Sexual orientation is not on the list of forbidden categories of employment discrimination [of Title VII of the Civil Rights Act of 1964], and we have long and consistently held that employment decisions based on a person’s sexual orientation do not classify people on the basis of sex and thus are not covered by Title VII’s prohibition of discrimination “because of sex.”... This interpretation has been stable for many decades and is broadly accepted; all circuits agree that sexual-orientation discrimination is a distinct form of discrimination and is not synonymous with sex discrimination.Today the court jettisons the prevailing interpretation and installs the polar opposite. Suddenly sexual-orientation discrimination is sex discrimination and thus is actionable under Title VII. What justification is offered for this radical change in a well-established, uniform interpretation of an important—indeed, transformational—statute? My colleagues take note of the Supreme Court’s “absence from the debate.” Id. at p. 4. What debate? There is no debate, at least not in the relevant sense. Our long-standing 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, as my colleagues must and do acknowledge. [Hively v. Ivy Tech, p. 43]
Title VII does not define discrimination “because of sex.” In 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....The two terms are never used interchangeably, and the latter is not subsumed within the former; there is no overlap in meaning. Contrary to the majority’s vivid rhetorical claim, it does not take “considerable calisthenics” to separate the two. Majority Op. at p. 20. The words plainly describe different traits, and the separate and distinct meaning of each term is easily grasped. More specifically to the point here, discrimination “because of sex” is not reasonably understood to include discrimination based on sexual orientation, a different immutable characteristic. Classifying people by sexual orientation is different than classifying them by sex. The two traits are categorically distinct and widely recognized as such. There is no ambiguity or vagueness here. [Hively v. Ivy Tech, pp. 47-8]