Guest Post by Joshua Silverstein on Bostock, Part IV

THOUGHTS REGARDING BOSTOCK V. CLAYTON COUNTY, THE U.S. SUPREME COURT DECISION HOLDING THAT TITLE VII PROHIBITS DISCRIMINATION BASED ON SEXUAL ORIENTATION AND TRANSGENDER STATUS.

A Guest Post by Joshua Silverstein (left)

Part I is here.

Part II is here.

Part III is here.

Part IV: Supplemental Thoughts Regarding the Majority’s Conceptual Claim About Discrimination Based on Sexual Orientation or Transgender Status.

This post sets forth my own analysis designed to bolster the majority conceptual claim in  Bostock that discrimination based on sexual orientation or transgender status necessarily involves discrimination based on sex.  To keep today’s discussion to a manageable length, I focus on sexual orientation and largely set aside transgender status.

Let’s start by returning to Justice Gorsuch’s key example.   Recall that the defendants and Justice Alito objected to that example by contending that proper analysis requires changing the sex of the employee (from male to female), while preserving the sexual orientation of the employee (homosexual), so that only one characteristic of the employee has been altered rather than two.  That means that we must shift from a male attracted to men to a female attracted to women.  Notice that while this does keep sexual orientation constant when altering the employee’s sex, it still results in a second change to the employee: the sex of the people the employee is attracted to is different.  Under the initial facts, the employee is attracted to men.  In the revised facts that we shift to in order to test for but-for causation, the employee is attracted to women.  This is an extremely important factual change.

The defendants and Justice Alito assert that changing the sex of the employee in the key example but not changing the sex of the people the employee is attracted to alters two things—both the employee’s sex and the employee’s sexual orientation.  The but-for causation test asks whether sex standing alone makes a difference, so we must only change one thing—the sex of the employee.  In addition to the majority’s response discussed yesterday, which I find persuasive, my point today is that changing the sex of the employee and keeping sexual orientation constant also alters two things—the employee’s sex and the sex of the people the employee is attracted to. 

On the surface this suggests that we have to decide which alteration enables us to better apply the but-for test: (1) change the employee’s sex, but keep the employee’s sexual orientation constant (homosexual), as the defendants and Justice Alito argue, which necessarily also changes the sex of the people the employee is attracted to; or (2) change the employee’s sex, but keep the sex of the people the employee is attracted to constant (men), as the majority initially argues, which necessarily also changes the employee’s sexual orientation.  How do we decide?  In my view, there is no logical way to do so.  But it doesn’t matter.  That is because the lack of grounds to decide which way to alter the hypo itself further demonstrates the unavoidable conceptual connection of sex and sexual orientation (and transgender status).

Think about it this way.  It is logically impossible to change the sex of the employee in the majority’s key example without changing either the employee’s sexual orientation or the sex of the people the employee is attracted to.  In other words, it is impossible to change only the sex of the employee in a hypo that attempts to test whether sex or sexual orientation is the but-for cause of an adverse employment decision.  We must also change either the employee’s sexual orientation (and thus not change the sex of the people the employee is attracted to) or the sex of the people the employee is attracted to (and thus not change the sexual orientation of the employee).  If sex is that closely connected to sexual orientation—if it is literally impossible to construct an employment discrimination hypothetical involving sex and sexual orientation in which the only fact that gets changed is the sex of the employee—then it should not be surprising that discrimination based on sexual orientation necessarily involves discrimination based on sex.  To once again use the majority’s language, sex is “inextricably bound up” with sexual orientation (and transgender status).

Note that I agree with the majority’s concession that “homosexuality and transgender status are distinct concepts from sex.”  Maj. Op. at 19.  And there certainly isn’t a perfect overlap between the various types of discrimination.  Most obviously, not all types of sex discrimination involve sexual orientation or transgender status discrimination.  But the majority’s point—correct in my view—is that even though you can have sex discrimination without sexual orientation or transgender status discrimination, you cannot have sexual orientation or transgender discrimination without having sex discrimination.  (Think Venn diagrams where discrimination based on sexual orientation or transgender status are circles inside the circle that constitutes sex discrimination.)

Tomorrow’s final post addresses why Title VII can prohibit discrimination based on sexual orientation and transgender status even though no one in 1964 believed that the statute would have this impact.