Alito, J., dissenting
were, the meaning of the adoption of the prohibition of sex discrimination is clear. It was no accident. It grew out of “a long history of women’s rights advocacy that had increasingly been gaining mainstream recognition and acceptance,” and it marked a landmark achievement in the path toward fully equal rights for women. Id., at 140. “Discrimination against gay women and men, by contrast, was not on the table for public debate ... [i]n those dark, pre-Stonewall days.” Ibid.
For those who regard congressional intent as the touchstone of statutory interpretation, the message of Title VII’s legislative history cannot be missed.
C
Post-enactment events only clarify what was apparent when Title VII was enacted. As noted, bills to add “sexual orientation” to Title VII’s list of prohibited grounds were introduced in every Congress beginning in 1975, see supra, at 2, and two such bills were before Congress in 1991[1] when it made major changes in Title VII. At that time, the three Courts of Appeals to reach the issue had held that Title VII does not prohibit discrimination because of sexual orientation,[2] two other Circuits had endorsed that interpretation in dicta,[3] and no Court of Appeals had held otherwise. Similarly, the three Circuits to address the application of Title VII to transgender persons had all rejected the argument
- ↑ H. R. 1430, 102d Cong., 1st Sess., §2(d) (as introduced in the House on Mar. 13, 1991); S. 574, 102d Cong., 1st Sess., §5 (as introduced in the Senate on Mar. 6, 1991).
- ↑ See Williamson v. A. G. Edwards & Sons, Inc., 876 F. 2d 69, 70 (CA8 1989) (per curiam), cert. denied, 493 U. S. 1089 (1990); DeSantis v. Pacific Tel. & Tel. Co., 608 F. 2d 327, 329–330 (CA9 1979); Blum v. Gulf Oil Corp., 597 F. 2d 936, 938 (CA5 1979) (per curiam).
- ↑ Ruth v. Children’s Med. Ctr., 1991 WL 151158, *5 (CA6, Aug. 8, 1991) (per curiam); Ulane v. Eastern Airlines, Inc., 742 F. 2d 1081, 1084–1085 (CA7 1984), cert. denied, 471 U. S. 1017 (1985).
