Bostock v. Clayton County, Georgia | Critical Reflections & Highlights

Bostock v. Clayton County, Georgia; Argued October 8, 2019–Decided June 15, 2020 (.pdf)


Reading this decision was one of the most exasperating experiences I have had in a long time. I find in this decision all the elements that constitute the meaning-making process that we humans go through every day, and another exemplification of why our epistemologies are “inter-subjective.” The majority opinion leveraged moral philosophy and cultural exegesis for their argument. The dissenting opinion rigorously argued for a non-legislative approach to the judiciary, an instantiation of the original meaning of terms for interpretation, and the dangerous precedent this may set for future decisions of statutory law. Without stating my personal opinion, I think it is important to explore why it is best to leverage the “Tevye Principle” on this one.

“The Tevye Principle”

The Tevye Principle states that there are always two sides to every moral argument. (Please note, I am not saying there are two sides to every “moral principle.”) When making a moral argument, one must consider the challenges and unintended consequences of the reasons and rationales one is using, for there will always be an, “on the other hand.”

(By the way, a quick Google search yields three results of the term, none of which use this definition. So, I cannot say that I am “original” in the phrase’s usage. But, can I claim “originality” in meaning? 😬 We can let the public decide whether or not I “coined” the term.)

Here I wish to share why this SCOTUS decision exemplifies the shortcomings and inadequacies of legal and moral reasoning.

The Definition of “Sex,” Part I
How The Majority Opinion Denies A Text’s Original Cultural Integrity

While the majority opinion takes great strains to explain what “sex” means in Title VII today, it can only maintain its position if it expands upon the originally understood meaning of the definition of “sex” as written in 1964. As argued, there is no “such thing as a ‘canon of donut holes,’ in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exception to a broad rule, courts apply the broad rule.” (p.19) The problem with this reasoning is that if terms and phrases can be expanded beyond their original meaning, by the original authors, then we violate the unspoken agreement, that we will read what an author wrote according to the intended purposes, genres, and meaning of that author. The precedent set here, is that “sex” in the future, could very well be expanded to a new definition and understanding in future cultural contexts. Over time, this relegates original meaning to irrelevance and obscurity.

The Definition of “Sex,” Part II
How The Dissenting Opinion Denies That Meaning Is Fluid

While the dissenting opinion takes great strains to explain what “sex” originally meant in Title VII then, (in 1964), it constricts meaning so narrowly that it denies the fluidity of cultural understandings, the “spirit” of the law, and the necessity of new interpreters to make their meaning out of original principles. Justices Alito and Kavanaugh argue persuasively that no one has ever interpreted “sex” to include transgenderism or sexual orientation (i.e., “homosexuality.”) That may be true. But as counter-argued, the original writers never would have considered sex discrimination against men to be part of the original concept either, and later generations understood that to be part of the statue’s intended meaning. The dissent argues that the judicial and legislative branch should guard their constitutional powers carefully as separate. But examples in American history have shown that the judiciary does exert the power to hermeneutically decide on legislation.

The Definition of “Legislate”

So, where does that leave us? Neither one of these arguments is sufficient. Neither one will “get the job done” fully for what needs to be adjudicated. Neither one represents the nature of what texts and laws could and can mean. For that, we need … beliefs. Are you a “textualist/originalist” who believes that words in codified texts only mean what would have been understood in their original setting by the original authors? Or, do you believe the constitution is a “living document” that evolves with us? Do you believe the Supreme Court’s responsibility is to merely adjudicate according to the definitions of words? Or, do you believe that the Supreme Court’s responsibility is to interpret what the words mean in light of what is philosophically moral? It is flabbergasting to consider that the highest authority in the land is predicated–as with everything in this world–on faith.

The United States believes in a separation of powers, where “legislation” and “adjudication” are two separate branches that keep each other accountable, and ensure that power is distributed. But once we recognize that Supreme Court justices are called upon to do the impossible, we are forced to recognize that interpreting “the law” IS to make/formulate/codify a law. Put another way, the line between hermeneutics and legislation is extremely blurry, and perhaps, does not even exist. And, considering that the outcomes of interpretation is based upon what one believes ought/should/must be the case, it is no wonder that in some political circles the President, frequently touted as the “most powerful person in the world” is merely a proxy–or worse, a tool–for getting the right people on the Supreme Court. For there, in reality, is the top of our Constitutional food chain.

When the Laws are Unjust

I have a brilliant group of people in my weekly small group; educated, thoughtful, and grounded, with whom I shared, fairly transparently, my reflections. Because of the progressive bias of this cohort, I focused in on the tension, that I saw merits of the dissenting opinion. As someone who has thought deeply about hermeneutics primarily through the lens of biblical interpretation, in addition to the legal strictures of what The Court is permitted by our Democratic system, expanding definitions and meanings of terms is extremely precarious as exemplified in the many examples of texts that have been so culturally appropriated that the words can mean anything that moderns readers want them to mean. The original context is rarely if ever considered when it comes to certain expressions of American religious interpretation.

But then it was raised, that throughout our history, laws have been codified in our books that have been immoral and unjust. As one member mentioned, (and I paraphrase), “I don’t want to wait around for Congress to get their act together. If that were the case, we could be living under unjust laws for a very long time.”

I agree.

“The Tevye Principle +”

And so, we come back to what I’ll now call, “The Tevye Principle +” Not only are there always two sides to any moral argument but both, contradictory principles can both be correct:

Well put!

He is right. As the Good Book says, “If you spit in the air, it lands in your face.”

Nonsense. You can’t close your eyes to what’s happening in the world.

He is right.

He’s right and he’s right? They can’t both be right.

You know, you are also right.

I find that I cannot extricate myself from the belief (or the belief from myself?) that both sides of this argument have equal merit, that both judicial philosophies must be considered. And the world in which we live must navigate these tensions with respect, never with absolutes.

It is true, that they can’t both be right. And that, is also right.

Below are the highlights from the decision with my comments in blue.



Held: An employer who fires an individual merely for being gay or transgender violates Title VII. Pp. 4–33. (1)

(1) The parties concede that the term “sex” in 1964 referred to the biological distinctions between male and female. (2)

(2) These terms generate the following rule: An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It makes no difference if other factors besides the plaintiff’s sex contributed to the decision or that the employer treated women as a group the same when compared to men as a group. A statutory violation occurs if an employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee. (2)

First, it is irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. … Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action. … Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. (3)

Opinion of the Court

J. Gorsuch

But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit. (2)

If judges could add to, remodel, update, or detract from old statutory terms inspired only by extratextual sources and our own imaginations, we would risk amending statutes outside the legislative process reserved for the people’s representatives. And we would deny the people the right to continue relying on the original meaning of the law they have counted on to settle their rights and obligations. (4)

When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision. So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law. (6)

Discrimination sometimes involves “the act, practice,or an instance of discriminating categorically rather than individually.” (7)

The statute’s message for our cases is equally simple and momentous: An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. (9)

[via: The opinion is interesting as it makes appeals to originality, while not substantiating their understanding and definition of sex in the general opinion.]

The lessons these cases hold for ours are by now familiar. | First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. (14)

Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. (14)

Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups. (15)

You can call the statue’s but-for causation test what you will–expansive, legalistic, the dissents even dismiss it as wooden or literal. But it is the law. (17)

Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception. Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. (19)

[via: So, not “original.”]

Title VII’s plain terms and our precedents don’t care if an employer treats men and women comparably as groups; an employer who fires both lesbians and gay men equally doesn’t diminish but doubles its liability. (21)

Ultimately, the employers are forced to abandon the statutory text and precedent altogether and appeal to assumptions and policy. (23)

But to refuse enforcement just because of that, because the parties before us happened to be unpopular at the time of the law’s passage, would not only require us to abandon our role as interpreters of statutes; it would tilt the scales of justice in favor of the strong or popular and neglect the promise that all persons are entitled to the benefit of the law’s terms. (28)

[via: Key phrase, “as interpreters of statues”.]

The weighty implications of the employers’ argument from expectations also reveal why they cannot hide behind the no-elephants-in-mouseholes canon. That canon recognizes that Congress “does not alter the fundamental details of a regulatory scheme in vague terms or ancillary provisions.” … Title VII’s prohibition of sex discrimination in employment is a major piece of federal civil rights legislation. It is written in starkly broad terms. It has repeatedly produced unexpected applications, at least in the view of those on the receiving end of them. Congress’s key drafting choices—to focus on discrimination against individuals and not merely between groups and to hold employers liable whenever sex is a but-for cause of the plaintiff ’s injuries—virtually guaranteed that unexpected applications would emerge over time. This elephant has never hidden in a mousehole; it has been standing before us all along. (30)

[via: The “no-elephants-in-mouseholes” canon basically means that if Congress meant to include sexual orientation or identity in their statute, they would have said it. Gorsuch argues that orientation and identity “has been [in the statute] all along.”]

The place to make new legislation, or address unwanted consequences of old legislation, lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully as we can in the cases that come before us. As judges we possess no special expertise or authority to declare for ourselves what a self-governing people should consider just or wise. And the same judicial humility that requires us to refrain from adding to statutes requires us to refrain from diminishing them.

[via: I found this statement to be astonishing, given my explication above in the critical review. It is fascinating to see this as argued “to refrain from diminishing” the law’s demands, rather than adding or expanding the law’s demands, which is what seems to have happened in this case, given the argument of the dissent.]

In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law. (33)


J. Alito (J. Thomas joins)

The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society. (3)

…the question in these cases is not whether discrimination because of sexual orientation or gender identity should be outlawed. The question is whether Congress did that in 1964. | It indisputably did not. (4)

…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. (4)

If “sex” in Title VII means biologically male or female, then discrimination because of sex means discrimination because the person in question is biologically male or biologically female, not because that person is sexually attracted to members of the same sex or identifies as a member of a particular gender. (5)

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. (9)

An employer cannot intentionally discriminate on the basis of a characteristic of which the employer has no knowledge. (9)

[via: So, could an employer discriminate against people “who wear crosses” or “stand while urinating” without “knowing” the religion or gender of the individual? (I hope this is not an argument ad absurdum).]

If an employer takes an adverse employment action for a perfectly legitimate reason—for example, because an employee stole company property—that action is not converted into sex discrimination simply because the employer knows the employee’s sex. (10)

Rejecting applicants who checked a box indicating that they are homosexual is entirely different because it is impossible to tell from that answer whether an applicant is male or female. (10)

[via: This argument is so narrow. It is merely the “knowledge of the biological gender of the applicant assigned at the time of birth.” But that argument begins to fail, too, because if someone is transgendered, the employer would never have the knowledge of “assigned at the time of birth,” nor would it be relevant to hiring. Yes?]

Think of all the nouns other than “orientation” that are commonly modified by the adjective “sexual.” Some examples yielded by a quick computer search are “sexual harassment,” “sexual assault, “sexual violence,” “sexual intercourse,” and “sexual content.” (13)

[via: This is a poor argument. “Sex” as defined and argued by Alito is not the same as the adjective “sexual.”]

“[H]eterosexuality is not a female stereotype; it not a male stereotype; it is not a sex-specific stereotype at all.” (19)

Discrimination because of sexual orientation is different. It cannot be regarded as a form of sex discrimination on the ground that applies in race cases since discrimination because of sexual orientation is not historically tied to a project that aims to subjugate either men or women. An employer who discriminates on this ground might be called “homophobic” or “transphobic,” but not sexist. (21)

Viewing all these definitions, the overwhelming impact is that discrimination because of “sex” was understood during the era when Title VII was enacted to refer to men and women. (22)

Justice Scalia was perfectly clear on this point. The words of a law, he insisted, “mean what they conveyed to reasonable people at the time.” Reading Law, at 16 (emphasis added). | Leading proponents of Justice Scalia’s school of textualism have expounded on this principle and explained that it is grounded on an understanding of the way language works. As Dean John F. Manning explains, “the meaning of language depends on the way a linguistic community uses words and phrases in context.” What Divides Textualists From Purposivists? 106 Colum. L. Rev. 70, 78 (2006).“[O]ne can make sense of others’ communications only by placing them in their appropriate social and linguistic context,” id., at 79–80, and this is no less true of statutes than any other verbal communications. “[S]tatutes convey meaning only because members of a relevant linguistic (23) community apply shared background conventions for understanding how particular words are used in particular contexts.” Manning, The Absurdity Doctrine, 116 Harv. L. Rev. 2387, 2457 (2003). Therefore, 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.” Manning, 106 Colum. L. Rev., at 77. Or, to put the point in slightly different terms, a judge interpreting a statute should ask “‘what one would ordinarily be understood as saying, given the circumstances in which one said it.’” Manning, 116 Harv. L. Rev., at 2397– 2398. (24)

Thus, when textualism is properly understood, it calls for an examination of the social context in which a statute was enacted because this may have an important bearing on what its words were understood to mean at the time of enactment. Textualists do not read statutes as if they were messages picked up by a powerful radio telescope from a (24) distant and utterly unknown civilization. Statutes consist of communications between members of a particular linguistic community, one that existed in a particular place and at a particular time, and these communications must therefore be interpreted as they were understood by that community at that time. | For this reason, it is imperative to consider how Americans in 1964 would have understood Title VII’s prohibition of discrimination because of sex. (25)

The answer could not be clearer. In 1964, ordinary Americans reading the text of Title VII would not have dreamed that discrimination because of sex meant discrimination because of sexual orientation, much less gender identity. The ordinary meaning of discrimination because of “sex” was discrimination because of a person’s biological sex, not sexual orientation or gender identity. The possibility that discrimination on either of these grounds might fit within some exotic understanding of sex discrimination would not have crossed their minds. (25)

In short, 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. (28)

For most 21st-century Americans, it is painful to be reminded of the way our society once treated gays and lesbians, but any honest effort to understand what the terms of Title VII were understood to mean when enacted must take into account the societal norms of that time. And the plain truth is that in 1964 homosexuality was thought to be a mental disorder, and homosexual conduct was regarded as morally culpable and worthy of punishment. (28)

[via: This is persuasive. Vast societal evidence substantiates this, as Alito next considers the DSM definitions.]

To its credit, our society has now come to recognize the injustice of past practices, and this recognition provides the impetus to “update” Title VII. But that is not our job. Our (32) duty is to understand what the terms of Title VII were understood to mean when enacted, and in doing so, we must take into account the societal norms of that time. We must therefore ask whether ordinary Americans in 1964 would have thought that discrimination because of “sex” carried some exotic meaning under which private-sector employers would be prohibited from engaging in a practice that represented the official policy of the Federal Government with respect to its own employees. We must ask whether Americans at that time would have thought that Title VII banned discrimination against an employee for engaging in conduct that Congress had made a felony and a ground for civil commitment. (33)

| The questions answer themselves. Even if discrimination based on sexual orientation or gender identity could be squeezed into some arcane understanding of sex discrimination, the context in which Title VII was enacted would tell us that this is not what the statute’s terms were understood to mean at that time. To paraphrase something Justice Scalia once wrote, “our job is not to scavenge the world of English usage to discover whether there is any possible meaning” of discrimination because of sex that might be broad enough to encompass discrimination because of sexual orientation or gender identity. Chisom v. Roemer, 501 U. S. 380, 410 (1991) (dissenting opinion). Without strong evidence to the contrary (and there is none here), our job is to ascertain and apply the “ordinary meaning” of the statute. Ibid. And in 1964, ordinary Americans most certainly would not have understood Title VII to ban discrimination because of sexual orientation or gender identity. (33)

The Court’s argument rests on a false premise. As already explained at length, the text of Title VII does not prohibit discrimination because of sexual orientation or gender identity. And what the public thought about those issues in 1964 is relevant and important, not because it provides a ground for departing from the statutory text, but because it helps to explain what the text was understood to mean when adopted. (36)

Because the opinion of the Court flies a textualist flag, I have taken pains to show that it cannot be defended on textualist grounds. But even if the Court’s textualist argument were stronger, that would not explain today’s decision. Many Justices of this Court, both past and present, have not espoused or practiced a method of statutory interpretation that is limited to the analysis of statutory text. Instead, when there is ambiguity in the terms of a statute, they have found it appropriate to look to other evidence of “congressional intent,” including legislative history. (40)

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. (44)

…Congress might have crafted special rules for some of the relevant statutes. But by intervening and proclaiming categorically that employment discrimination based on sexual orientation or gender identity is simply a form of discrimination because of sex, the Court has greatly impeded—and perhaps effectively ended—any chance of a bargained legislative resolution. Before issuing today’s radical decision, the Court should have given some thought to where its decision would lead. (45)

| As the briefing in these cases has warned, 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. (45)

[via: It did not appear that these “implications” were well substantiated. In fact, the “freedom of religion” was addressed specifically, on page 32 of the Opinion:

“We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a). This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1. Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’scommands in appropriate cases. See §2000bb–3.”]

The Court provides no clue why a transgender person’s claim to such bathroom or locker room access might not succeed. (46)

[via: Because The Court did not consider this to be the primary issue being deliberated.]

* * *

The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves. But the authority of this Court is limited to saying what the law is. | The Court itself recognizes this: (54)

“The place to make new legislation . . . lies in Congress. When it comes to statutory interpretation, our role is limited to applying the law’s demands as faithfully aswe can in the cases that come before us.” Ante, at 31.

It is easy to utter such words. If only the Court would live by them.

I respectfully dissent. (54)


J. Kavanaugh

But we are judges, not Members of Congress. And in Alexander Hamilton’s words, federal judges exercise “neither Force nor Will, but merely judgment.” (2)

“Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary controul, for the judge would then be the legislator.” – James Madison

The “prime directive in statutory interpretation is to apply the meaning that a reasonable reader would derive from the text of the law,” so that “for hard cases as well as easy ones, the ordinary meaning (or the ‘everyday meaning’ or the ‘commonsense’ reading) of the relevant statutory text is the anchor for statutory interpretation.” W. Eskridge, Interpreting Law 33, 34–35 (2016) (6)

Both the rule of law and democratic accountability badly suffer when a court adopts a hidden or obscure interpretation of the law, and not its ordinary meaning. (7)

When there is a divide between the literal meaning and the ordinary meaning, courts must follow the ordinary meaning. (8)

This Court has often emphasized the importance of sticking to the ordinary meaning of a phrase, rather than the meaning of words in the phrase. (9)

“Legislation cannot sensibly be interpreted by stringing together dictionary synonyms of each word and proclaiming that, if the right example of the meaning of each is selected, the ‘plain meaning’ of the statute leads to a particular result. No theory of interpretation, including textualism itself, is premised on such an approach.” (10)

So to think that sexual orientation discrimination is just a form of sex discrimination is not just a mistake of language and psychology, but also a mistake of history and sociology. (13)

Many federal statutes prohibit sex discrimination, and many federal statutes also prohibit sexual orientation discrimination. But those sexual orientation statutes expressly prohibit sexual orientation discrimination in addition to expressly prohibiting sex discrimination. Every single one. To this day, Congress has never defined sex discrimination to encompass sexual orientation discrimination. Instead, when Congress wants to prohibit sexual orientation discrimination in addition to sex discrimination, Congress explicitly refers to sexual orientation discrimination. (13)

[via: Persuasive evidence.]

And the Court has likewise stressed that we may not read “a specific concept into general words when precise language in other statutes reveals that Congress knew how to identify that concept.” (14)

To tie it all together, the plaintiffs have only two routes to succeed here. Either they can say that literal meaning overrides ordinary meaning when the two conflict. Or they can say that the ordinary meaning of the phrase “discriminate because of sex” encompasses sexual orientation discrimination. But the first flouts long-settled principles of statutory interpretation. And the second contradicts the widespread ordinary use of the English language in America. (21)

The majority opinion insists that it is not rewriting or updating Title VII, but instead is just humbly reading the text of the statute as written. But that assertion is tough to accept. Most everyone familiar with the use of the English language in America understands that the ordinary meaning of sexual orientation discrimination is distinct from the ordinary meaning of sex discrimination. Federal law distinguishes the two. State law distinguishes the two. This Court’s cases distinguish the two. Statistics on discrimination distinguish the two. History distinguishes the two. Psychology distinguishes the two. Sociology distinguishes the two. Human resources departments all over America distinguish the two. Sports leagues distinguish the two. Political groups distinguish the two. Advocacy groups distinguish the two. Common parlance distinguishes the two. Common sense distinguishes the two. (25)

The proper role of the Judiciary in statutory interpretation cases is “to apply, not amend, the work of the People’s representatives,” even when the judges might think that “Congress should reenter the field and alter the judgments it made in the past.” (27),

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