This week, we will discuss the Bostock decision and its impact on discrimination based on sex. Please answer all questions below.
1. Summarize the Bostock decision. Who were the parties? What was the dispute? How did the court rule? How has the court’s ruling changed the legal landscape around discrimination based on sex?
2. With the ruling in Bostock in mind, is an employer legally permitted to force a transgender employee to use the restroom that corresponds to their birth sex? Why or why not?
**Please integrate the weekly lessons, readings, and resources into your answer. Full citations are not required, but informal attribution is necessary. For example, “as noted in the e-text” would suffice for content attributed to the e-text sections assigned.
Supreme Court ruling on 3 cases…
In June of 2020, the U.S. Supreme Court ruled in Bostock that discrimination by an employer based on sexual orientation or gender identity is discrimination based on sex. Often, the U.S. Supreme Court will combine multiple cases with a similar legal question into one decision. That is what happened in Bostock, where three cases were decided together. Each case concerned an individual who was terminated by their employer based solely on their sexual orientation or gender identity. Each employee (the plaintiffs) claimed sex discrimination under Title VII of the Civil Rights Act of 1964. One Circuit Court (the 11th circuit) held that the employer was not prohibited from terminating an employee based on their sexual orientation. The two other Circuit Courts (the 2nd and 6th), held that federal law did prohibit termination on these grounds. The Supreme Court will often take up a case on appeal when there is disagreement among the Circuit Courts. In its decision, the U.S. Supreme Court held that employer who fires an individual merely for being gay or transgender violates Title VII. “When an employer fires an employee for being homosexual or transgender, it necessarily intentionally discriminates against that individual in part because of sex.” (Bostock, 2020)
In the time since the Bostock decision, several lower courts have applied the logic to cases involving Title IX, which applies to educational institutions that receive money from the federal government. In January 2021, President Biden “issued an executive order directing federal agencies to implement Bostock and enforce federal prohibitions on sex discrimination against discrimination based on sexual orientation or transgender status as well. The executive order specifically mentioned Title IX, the Fair Housing Act, and section 412 of the Immigration and Nationality Act…” (The Constitutional Accountability Center, 2021)
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