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Sex and transgender status in American employment law – the Bostock case: Elizabeth Hungerford

Elizabeth Hungerford is a licensed, though non practicing, attorney in the Commonwealth of Massachusetts. She identifies as a feminist, lives as a lesbian, is a longtime observer and sometime commenter on matters of sex and gender in American law. Her opinions are solely her own.

The Supreme Court of the United States’ recent employment law decision, Bostock v. Clayton County, Georgia,[1] is full of pleasant surprises. The Court combined the controversial Harris Funeral Homes v. EEOC/Aimee Stephens case with two others, the first of which, Bostock, gave its name to all three and will be known as the Bostock decision. I am, of course, happy with the outcome. I also believe the ruling represents the best possible legal rationale for protecting homosexual and transgender people from irrational sex-based employment discrimination while simultaneously reserving judgement on employment policies that may require sex-based distinctions.

In my view, the Bostock decision, one, gives long overdue employment protections to gays, lesbians, and transgender people; two, takes nothing from women as a class; and three, leaves the door open for existing sex-based exceptions and exemptions to be argued and decided in future cases. I find myself asking: what more could you want?? Now, I might be overly optimistic or just plain wrong, but I am sure that commentators will be parsing the details of this historic judgement for years to come. I offer my thoughts and analysis as just one feminist perspective on the meaning and impact of the Bostock decision.

Please note that I do not provide a legislative or procedural case history, as you can easily find that elsewhere,[2] nor will I discuss all of the issues raised by Bostock, for that would take far too much of everyone’s time. I will focus on the ways that Bostock is a critical but narrow reading of gay and transgender rights, rather than an expansive one, and why sex-based exceptions to the Bostock rule are still on the table for future decisions under both Title VII[3] and other federal statutes. Let’s dive in.

1: OUTCOME AND LEGAL RATIONALE

The first surprise is that we won! And by “we” I mean lesbians. The Bostock ruling is hugely significant because it plugs a massive hole in federal anti-discrimination law that, for over 50 years, has denied hard working lesbians and gay men legal protection against homophobic hiring and firing practices.[4] While many consider same-sex marriage the pinnacle of gay rights, not all homosexual people marry or want to marry. Yet nearly all must work. Nor will marriage save you from poverty if you and your spouse cannot find or sustain employment because you are lesbian or gay.[5] The impact of the Bostock decision is therefore arguably more important, and affects a greater number of people, than the long fight for marriage equality.

Lesbians won. Be happy!

The way we won is also surprising. I did not foresee that the Court might choose to ground protection for homosexual and transgender people in the actual text of the law, hanging their decision on the plain meaning of “sex” as referenced in the Title VII statute. Bostock’s legal rationale is both intuitive and straightforward. Clean and elegant! Best of all, it is extremely strong; much stronger than reliance on case precedent could ever be.[6] Bostock says that protection is clearly required by the statute itself, rendering the decision less vulnerable to overturn than if the reasoning were based in public policy goals or a subjective, context-dependent concept such as “privacy.” This is why I call Bostock’s rationale the best possible basis for the decision: it is both simple and solid. [7]

2: NARROW IMPACT

In yet another surprise, the Court expressly refused to rule on the legality of sex-based dress codes! Again, I did not foresee how they might sidestep such a central issue. But the Bostock decision only mentions dress codes once, near the end, and only to unambiguously excise dress codes and “anything else of the kind” from the scope of the ruling. The following excerpt simultaneously addresses the anxieties of slippery slope prophecies by further disclaiming Bostock’s immediate applicability to other federal statutes:

“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 [emphasis added] 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.”[8]

As this passage makes perfectly clear, Bostock does not apply to any of the contexts or other statutes where a conflict with women’s sex-based protections might arise. Bostock does not apply to bathroom policies. Bostock does not apply to locker room policies. Bostock does not apply to dress code policies. Bostock does not apply to Title IX. Bostock does not apply to the Affordable Care Act (ACA).[9] There is no requirement that employers or employees recognize transgender people’s preferred, rather than biological, sex-based identity. The Court carefully removed all of these messy complications from the scope of the Bostock decision.

The Court also took pains to prohibit only hiring, firing, and—from the actual text of the Title VII statue—conduct that “discriminate[s] against any individual with respect to his compensation, terms, conditions, or privileges of employment.” While at least two radical feminist organizations have expressed concern[10] that this ruling will be misinterpreted by lower courts and applied in a way that harms women, the Supreme Court could hardly have issued a clearer mandate to exercise restraint:

“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. Firing employees because of a statutorily protected trait surely counts [as injurious]. Whether other policies and practices [emphasis added] might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII [emphasis added] are questions for future cases, not these.” [11]

In other words, the Bostock decision does not stand for and should not be leveraged to support a finding of discrimination in relation to any other employment policies or practices beyond the simple fact and terms of employment itself.

It remains true that no one knows the fate of current or future cases needed to settle questions about the huge variety of other employment policies and practices. But this does not make Bostock broad or bad; it just means that we don’t have a time machine. Uncertainty about fact patterns and legal arguments that the Supreme Court has not yet heard or ruled on are just part of life. I cannot stress strongly enough that there has always been uncertainty about the collision of sex and gender (identity) in American law. In this respect, Bostock resolved very little. But perhaps more importantly, even if the Bostock ruling is eventually carried over to other federal statutes such as Title IX or the ACA, the Court made clear that certain kinds of exemptions and exceptions are still on the legal table.

PART 3: SEX-BASED EXEMPTIONS AND EXCEPTIONS STILL LEGAL

After seriously limiting the scope of the Bostock decision, the Court calls attention to another legal construct that might be successfully applied as a workaround to their new rule. Specifically, the Religious Freedom Restoration Act is described as a super statute that might supersede the anti-discrimination mandates of Title VII.[12] As a feminist political matter, religious exemptions represent one of the conservative right’s most powerful legal strategies to erode protections designed to benefit both women and LGBT people.[13] Religious “freedom” does not provide a safe or reliable refuge for women’s sex-based needs but does excuse true believers from compliance with the law.

I therefore wish the Bostock decision had also called out the secular bona fide occupational qualification (BFOQ) exemptions that are actually embedded in the Title VII statute.[14]  However, in spite of not formally citing this subsection where they might have, BFOQ exemptions are almost certainly what the Court means when it says (quoted above) that future cases might “find justifications under other provisions of Title VII.” As such, I have no reason to believe this ruling disrupts sex-based BFOQs in any way. Quite the opposite, I believe the Court’s nod to “other provisions of Title VII” means that women can and should continue to bring cases involving sex-based BFOQs, when appropriate.

I want to quickly note here, before moving on, that Title IX—the federal anti-discrimination statute governing education, including girls’ sports teams—also features sex-based exceptions and/or exemptions. As a proud graduate of an all-women’s private college, I know there are many supporters of these quirky little legal harbors. If the basic high-level protection offered by Bostock is extended to Title IX admissions and academics, generally, I will also support that future ruling because I believe that at least some sex-segregated spaces and contexts can and will be legally preserved.

4: BIOLOGICAL SEX, TRANSGENDER STATUS, AND WOMEN

The final surprise is not in the decision itself, but in my own changed view about the legal harms of protecting “transgender status.” Previously, I said that a decision based on “transgender status” was the worst-case scenario. I am happy to say that I was wrong! The Court managed to protect transgender people while limiting the reach of the ruling into any of the sex-segregated realms women might seek to preserve and defend.

Here is what I wrote in October 2019:

“If SCOTUS uses “transgender status” to find in Stephens’ favor, as the Sixth Circuit did, I believe it presents the worst case scenario from a feminist legal perspective. The reason I say this is we don’t know how the concept of “transgender status” would interact with traditional understandings of (biological) sex under Title VII’s anti-discrimination protections.”[15]

The second sentence is important: how does “transgender status” interact with biological sex under Title VII? Well, the Bostock decision gives us an idea. And I’m not scared. Because biological sex is framed as a necessary referent to “transgender status.”

Much has been made about the fact that Bostock uses a definition of “sex” that ”refer[s] only to biological distinctions between male and female”[16] yet, later in the decision, the Court repeatedly describes people as being “identified as [male or female] at birth.” The latter is phrasing that many feminists find offensive and I agree should have been more clearly worded. However, none of this language about identity is binding on future decisions,[17] so I will not belabor the implications.

What is important and legally significant is that sex has been defined primarily as biological. The Court acknowledged in Bostock that one must know and anchor an individual’s biological sex before assessing whether that person may be considered homosexual or transgender. In other words, you must know the biological value of male or female in order to calculate whether a particular individual is homosexual or transgender. Biological sex is a conceptual prerequisite.

At least one explanation offered by the Court is framed with the familiar echo of feminist objections to the circularity of statutory definitions that use gender to explain gender identity:[18]

“There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done.”[19]

The Court’s use of biological sex, even as mere referent, offers women an excellent foundation for future cases where specific characteristics related to biological sex (including distinctions between male and female) become uniquely meaningful in the context of sex-segregated spaces, organizations, and activities. Knowing that the Court expressly reserved judgement on locker rooms, bathrooms, and other employment policies and practices, including the possibility of BFOQ exemptions; Bostock’s dependence on biological sex might just be the perfect welcome to cases seeking to justify legal protection for certain types of rational sex-specific discrimination.

Putting biological sex and transgender status together, I read nothing in Bostock that provides a new avenue for legal recognition as the opposite sex.[20] Perhaps more importantly, I do not believe there is  any harm done to individual women or to women as a class by recognizing and protecting “transgender status” as described in Bostock.

To test my assertion of harmlessness, let’s imagine the potential harm that might be caused by applying Bostock with the broadest possible reading of the term “transgender.” Assume that “transgender status” means self-identification and nothing more. Mere performative utterance: “I say I am transgender, therefore I am transgender!” You might even imagine a large biologically male person with a beard who takes no other social or legal action to transition, but simply declares himself “a woman” and therefore “transgender.”

What does Bostock require of this person’s employer or potential employer? Bostock requires that employers not fire or refuse to hire this person merely because[21] they (say they) are transgender. Bostock requires that employers not pay this person less than other comparable employees doing the same job merely because they are transgender. Bostock requires that employers not give transgender employees all the most difficult tasks in the workplace or deny them earned time off merely because they are transgender.

And what would Bostock’s protection for a transgender employee as described above change about women’s employment rights under the law? Nothing! Bostock does not require that male transgender people be allowed to use the women’s bathroom or women’s locker room or to perform pat downs of female customers, if that’s part of the job. Bostock does not even mandate employers to recognize transgender employees consistent with their chosen identity or to use preferred pronouns when speaking with or about them.

Women’s legally permitted sex-based enclaves, scant though they may be, remain wholly untouched by the Bostock decision. At the same time, Bostock has given countless biological females legal protection from irrational employment discrimination because of our disclosure (or an employer’s perception) that we are homosexual and/or transgender. So, yeah, I was completely wrong about “transgender status being the worst-case scenario from a feminist legal perspective.” On the contrary, protection for “transgender status” as described in Bostock is not only perfectly harmless from my feminist legal perspective, it is righteous and just.

CONCLUSION

The Supreme Court’s Bostock decision gave us strong, straightforward, and clearly fenced protection for homosexual and transgender people from irrational sex-based discrimination in the workplace. Significantly, Bostock also refused to disturb any of the sex-based employment policies and practices currently in effect. Finally, Bostock may have given women a pretty sweet set-up for future cases through which sex-based protections in limited but important contexts can be legally justified by biological distinctions between male and female humans. That’s a lot more than I dared to dream possible.

Legal strategy and progress is a long game. The historic Bostock ruling is one huge step forward.

3rd July 2020

 

[1] Bostock v. Clayton County, No. 17-1618 (U.S. Jun. 15, 2020)

[2] See SCOTUS Blog for all the case details, last accessed 6/27/2020: https://www.scotusblog.com/case-files/cases/bostock-v-clayton-county-georgia/

[3] Civil Rights Act of 1964 § 7, 42 U.S.C. § 2000e et seq (1964).

[4] Margaret R. Ryniker (2008) Lesbians Still Face Job Discrimination, Journal of Lesbian Studies, 12:1, 7-15, DOI: 10.1300/10894160802174235

[5] Many states have failed or refused to pass anti-discrimination legislation protecting homosexual and transgender people. See this color-coded map, last accessed 6/27/2020: https://www.lgbtmap.org/equality-maps/employment_non_discrimination_laws

[6] Before the Bostock decision was released, I argued for a Price Waterhouse/sex stereotyping decision because I thought it was more likely in general and because it might carry the additional benefit of explicit legal protection for gender non-conforming people.

[7] The text-based rational is considered conservative by many commentators, but I find it refreshingly straightforward and logical.

[8] Bostock, page 31.

[9] There has been speculation, most notably from the ACLU, claiming that the Bostock decision “should mean” that transgender and homosexual people are also protected under other federal statutes including the ACA. See https://www.aclu.org/news/lgbt-rights/what-todays-supreme-court-ruling-means-for-the-lgbtq-community/ and https://www.aclu.org/news/lgbt-rights/supreme-court-says-firing-workers-because-they-are-lgbtq-is-unlawful-discrimination/. For another view, see: https://www.healthaffairs.org/do/10.1377/hblog20200615.475537/full/. All web pages last accessed 6/28/2020.

[10] See the statements of both Women’s Liberation Front (WoLF), discussed here https://4w.pub/scotus-lgbt-discrimination/, and Feminists in Struggle (FIST) here: https://feministstruggle.org/2020/06/19/supreme-court-ruling-cause-for-celebration-and-concern/. Both webpages last accessed 6/28/2020.

[11] Bostock, pages 31-32.

[12] Bostock, page 32.

[13] See this report titled “When Exemption Is the Rule: The Religious Freedom Strategy of the Christian Right” from Political Research Associates, last accessed 6/27/2020: https://www.politicalresearch.org/2016/01/12/when-exemption-is-the-rule-the-religious-freedom-strategy-of-the-christian-right

[14] Civil Rights Act of 1964 §7, 42 U.S.C. §2000e–2(e)(1) allows for “instances where religion, sex, or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of [a] particular business or enterprise.”

[15] See Sex and gender: the law in the USA, last accessed 6/29/2020: https://womansplaceuk.org/2019/10/19/sex-and-gender-the-law-in-the-usa/.

[16] Bostock, page 5.

[17] Id. “[B]ecause the employees concede the point for argument’s sake, we proceed on the assumption that “sex” signified what the employers suggest, referring only to biological distinctions between male and female. Still, that’s just a starting point. The question isn’t just what “sex” meant, but what Title VII says about it.”

[18] In other words, how can one know gender identity with defining gender? And how can one define gender without using the words man, woman, or sex stereotypes (or some synonym)?

[19] Bostock, page 18

[20] See Alliance Defending Freedom’s attorney Kate Andersen’s comments here, describing how women lose under Bostock: “So, this is a drastic change in the law that calls into question whether women are going to be protected as they have been. If men can be women under the law, then those protections really go away.” Last accessed 6/21/2020: https://www.dailysignal.com/2020/06/18/problematic-women-how-women-lose-in-supreme-courts-decision-to-redefine-sex/

[21] I’m not even covering “but-for” causation. “Merely because” is close enough because the legal mechanics of multiple causation are not relevant to my point.

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