Article
Bostock v Clayton County: A Pirate Ship Sailing Under A Textualist Flag
Regent University Law Review
(2020)
Abstract
While heralded by many as a momentous civil rights moment for those who identify as homosexual or transgender, the Supreme Court’s decision in Bostock v. Clayton County ushers in new threats to the safety, well-being, and constitutional rights of many Americans.1 In Bostock, the Supreme Court announced that the plain language of the historic 1964 civil rights legislation that prohibited discrimination based on “race, color, religion, sex, or national origin,”2 also prohibited discrimination based on homosexual or transgender status because it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”3 Putting aside for the moment the validity of the statutory interpretation reflected in the decision, which will be discussed later, there are significant policy questions left unanswered that impact the daily lives of many.
*40 The Supreme Court’s holding that sex discrimination in Title VII now includes discrimination based on sexual orientation and gender identity raises more questions than it answers. For example, does sex discrimination in other federal statutes and under the U.S. Constitution also include sexual orientation and gender identity?4 If not, on what basis will that distinction be made? Does the Bostock decision mandate a conclusion that people can use the bathroom or locker room that is consistent with their gender identity but inconsistent with their biological sex? The same question applies to college dormitories. Must biological men be permitted to compete in women’s sports in schools (Title IX) or professionally (Title VII)? Do hospitals and doctors engage in sex discrimination in the provision of medical services if they refuse to provide sex reassignment surgery to a man who believes he is a woman, or vice versa? And, what about religious organizations with sincerely held religious beliefs that conflict with the notion that people can change their sex or that same-sex attractions are acceptable? Will the ministerial exception protect their employment decisions and, if so, for what types of employees?
These are just a few of the questions that were left for another day.5 But, as Justice Alito’s dissenting opinion points out, the answers to those questions were not left entirely on a clean slate.6 Rather, the Supreme Court jumped in to cut short the ongoing legislative process over whether to add sexual orientation and gender identity to various federal laws. As a result, “the Court has greatly impeded--and perhaps effectively ended--any chance of a bargained legislative resolution” of the legitimate, competing interests.7 That “bargained legislative resolution” could have weighed the competing interests of homosexuals and transgender individuals against the significant interests mentioned above; all too often, those interests are ignored or trivialized. Whether it is a school forced to grant boys access to the girls’ locker room, a physician who is forced to perform a double mastectomy on a woman who wants to be a man, prisons required to house men in women’s facilities, or businesses forced to compromise their sincerely held religious beliefs or other business standards, courts often overlook the religious, scientific, and medical beliefs, or other significant interests of those required to accommodate a person’s sexual orientation or gender identity.
Only time will tell how broadly the Bostock decision will sweep. For the moment, we should be concerned with the willingness of a majority of *41 the Court to engage in “legislation” under the guise of plain language statutory interpretation.8
Disciplines
Publication Date
Fall December 19, 2020
Citation Information
Rena M Lindevaldsen. "Bostock v Clayton County: A Pirate Ship Sailing Under A Textualist Flag" Regent University Law Review Vol. 33 (2020) p. 39 Available at: http://works.bepress.com/rena_lindevaldsen/15/