Lessons from Bostock: Analysis of the Jurisprudential (Mis)Treatment of “Sex” in Title VII Cases

Authors

Allison Greenberg

Abstract

The Supreme Court’s decision in Bostock v. Clayton County extended Title VII’s prohibition on sex discrimination to lesbian, gay, and transgender individuals. This decision represents the latest step forward in a long line of Title VII jurisprudence, which slowly expanded the definition of “sex” as the cultural understanding of sex, gender identity, and sexual orientation improved. This Note critically reviews that history of jurisprudence, using the Bostock decision as a frame to examine the ways in which the courts’ definition of “sex” has evolved out of a flawed understanding of the relationships between sex, gender identity, and sexual orientation as categories. This Note argues that the Bostock decision, while a great victory for gay and transgender plaintiffs, nonetheless leaves unprotected those individuals who do not conform to a binary interpretation of sex in their gender expression or sexual orientation. The Note concludes with a discussion of potential solutions that would guarantee non-discrimination protections for those whose identities do not conform to the gender binary.

Recommended Citation

Allison Greenberg, Lessons from Bostock: Analysis of the Jurisprudential (Mis)Treatment of “Sex” in Title VII Cases, 13 U.C. Irvine L. Rev. 317 (2022).
Available at: https://scholarship.law.uci.edu/ucilr/vol13/iss1/11