Queering Bostock

Editor's Note:   Prof. Jeremiah Ho. has a new article addressing Bostock v Clayton County, Georgia.  Prof. Ho examines the limitations of the opinion, including the opinion's design to maintain the status quo for members of the LGBT+ community and those who benefit from the current social structure.  The article, Queering Bostock, is to be published imminently in the American University Journal of Gender, Social Policy & the Law, Vol. 29, No. 3, 2021.  Queering Bostock is available on SSRN.  

Below is the abstract:

Although the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases that invigorate discrimination against queer individuals. In contrast, Bostock avoids any meaningful acknowledgment of the lives of the litigants or the experiences of anti-queer bias in exchange for a lengthy illumination of Justice Gorsuch’s textualist rationale.

When conceptions of sexuality and gender identity have been previously mischaracterized in favor of mainstream heteronormative values, the lived experiences of queerness are paramount for detecting discrimination and correcting it. This Article argues that Bostock’s neglect of queer lived experiences was not a forgivable oversight, merely collateral to its expansive textualist reading of Title VII. Rather, the neglect of lived experiences and anti-stereotyping frameworks was the price queer minorities had to pay for Title VII protection. In this way, this Article shows that Justice Gorsuch’s lack of regard for the lived experiences in Bostock tacitly privileges heteronormative values, underscores the status quo’s interest convergence, and ultimately limits the decision’s transformative appeal.