Why Bostock v. Clayton County was a disaster and what courts can do about it

November 17, 2022

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The Supreme Court decided the case of Bostock v. Clayton County, Georgia on June 15, 2020. The opinion is available here, but the gist is this:

• Two gay men (Bostock and Zarda) separately filed lawsuits against their employers, alleging that their employers fired them because of their sexual orientation. 

• A man (who claimed to be a woman) named Aimee Stephens sued his employer, alleging that his employer fired him because he (she, if you believe him), “was transgender” (Stephens has since passed away). 

• The Supreme Court combined the cases (the decision that became Bostock addresses all three cases) and ended up ruling that discriminating against a person on the basis of his or her sexual orientation or “transgender status” constitutes unlawful sex discrimination under Title VII, which prohibits discrimination in the employment context. The Supreme Court did not tell us what the phrase “transgender status” means for Title VII purposes or for any other purpose.

The Women’s Liberation Front (WoLF), on whose board I served at the time, filed an amicus brief in the Harris case, but not in either of the other two cases. WoLF’s main argument was that the Harris case presented an opportunity for the Supreme Court to re-affirm previous caselaw holding that discriminatory actions on the basis of sex-stereotyping violate the 1964 Civil Rights Act. Here’s what I had to say about it at the time:

Congress knew very well what the word ‘sex’ means when it included that word in the list of categories of people in need of civil rights protections. There is no basis, nor is there any reason, for this Court to hold that sex means anything other than what everyone knows it means. 

The Bostock decision has become a complete disaster when it comes to protecting women and girls on the basis of sex throughout U.S. federal law (an outcome that WoLF predicted). A recent federal court decision explains why and provides some hope for finding our way out of the “gender identity” quagmire in the law.