satisfied.

In rebuttal, Karlan pointed out that the employer’s proposed comparison changed both the employee’s sex and the partner’s sex. Title VII required no such double substitution. Changing the employee alone exposed whether sex played a role, even when “sexual orientation” remained an accurate name for the broader policy.

Six Votes

On June 15, 2020, Justice Neil Gorsuch delivered a six-to-three judgment. Chief Justice Roberts joined Justices Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. The Court held that an employer who fires an individual merely for being gay or transgender violates Title VII.

The majority recognized sex and sexual orientation as distinct concepts while holding that the employer necessarily used sex in applying the challenged rule. Another contributing factor—such as the employee’s attraction to someone of the same sex or presentation as a different sex from the one assigned at birth—could not insulate a decision that intentionally relied on sex as at least one but-for cause of discharge.

The Court’s earlier decisions had already addressed policies that depended on sex together with another characteristic. In Phillips v. Martin Marietta, the employer refused to hire women with young children while accepting men with young children. In Los Angeles Department of Water and Power v. Manhart, women had to contribute more to a pension fund because women as a group lived longer. Calling those rules motherhood discrimination or a life-expectancy adjustment left the sex-based difference in treatment in place.

The Supreme Court reversed and remanded the judgment in Bostock’s case. It affirmed the Second Circuit’s judgment for the Zarda estate and the Sixth Circuit’s judgment in Harris Funeral Homes, establishing Title VII’s coverage of the challenged reasons for discharge.

Two Dissents

Justice Alito, joined by Justice Clarence Thomas, opened with the charge that the Court had legislated. His dissent emphasized the absence of “sexual orientation” and “gender identity” from Title VII and decades of unsuccessful congressional proposals to add express protection.

Justice Brett Kavanaugh’s separate dissent assigned any expansion of Title VII’s ordinary meaning to Congress and the President. He accepted the force of policy arguments protecting gay and lesbian employees while disputing the majority’s reading of the statute.

All three opinions claimed fidelity to the 1964 statute. The majority emphasized the causal operation of each enacted term; the dissents emphasized the ordinary meaning of the phrase “discriminate because of sex” as a whole.

Title VII’s Employment Rule

The Court reserved questions about bathrooms, locker rooms, dress codes and other workplace policies. Those disputes would require consideration of the challenged practice and available defenses. Pronoun policies, athletics, school facilities and medical treatment also raise questions under the laws governing each practice.

Religious liberty received its own reservation. Title VII contains an exemption for qualifying religious organizations. The First Amendment protects the relationship between religious institutions and ministers, and the Religious Freedom Restoration Act can supersede ordinary federal commands when its demanding test is met.

Harris Funeral Homes had pursued a RFRA defense in the Sixth Circuit but did not ask the Supreme Court to review the rejection of that defense. The Justices therefore faced no live religious-liberty defense. Cole, the ACLU, the EEOC and Stephens’s estate had handled a separate record from Karlan’s two cases.

The Comparator Returns

Five years later, United States v. Skrmetti considered Tennessee’s restrictions on puberty blockers and hormones for minors. Challengers invoked Bostock’s comparison in an Equal Protection case involving medical regulation. Bostock’s employment holding remained intact as the Justices considered which facts to preserve when comparing patients.

The 2025 majority reserved whether Bostock’s reasoning generally extends beyond Title VII. On its reading, changing a minor’s sex or transgender status left Tennessee’s rule operating the same way because access to the requested drug also depended on diagnosis and medical purpose.

Justice Sotomayor’s dissent argued that the comparison should preserve the requested treatment and purpose. In her account, changing the diagnosis along with sex still left sex as one causal factor. The opinions disagreed about which facts could remain fixed across the medical examples.

The Stanford Clinic

Karlan joined Stanford’s faculty in 1998 after teaching at the University of Virginia. She had clerked for Justice Harry Blackmun and federal district judge Abraham Sofaer. Her civil-rights work has included service as an assistant counsel and cooperating attorney for the NAACP Legal Defense Fund and two appointments as a deputy assistant attorney general in the Justice Department’s Civil Rights Division.

She is the Kenneth and Harle Montgomery Professor of Public Interest Law and co-director of Stanford’s Supreme Court Litigation Clinic. In Bostock and Zarda, the clinic worked alongside the clients, their lower-court lawyers and amici.

The clinic represents parties and amici across the Court’s docket. Students work in teams on briefs and other filings and take part in practice oral arguments. They must research the record, choose which arguments to press and prepare answers to the questions their advocate may face before the Justices.