On June 15, 2020, the US Supreme Court decided Bostock v. Clayton County, declaring that the 1964 Civil Rights Act’s Title VII prohibitions on discrimination on the basis of sex in the workplace must be understood to protect individuals from discrimination on the basis of one’s sexual orientation or gender identity. This decision is a significant victory for LGBTQ rights and extends much-needed substantive legal protections to LGBTQ individuals in the workplace. Notably, the majority was comprised of an unexpected coalition of six justices that crossed ideological lines with Justice Gorsuch writing the opinion joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan.
In Before Bostock, Jason Pierceson offers a compelling analysis that recasts the Bostock decision from an unexpected LGBTQ legal win to the logical culmination of decades of Title VII litigation by activists, civil rights groups, and courageous individuals, as well as legal theorizing by judges, lawyers, and legal scholars alike. Pierceson traces the federal courts’ evolving statutory interpretation of Title VII across the decades to elucidate how and why these six justices, in Justice Gorsuch’s words, agreed that “‘[h]omosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex’” (pp. 160–61).
As the title of the book indicates, Pierceson focuses much of his attention on how the US Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, which recognized that gender stereotyping in the workplace is “sex” discrimination and constitutes a Title VII violation, inadvertently paved the way for the Bostock decision. While Price Waterhouse at least theoretically (disagreements remained in the lower courts) extended Title VII protections to transgender employees who now had legal recourse to challenge their terminations based on their failure to conform with gender stereotypes, the same was not true for gay and lesbian workers.
As such, equally important to Pierceson’s analysis is the Court’s 1998 decision in Oncale v. Sundowner Offshore Services, Inc. Here, in a unanimous decision written by Justice Scalia, the Court ruled that Title VII’s prohibitions on sexual harassment (itself a product of the Court’s statutory interpretation) include same-sex sexual harassment. Focusing on purpose, rather than legislative intent, Scalia explained, “‘male-on-male sexual harassment in the workplace was assuredly not the principal evil Congress was concerned with when it enacted Title VII. But statutory prohibitions often go beyond the principal evil to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed’” (p. 81). Pierceson explains that Oncale is “pivotal in connecting Price Waterhouse to issues of sexual orientation,” thereby enabling the Bostock majority to determine that Title VII’s prohibitions on sex discrimination include both gender identity and sexual orientation (p. 14). At the same time, Pierceson’s analysis suggests that Justice Scalia’s approach to interpreting Title VII in Oncale informed and, arguably, provided cover for Justice Gorsuch to engage in a similar type of statutory analysis in Bostock in spite of opposition from three of his conservative brethren who rejected his reasoning and dissented.
Arguably, the book’s most significant contribution is Pierceson’s focus on the federal courts’ approach to statutory interpretation, as opposed to constitutional interpretation, which is a much-needed addition to the law and courts scholarship. As Pierceson makes clear, statutory interpretation implicates unique approaches and considerations, including questions of legislative intent and how antecedent legislative history informs new legislation and policies, and Beyond Bostock demonstrates these competing considerations at work in the context of Title VII sex discrimination litigation. In particular, Pierceson effectively illustrates how the “costs” associated with statutory interpretation are often lower than constitutional interpretation for conservative judges because legislatures retain the power to “correct” judicial interpretations of statutes via the legislative process if court decisions are out of step with public opinion or legislative majorities. While the conservative establishment’s reaction to the understanding of “sex” expressed by Justices Gorsuch and Roberts in Bostock does not seem to be any less vitriolic because it involves a statute as opposed to the Constitution, the Court’s decision was in line with public support for protecting LGBTQ individuals from workplace discrimination and did not instigate Congress to take steps to limit protections from sex discrimination. To the contrary, congressional legislative efforts in the area of LGBTQ rights continue to focus, albeit unsuccessfully, on expanding civil rights protections.
Furthermore, Pierceson’s extensive evaluation of the opinions of federal district and appellate court judges and Supreme Court justices in Title VII sex discrimination cases makes clear that an appointing president’s political party does not directly correlate to one’s judicial decisions in this area of law because of the complexities and liberties of statutory interpretation. As such, the reader comes to understand Justice Gorsuch’s Bostock opinion as consistent with his commitment to a textualist analysis (as opposed to legislative intent or history) which required him to rely on the plain meaning of the word “sex” and conclude that “it is impossible to discriminate against these identities without discriminating because of sex” (p. 163).
Pierceson concludes that the future of Bostock and its full legal reach remain to be seen because the federal courts will inevitably be asked to weigh in on a number of related issues including, but not limited to, the meaning of the word “sex” in other federal laws and policies such as Title IX and religious exemptions to compliance with local, state, and federal civil rights protections for LGBTQ individuals (here, the replacement of Justice Ginsburg with Justice Barrett and Chief Justice Roberts’s sympathies suggest that a majority might be receptive to these religious freedom arguments). At the same time, however, Pierceson is correct that the Bostock decision is evidence that “activists can carefully leverage the judicial process to achieve their goals, using the resources of a dynamic and evolving legal system” (p. 171). And while much work remains to be done, the Bostock precedent will inevitably inform how judges approach these and other issues moving forward. That being said, rights-based and court-focused strategies are often long plays, as Pierceson’s analysis makes clear, and it is imperative that activists and allies focus their efforts on a broad array of locations of injustice and across institutions, to include the courts, to facilitate transformative change and advance LGBTQ interests and rights in the here and now. This is especially true in light of the backlash against trans rights that followed the Bostock decision as a number of states and locales passed transphobic legislation, and as violence against trans individuals increases each year.
In closing, Pierceson covers a lot of legal ground in Before Bostock, and individuals interested in the evolution of Title VII in the context of sex discrimination will enjoy his attention to the details of the many lower court, EEOC, and Supreme Court cases. For a book that focuses a great deal of attention on the nuances of judicial decision making, Pierceson avoids legal jargon in favor of a writing style that is accessible to a broad audience, to include undergraduate and graduate students. As a law and courts scholar who was surprised by the Court’s Bostock decision, Before Bostock enhanced my own understanding of how and why the majority reached its decision, and I think that others will similarly benefit from Pierceson’s research.
