An interesting approach. I think you've misunderstood the Bostock decision and your letter promotes a misreading of the case that will not work to solve social or political controversy over “gender identity”.
In the Bostock v Clayton (U.S 140 S. Ct. 1731, 2020), the Supreme Court majority opinion applied what is commonly called “plain mea…
An interesting approach. I think you've misunderstood the Bostock decision and your letter promotes a misreading of the case that will not work to solve social or political controversy over “gender identity”.
In the Bostock v Clayton (U.S 140 S. Ct. 1731, 2020), the Supreme Court majority opinion applied what is commonly called “plain meaning” jurisprudence to the language of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. The court looked to the meaning of “sex” as it was understood when the law was enacted, and noted specifically that the parties conceded that in 1964 “sex” meant biological sex – the difference between males and females.
The Bostock majority determined that the gay and “transgender status” litigants were discriminated against in employment because they had been fired from their jobs on account of their sex, and cited (without discussion) the Price Waterhouse case.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) was the landmark case that interpreted Title VII’s prohibition of sex discrimination in employment to discrimination on the basis of sex stereotypes. In Price Waterhouse, the female employee, Anne Hopkins, was not promoted on the basis of her employers’ perception of her as too abrasive or aggressive - for a woman.
Consequently, I read the Bostock holding as a kind of “reverse discrimination” case, which extends Title VII’s protection against sex-based stereotypes to men. Under the facts of the litigants, that means that sex-based stereotypes about men – that they should be same-sex oriented, or appear and/or act “masculine”, cannot be the basis for employment (hiring/firing) decisions.
In this lawyer's opinion, that is the right result, on the basis of the right analysis.
The Bostock majority made clear that its decision only addressed the employment hiring/firing context, and did not reach issues such as single-sex restrooms and other single-sex services.
One does not have to be a lawyer to make sense of the majority opinions in these cases.
To find the Supreme Court’s opinions in Bostock and Price Waterhouse:
Okay, so you're saying that it doesn't protect with regards to gender identity? Rather, with sex-based expectations—so it protects a male who wears a dress, not a male who identifies as a female? Forgive me if I misunderstood. I very much want to get it right!
Lisa, here is the exact language from Bostock, limiting the holding to Title VII:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “ ‘discriminate against’ “ refers to “distinctions or differences in treatment that injure protected individuals.” Burlington N. & S.F.R., 548 U.S. at 59, 126 S.Ct. 2405. Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.
Hi, Lisa: the best person on Bostock is Kara Dansky, if you have a way to get in touch with her, but I will give it a go. The problem with Bostock is that it redefined sex to include gender identity and sexual orientation, rather than, for example set the two categories as new categories. The terrible result of this is that, if you include gender identity, particularly, within the definition of sex, you actually define sex itself out of existence. Now, Bostock is limited to Title VII, but the Obama and Biden administrations made matters much worse by extending the Bostock definition to every place in law and regulation where the word sex appears. Kara’s book, The Abolition of Sex, is where I learned (to my horror) that this had happened—and also that, per the language of the decision itself, this wasn’t necessary, as the majority holding made clear they were not making an interpretation of any regulation except Title VII. But, really, Kara is the absolute go-to person on this, so do get in touch with her, if you have a way to do it.
As I understood the statement of facts in Bostock (which consolidated three cases of 2 gay men and 1 trans-identified man), the trans-identified man was more than a transvestite; he "identified" as a female (the court specifically described him as "transgender status", using quotation marks). But the court was concerned with stereotypes, not his claim to be female. The Supreme Court treated him as a male who had been subjected impermissably to stereotyping in employment. Which is why, when I am asked to explain the case, I describe it as a "reverse stereotype discrimination" case, based on my close reading of the facts, reasoning and holding.
And I'm suggesting that your letter should take care with how it represents Bostock, to avoid perpetuating unwarranted expectations about the scope of the decision.
I'm saying Bostock protects people against employment discrimination on the basis of sex-stereotypes, which includes sex-stereotypes of sexual orientation and what the majority opinion described as "transgender status", which I understood to be the sex-stereotypes of masculinity and femininity (what we used to call "gender").
Yes, that's what it's saying. If a male doesn't confirm to sex-based stereotypes (in this case, "what women wear" and "what men wear"), he can't be fired for it.
An interesting approach. I think you've misunderstood the Bostock decision and your letter promotes a misreading of the case that will not work to solve social or political controversy over “gender identity”.
In the Bostock v Clayton (U.S 140 S. Ct. 1731, 2020), the Supreme Court majority opinion applied what is commonly called “plain meaning” jurisprudence to the language of the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964. The court looked to the meaning of “sex” as it was understood when the law was enacted, and noted specifically that the parties conceded that in 1964 “sex” meant biological sex – the difference between males and females.
The Bostock majority determined that the gay and “transgender status” litigants were discriminated against in employment because they had been fired from their jobs on account of their sex, and cited (without discussion) the Price Waterhouse case.
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) was the landmark case that interpreted Title VII’s prohibition of sex discrimination in employment to discrimination on the basis of sex stereotypes. In Price Waterhouse, the female employee, Anne Hopkins, was not promoted on the basis of her employers’ perception of her as too abrasive or aggressive - for a woman.
Consequently, I read the Bostock holding as a kind of “reverse discrimination” case, which extends Title VII’s protection against sex-based stereotypes to men. Under the facts of the litigants, that means that sex-based stereotypes about men – that they should be same-sex oriented, or appear and/or act “masculine”, cannot be the basis for employment (hiring/firing) decisions.
In this lawyer's opinion, that is the right result, on the basis of the right analysis.
The Bostock majority made clear that its decision only addressed the employment hiring/firing context, and did not reach issues such as single-sex restrooms and other single-sex services.
One does not have to be a lawyer to make sense of the majority opinions in these cases.
To find the Supreme Court’s opinions in Bostock and Price Waterhouse:
Bostock: https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf
Price Waterhouse: https://supreme.justia.com/cases/federal/us/490/228/
Okay, so you're saying that it doesn't protect with regards to gender identity? Rather, with sex-based expectations—so it protects a male who wears a dress, not a male who identifies as a female? Forgive me if I misunderstood. I very much want to get it right!
Lisa, here is the exact language from Bostock, limiting the holding to Title VII:
The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “ ‘discriminate against’ “ refers to “distinctions or differences in treatment that injure protected individuals.” Burlington N. & S.F.R., 548 U.S. at 59, 126 S.Ct. 2405. Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.
Hi, Lisa: the best person on Bostock is Kara Dansky, if you have a way to get in touch with her, but I will give it a go. The problem with Bostock is that it redefined sex to include gender identity and sexual orientation, rather than, for example set the two categories as new categories. The terrible result of this is that, if you include gender identity, particularly, within the definition of sex, you actually define sex itself out of existence. Now, Bostock is limited to Title VII, but the Obama and Biden administrations made matters much worse by extending the Bostock definition to every place in law and regulation where the word sex appears. Kara’s book, The Abolition of Sex, is where I learned (to my horror) that this had happened—and also that, per the language of the decision itself, this wasn’t necessary, as the majority holding made clear they were not making an interpretation of any regulation except Title VII. But, really, Kara is the absolute go-to person on this, so do get in touch with her, if you have a way to do it.
As I understood the statement of facts in Bostock (which consolidated three cases of 2 gay men and 1 trans-identified man), the trans-identified man was more than a transvestite; he "identified" as a female (the court specifically described him as "transgender status", using quotation marks). But the court was concerned with stereotypes, not his claim to be female. The Supreme Court treated him as a male who had been subjected impermissably to stereotyping in employment. Which is why, when I am asked to explain the case, I describe it as a "reverse stereotype discrimination" case, based on my close reading of the facts, reasoning and holding.
And I'm suggesting that your letter should take care with how it represents Bostock, to avoid perpetuating unwarranted expectations about the scope of the decision.
I'm saying Bostock protects people against employment discrimination on the basis of sex-stereotypes, which includes sex-stereotypes of sexual orientation and what the majority opinion described as "transgender status", which I understood to be the sex-stereotypes of masculinity and femininity (what we used to call "gender").
Yes, that's what it's saying. If a male doesn't confirm to sex-based stereotypes (in this case, "what women wear" and "what men wear"), he can't be fired for it.