Bostock v. Clayton County, Georgia is, in no doubt, a landmark judgment and a much-appreciated ruling by the United States Supreme Court. The court held that discrimination, as used in Title VII of the Civil Rights Act, on the basis of sex is inclusive of discrimination against a homosexual or a transgender individual. On first glance, it looks revolutionary, and in a lot of senses it is, but when doctrinally analyzed some bizarre outcomes, which would be described as highly regressive by the LGBTQ+ community, are unavoidable. This article discusses the various doctrinal lacunas in the judgment and proposes a solution.
Let me start with a caveat. I am a proud member of the LGBTQ+ community. I am open bisexual who advocates strongly for LGBTQ+ rights, and this article is in no way meant to chide away the progress made in the judgment. I celebrate this judgment along with members of the community. The lacunas I will be listing are further an attempt to advocate for the cause. Also, before going ahead with the article, it important to define two terms: 1) sex and 2) gender.
Sex is the biologically determined sex of an individual which depends on primary and secondary sexual characteristics. Gender, on the other hand, is a self-perceived identity. It is the conception of oneself as female or male, depending on which characteristics feel more natural and is generally on a sliding scale between traits societally constructed as masculine or feminine. Masculine and feminine traits relate to how a person belonging to a particular sex is ideally [read as per society] supposed to perform his or her sex. So, a trans-man is a person whose biologically determined sex is female but who identifies as a male. The pronoun used is “he/him”. Vice-versa for trans women.
The case had three cases clubbed together. Two of which were instances of employees being fired when the employer learned they were gay, and one was the case of a transwoman being fired when she decided to live as a woman. The sex assigned at birth of the transwoman was a male, and she suffered from gender dysphoria. The court has based its ruling on an explicit assumption that sexual orientation and trans status are inextricably linked to sex while also conceding that sex, as per the statute, refers to the biologically determined sex and nothing more. The court thus held that discriminating against an individual who is a homosexual or an individual who is transgender is therefore discriminatory as it inevitably involves discriminating on the basis of sex. It has further held that discrimination, prohibited under Title VII, is discrimination against individuals and not the class of people. Further, the causation standard is the “but for” test which requires sex to be one of the reasons but for which discrimination would not have taken place. It does not need to be the main or the only reason. So it ruled that: A male person attracted to males would not be fired if the person is a woman therefore the first two cases are in violation of Title VII; A person whose sex assigned at birth is male and is fired because they later decide to live as a female would not have been fired had they been born a female. It further held that any other grounds of firing, no matter how arbitrary such as supporting a sports team, is acceptable as long as it is universal for individual males and females.
The problem with this is that the grounds for the ruling is still sex and that the assumption that sex and sexual orientation are inextricably linked is faulty. Let us take the example of a gay trans man. His sex assigned at birth is female, and his sexual orientation is that he is attracted to males. When the employer learns about this, he is fired. The individual sues the company under Title VII of the Civil Rights Act. Now the court would have to look into the question: would the individual have been fired if their sex assigned at birth was male. And for the sake of the example, let’s assume that the company has not had any openly gay employee or at least none that have been brought to the notice of the employer. If the employer says they would have fired someone whose sex assigned at birth was male, this act will stand justified. Now one way out of this, within the existing statute, would be to say every individual woman should be treated at par with every individual man and since every individual man must be treated at par with individual women, who can be attracted to males, the act of firing such an employee is discriminatory. However, this too is flawed as it is essentially comparing a woman to other women (Recall: if A=B=C this implies A=C) and therefore it cannot be called discrimination on the grounds of sex. It should be clear that sexual orientation has to do more with gender identity and not sex. Nothing in the Act prohibits the employer from discriminating within a class. The relevant section of the statute is located here.
Some people may point out that the example I have taken may not have any actual practical relevance. To that, I say that it is nonetheless important to take such examples in order to analyze a doctrine in its entirety and for consistency. Further, I am positive it would hold immense relevance for someone out there. For those still asking for a more practical example let’s take the example of bisexual people. Now if an employee has a policy of not hiring bisexual people, such a policy under the current law would not trigger Title VII. This is the same standard being applied to both individuals of both the sexes. And as the judgment does not describe criteria being arbitrary as being equivalent to any form of discrimination, in fact going against it and says criteria such as favorite sports team would be valid as long as it applied to both the sexes. More examples can be produced for people having other sexual orientations which cannot be made dependent on sex or be shown as discriminatory on the basis of sex, in the same way being gay (attracted to men) or lesbian (attracted to females), such as people who are asexual, pansexual, polyamorous, etc.
One answer to this seems to be to read the civil rights act expansively. Judiciaries in other regions of the world, such as India have adopted different standards for different kinds of legislation. Legislation, or parts thereof, which are intended to confer rights on people are read extensively and well beyond what the legislators intended to fulfill the purpose of the act, such as reading into the right to freedom of speech, the right to information, or reading into the right to life and personal liberty, the right to privacy and the right to access roads. Or even legislating temporary rules on the basis of fundamental rights and international obligations. But given the originalist approach of the American judiciary, this seems unlikely. The solution has to come from the parliament. One might suggest that the word sexual orientation be added to Title VII. This attempt would solve a lot of issues, but it still will not be enough as it would be insensitive to the needs of the trans community. It will still see trans-men as women and trans-women as men which is contrary to their demands. An ideal law would include gender, as well.
Pulkit Goyal is a first-year student in the 5 year BA LLB(H) program at Jindal Global Law School, Sonipat, India.
Suggested citation: Pulkit Goyal, Bostock: A Blanket that Cannot be Stretched Far Enough, JURIST – Student Commentary, June 19, 2020, https://www.jurist.org/commentary/2020/06/pulkit-goyal-bostock/.
This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org
