Thursday, September 23, 2021

A Critique of Bostock and the Failure of its Formalism to Embrace an Anti-Stereotyping Principle

Anthony Kreis, Unlawful Genders, Law & Contemporary Problems (forthcoming)

Professor Kreis critiques Bostock v. Clayton County for its neglect to expressly embrace an anti-stereotyping principle, which would have more fully revealed the interconnected relationship between discrimination against women and LGBTQ people. He is concerned that the formalistic focus on sex as a textual matter obscured the historical regulation of gender roles meant to oppress both women and sexual minorities. Professor Kreis argues that courts should revisit this more closely in the constitutional law space and analyze LGBTQ-related constitutional claims as sex discrimination.

From the introduction:

There was a real cost to Bostock’s formalism. The majority opinion correctly understood that it is impossible to divorce discrimination on the basis of a person’s sexual orientation or gender identity from their sex assigned at birth. However, beyond noting that a person has to notice and take account of a person's sex before they can take account of their sexual orientation and/or gender identity, the Court did not explain why discrimination is often the result of the connection. Specifically, the Bostock decision failed to sufficiently explain why the link between the two kinds of discrimination is non-severable. This could have been done by applying an anti-stereotyping principle. This principle, which courts have recognized since the 1970s and 1980s in both the employment discrimination context and in constitutional law,  stands for the proposition that gender-based assumptions about what men or women can do and assumptions about how men or women should act are impermissible forms of sex discrimination. While the principle has been applied to a variety of stereotypes that manifest by employers’ and legislators’ expectations of how men and women can or should behave, it has not been broadly applied to claims of discrimination on the basis of sexual orientation, though it has been more regularly applied to gender identity discrimination claims.


Sex stereotype theory can both explain and address anti-LGBTQ discrimination because misogyny, homophobia, and transphobia are inextricable from one another.

Constitutional, Equal Employment, LGBT | Permalink


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