Back to Bostock: The Dust is Settling

    In the five weeks since the US Supreme Court case of Bostock v Clayton County was decided, not much has been written about it due to Covid 19 and the social unrest caused by the death of George Floyd.

 So I'm not well-informed on other lawyers' opinions on this, though I've benefited from talking with interested feminists who've followed the case. These are just one radfem's takeaways from the Bostock decision.

 1. The main holding is clear: the prohibition against sex discrimination in Title VII of the Civil Rights Act covers LGB and T workers and job applicants.

2. The reasoning is this: adverse employment decisions are prohibited if the sex of the employee is necessarily a factor in the adverse decision. There's no distinguishing analysis between sexual orientation and trans status. LGB and T legal interests are assumed to be the same for purposes of civil rights law. When either sexual orientation or trans status is a reason for an adverse employment decision, the same reasoning kicks in, because biological sex is automatically a factor for either.

3. Religious and other similar persons and institutions, including "conscientious objectors" who may not be ministers or even directly connected to a church, are encouraged to seek exemptions from nondiscrimination laws in reliance on the First Amendment in future cases, and Bostock expressly does not decide on the religious issue.

4. Transgender people are covered under Title VII on the basis that they cannot be discriminated against because of their biological sex. The plaintiff in the Harris case was a man discriminated against because a similarly-situated woman employee would not have been fired for exhibiting the behavior and appearance he wished to exhibit on the job. Trans women are not women, they are necessarily men for this analysis to be coherent. The male petitioner Aimee Stephens can't be treated differently from the way a woman would have been treated in that position, or he, a man, is being discriminated against because of his male sex.

5. The Court makes no explicit holding regarding dress codes. However, following the Bostock test, dress codes for men and women, which necessarily consider biological sex, may not treat a man who dresses according to the women's dress code in any way differently from a woman who dresses according to the women's dress code. The fact that both sexes suffer equally from having a dress code doesn't change that. It follows that in future cases the holding will be that any man, trans or not, who chooses to follow the women's dress code may not be fired for doing so.

6. Title VII was enacted to protect individuals, not a class of women or a class of men in the employment arena. Class complaints will be discouraged or perhaps not permitted at all in future Title VII cases.

7. While the holding is limited to the facts of the particular cases, the case will control many other Title VII cases. It is very likely to control decisions in future Title IX (education, including women's sports) cases. It is very likely to result in an even narrower interpretation of the statutory BFOQ exceptions. It is likely to be influential or controlling in state courts considering civil rights cases. It will be influential in considering any civil rights bills brought in the Congress.

8. The Court is emphasizing textual analysis as a method of decision over a contextual analysis that considers legislative history and intent, public policy arguments, or the plain meaning of a term at the time a statute was enacted.