Kavanaugh, J., dissenting
Like the relevant federal statutes, the 1998 Clinton Executive Order expressly added sexual orientation as a new, separately prohibited form of discrimination. As Judge Lynch cogently spelled out, “the Clinton Administration did not argue that the prohibition of sex discrimination in” the prior 1969 Executive Order “already banned, or henceforth would be deemed to ban, sexual orientation discrimination.” 883 F. 3d, at 152, n. 22 (dissenting opinion). In short, President Clinton’s 1998 Executive Order indicates that the Executive Branch, like Congress, has long understood sexual orientation discrimination to be distinct from, and not a form of, sex discrimination.
Federal regulations likewise reflect that same understanding. The Office of Personnel Management is the federal agency that administers and enforces personnel rules across the Federal Government. OPM has issued regulations that “govern ... the employment practices of the Federal Government generally, and of individual agencies.” 5 CFR §§300.101, 300.102 (2019). Like the federal statutes and the Presidential Executive Orders, those OPM regulations separately prohibit sex discrimination and sexual orientation discrimination.
The States have proceeded in the same fashion. A majority of States prohibit sexual orientation discrimination in
