Supreme Court Review

Article Title

Sexual Orientation and the Dynamics of Discrimination


In Bostock v. Clayton County the Supreme Court held that the Title VII ban on employment discrimination “because of sex” forbids discrimination on the basis of sexual orientation or transgender status. The majority said that that outcome was dictated by “the express terms of [the] statute” interpreted according to the “ordinary public meaning of its terms at the time of its enactment.” It also said that the answer was “clear.” The Court reached the right result, but it got many things wrong along the way. It understated the difficulty of the issue presented by the case. It inverted the importance of text and precedent in resolving that issue. The majority did not adequately respond to a competing, plausible understanding of sex discrimination that the dissenters embraced. The majority also did not really come to grips with the fact that neither the Congress that enacted Title VII, nor any court for a half-century afterward, understood Title VII in the way it did. And the Court’s narrow focus on the words of Title VII meant that it never considered the relationship between the issue in Bostock and the substantial body of constitutional law concerning sex discrimination, or the more recently developed constitutional protections for gay and lesbian people. The main source of these problems was the claim that the case could be decided on the basis of the words of the statute alone—as if the answer has been there ever since 1964, awaiting only the majority’s analysis of meaning and syntax to unlock it, and as if we have not learned anything in the intervening years. The Court was right to extend Title VII to discrimination on the basis of sexual orientation not because that conclusion was already contained in the words themselves but because of a decades-long evolution in which courts, and to some extent actors outside the courts, worked out what impermissible sex discrimination is, in interpreting both Title VII and the Equal Protection Clause of the Constitution.

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