Can the Reasonable Person Be Religious? Accommodation and the Common Law

Since the 1990s, in theory, the Supreme Court has applied rational basis review to neutral and generally applicable laws that incidentally burden religious practice. Strict scrutiny is reserved for those laws that lack neutrality or general applicability. In practice, however, free exercise jurisprudence has developed quite differently. Employing an aggressive exemption strategy, many petitioners have argued, and many courts have accepted, that the existence of but one secular exemption eliminates the neutrality and general applicability of a law. As such, strict scrutiny is applied. For those who would prefer to return to the free exercise jurisprudence that predated Employment Division v. Smith, this result may seem welcome, even a victory. This Note, however, suggests that such an approach should raise concern.

This Note argues that this aggressive exemption free exercise theory requires the reasonable person standard of torts to accommodate parties’ religious beliefs. Many courts that have addressed the issue have found the same. This Note then surveys the three responses courts have taken to accommodate religious belief in tort law: the “objective” approach, “the reasonable believer” test, and the “case-by-case” method. Fundamental Free Exercise and Establishment Clause problems with the “objective” and “reasonable believer” approaches demonstrate the superiority of a “case-by-case” analysis. That any accommodation is required, however, should give pause.

It is not the specific contours of tort law that give rise to the required accommodation, but rather the heavily individualized decision-making process that tort law uses. Individualized decision-making is not a symptom, but rather a feature, of the common law. As such, finding a required religious accommodation to tort law has broad ramifications for our standards-based legal system. This Note argues that this outcome suggests a fundamental flaw with the Court’s aggressive exemption free exercise jurisprudence.

Introduction

Marbury v. Madison teaches us that the judicial branch has the power to review the constitutionality of governmental acts.1.5 U.S. (1 Cranch) 137, 177–78 (1803).Show More This power of review comes up most frequently when congressional or state legislative acts run afoul of the Constitution. But what happens when someone claims that the common law, a product of judges and purportedly applied uniformly to all citizens, burdens a constitutional right? Can people demand exemptions from a tort standard solely because of a claim of individualized burden? Consider the following scenarios:

In May 1991,2.Verdict Form, Williams v. Bright, 632 N.Y.S.2d 760 (N.Y. Sup. Ct. 1995) (No. 17261/92), 1994 WL 16200195.Show More Gwendolyn Robbins was traveling through upstate New York with her father when he swerved their vehicle off the road and into a culvert at sixty-five miles per hour. Mrs. Robbins, severely injured in the crash, was rushed to a local hospital for surgery. Once there, however, she learned that proper treatment would require blood transfusions. She refused on grounds that it would violate her religious beliefs as a Jehovah’s Witness. In the face of increased medical expenses and a reduced quality of life, Mrs. Robbins remained steadfast in refusing surgery. She later pressed for damages and the cost of continuing care in a negligence suit against the owner of the car.3.Facts consolidated from trial and appellate court decisions. Williams v. Bright, 632 N.Y.S.2d 760, 762–63 (N.Y. Sup. Ct. 1995), rev’d in part, 658 N.Y.S.2d 910, 911 (N.Y. App. Div. 1997).Show More

In August 1963, sixteen-year-old Ruth Eider was in a chairlift traveling down a mountain when the operator negligently stopped the lift. It was late afternoon and she and her nineteen-year-old male companion were stuck. After fifteen minutes of yelling, it became clear that no one was coming to help. Raised in an ultra-orthodox Jewish household, Ms. Eider had been taught that spending the night with a man in a place inaccessible to a third party was an overwhelming moral sin. Facing this prospect, Ms. Eider jumped from the lift. She eventually sued the State of New York (the operator of the mountain) for the cost of the injuries sustained in the jump.4.Friedman v. State, 282 N.Y.S.2d 858, 859–63 (N.Y. Ct. Cl. 1967), modified, 297 N.Y.S.2d 850 (N.Y. App. Div. 1969).Show More

In March 2006, Marine Lance Corporal Matthew Snyder was killed in the line of duty in Iraq. Shortly thereafter, his father scheduled a funeral to commemorate his life for close friends and family. Members of the Westboro Baptist Church, a fundamentalist Christian sect, used this funeral as an opportunity to highlight their condemnation of homosexuality. They protested outside the ceremony carrying signs with slogans like “Thank God for dead soldiers,” “God hates you,” and “Semper fi fags” to spread their message. Mr. Snyder’s father sued the Church for intentional infliction of emotional distress (“IIED”). In response, the Westboro Baptist Church claimed complete immunity from tort liability on both free speech and free exercise of religion grounds.5.Snyder v. Phelps, 533 F. Supp. 2d 567, 569–70 (D. Md. 2008), rev’d, 580 F.3d 206 (4th Cir. 2009), aff’d, 562 U.S. 443 (2011). The district court dismissed the free exercise claim, distinguishing statutory and criminal restrictions on religious practice from other types of restrictions. Id. at 579. This Note suggests that the case law and logic of free exercise jurisprudence do not support such a distinction.Show More

Although these three incidents, separated by over four decades, would seem to have little in common, the tort suits they spawned had to grapple with a question that has beguiled courts for years: In determining culpability, to what extent can tort law be modified to accommodate the strongly held religious beliefs of a party?6.The first court to address this question was the Supreme Court of Errors of Connecticut in Lange v. Hoyt,159 A. 575, 577–78 (Conn. 1932). Understanding the difficulty of the issues raised, “[n]ot surprisingly, the Connecticut trial court ducked the issue and the Connecticut Supreme Court (of Errors as it then was) affirmed the ducking” by allowing the jury to consider that the plaintiff’s religious beliefs were widely held in determining reasonableness. Guido Calabresi, Ideals, Beliefs, Attitudes, and the Law: Private Law Perspectives on a Public Law Problem 47 (1985). Modern courts have similarly struggled with this question. SeeMunn v. S. Health Plan, Inc., 719 F. Supp. 525, 526 (N.D. Miss. 1989) (“This wrongful death case [involving a decedent who refused a blood transfusion on religious grounds] presents some of the most difficult questions which this court has ever been asked to resolve.”); Rozewicz v. N.Y. City Health & Hosps. Corp., 656 N.Y.S.2d 593, 594 (N.Y. Sup. Ct. 1997) (“[T]he issues before me dealing with the deceased’s refusal to accept blood transfusions raise[] some of the most difficult legal issues I have been faced with during my years on the bench.”).Show More That is, when, if ever, can religion be a valid justification for ignoring the purportedly generally applicable standards of the common law?

At first glance, the answer to that question would seem to be never. The basic command of tort law is to “be reasonable.”7.“Unless the actor is a child, the standard of conduct to which he must conform to avoid being negligent is that of a reasonable man under like circumstances.” Restatement (Second) of Torts § 283 (Am. L. Inst. 1965).Show More Reasonableness permeates the legal system in one form or another, a lodestar which guides court decision-making,8.See Benjamin C. Zipursky, Reasonableness In and Out of Negligence Law, 163 U. Pa. L. Rev. 2131, 2135–46 (2015) (detailing the many permutations of reasonableness).Show More and is determined “objectively.”9.See Vaughan v. Menlove (1837) 132 Eng. Rep. 490 (C.P.) (discussing the importance of an objective standard of reasonableness and rejecting inquiry into subjective motivation).Show More This would appear to foreclose any consideration of parties’ subjective religious motivation. Over the years, however, a number of courts and commentators have realized that the answer is not that simple, particularly when “objective” reasonableness conflicts with the Religion Clauses of the First Amendment.10 10.Seesupra note 6; see, e.g., Jeremy Pomeroy, Note, Reason, Religion, and Avoidable Consequences: When Faith and the Duty To Mitigate Collide, 67 N.Y.U. L. Rev. 1111 (1992); Note, Medical Care, Freedom of Religion, and Mitigation of Damages, 87 Yale L.J. 1466 (1978) [hereinafter Medical Care].Show More In response, these courts and commentators have wrestled with a framework for accommodating religious belief in reasonableness calculations. Most of these approaches, however, arose well before the Supreme Court’s modern free exercise jurisprudence came into focus in Employment Division v. Smith.11 11.Emp. Div., Dep’t of Hum. Res. v. Smith, 494 U.S. 872 (1990).Show More Consequently, they do not deal with current developments in First Amendment law. Furthermore, they fail to grapple with the serious Establishment Clause concerns raised by exempting individuals from complying with a reasonableness standard.12 12.See Anne C. Loomis, Thou Shalt Take Thy Victim as Thou Findest Him: Religious Conviction as a Pre-Existing State Not Subject to the Avoidable Consequences Doctrine, 14 Geo. Mason L. Rev. 473, 505–09 (2007) (purporting to address Establishment Clause concerns but failing to consider the full gamut outlined infra in Part II).Show More In our common law system, which is built upon a similar edifice of individualized reasonableness determinations, these considerations could reverberate broadly. This Note will attempt to address these issues.

Part I will argue that the Supreme Court’s First Amendment jurisprudence after Smith not only allows, but requires, religious accommodation where application of the reasonable person standard burdens sincerely held religious belief. In reaching this conclusion, this Part will first show that the reasonable person standard lacks the neutrality and general applicability required under Smith and its Free Exercise Clause companion, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah.13 13.508 U.S. 520 (1993).Show More This Part will then demonstrate that a lack of neutrality and general applicability can and will undermine any compelling interest the state could put forth in application. Thus, a religious adjustment is necessary.

Part II will discuss the three approaches that courts have taken to adjust the reasonable person standard for sincerely held religious belief. It will first address the “objective” test, which purports to reject consideration of subjective thought and prohibits courts from including religious belief in reasonableness determinations. The requirement of some accommodation under Smith and Lukumi makes this approach unworkable. This Part will then address the “reasonable believer” test, in which courts treat religion as an immutable characteristic of the party, similar to the “eggshell skull” rule in torts. It will reject this test on both Free Exercise and Establishment Clause grounds. Finally, this Part will discuss the “case-by-case” approach in which religion is one of many equally weighted factors used to determine the reasonableness of an action. It will contend that this approach alleviates some of the Free Exercise and Establishment Clause problems of the “reasonable believer” standard and is the best option given the demands of the Supreme Court’s First Amendment jurisprudence.

In the admittedly small arena of “failure to mitigate damages” cases, this outcome may seem palatable and even appropriate. But the implications of finding a required adjustment are far-reaching. If something as generic as a reasonableness standard is susceptible to required religious accommodation, what other purportedly generally applicable laws or standards are similarly vulnerable? Take, for example, Snyder v. Phelps, the Westboro Baptist Church case discussed above.14 14.See supra text accompanying note 5.Show More Although the Supreme Court decided the issue in the Church’s favor on free speech grounds,15 15.Snyder v. Phelps, 562 U.S. 443, 461 (2011).Show More suppose, instead, that it had tackled the free exercise question.

Should the tort of IIED be subject to required religious accommodation because it has exemptions for speech protected under the First Amendment’s Free Speech Clause? An aggressive exemption strategy to religious accommodation under Smith and Lukumi may suggest that the answer is yes. That outcome seems unsettling. It also begs for clarity on what laws or standards, if any, are so fundamental as to avoid required religious accommodation. This Note uses the finding of a required religious accommodation to the reasonable person standard to suggest the fundamental inadequacy of the Court’s aggressive exemption jurisprudence under the Free Exercise Clause.

Foreword

Somehow we’ve weathered and witnessed

a nation that isn’t broken

but simply unfinished1.Read: Youth Poet Laureate Amanda Gorman’s Inaugural Poem, CNNPolitics (Jan. 20, 2021), https://www.cnn.com/2021/01/20/politics/amanda-gorman-inaugural-poem-transcript/index.html [https://perma.cc/AX6X-GU86].Show More

Amanda Gorman

If a foreword were to be limited to one word, and one word only, this foreword’s one word would be joy. It is a joy to introduce to you a diverse group of authors and their writings on the past, present, and future of a social justice movement that we now know must be founded on intersectional solidarity.

The papers in this collection are blunt. Their messages are confident and unapologetic. The authors trace our faltering progress in a century-long struggle for legal and social justice for people of color, for women, for LGBTQ+ folks, and for others whom white supremacy has silenced and erased. The authors do not hesitate to call out some of their would-be fellow travelers—including, I dare say, themselves—for failures to listen and lift up marginalized points of view. The authors address divergent topics and apply distinct methodologies, but, I suggest, their objectives converge as each seeks to articulate the conditions necessary for an intersectional understanding that produces durable alliances.

So, as you move ahead into these papers, prepare yourself for joy: The joy of listening to authors voicing complex concepts clearly. The joy of hearing about the ancestors whose works they have studied and deployed. The joy of feeling the energy that is produced as we begin to learn how to resist, even as we never deny, the suffering imposed by the conjoint forces of racism, sexism, homophobia, and classism. The joy of finding new alliances as we work to shed our own “public and private rituals” that have “help[ed] maintain the culture of domination.”2.bell hooks, Teaching To Transgress: Education as the Practice of Freedom 27 (1994).Show More The joy of knowing that it “is not a naive fantasy” for us to try to act “as a catalyst for social change across false boundaries.”3.Id. at 72.Show More

  1. * Lewis F. Powell, Jr., Professor of Law, University of Virginia School of Law.
  2. Read: Youth Poet Laureate Amanda Gorman’s Inaugural Poem, CNNPolitics (Jan. 20, 2021), https://www.cnn.com/2021/01/20/politics/amanda-gorman-inaugural-poem-transcript/index.html [https://perma.cc/AX6X-GU86].
  3. bell hooks, Teaching To Transgress: Education as the Practice of Freedom 27 (1994).
  4. Id. at 72.

Bostock’s Inclusive Queer Frame

Bostock v. Clayton County is the Supreme Court’s first major decision on gay rights written since Justice Kennedy’s retirement. It is a victory for the LGBT community—a momentous one. But this Essay argues that Bostock is even more momentous than its holding. The case’s central syllogism is hidden beneath a deceptively straightforward reading of Title VII. Bostock says, simply and clearly, that sex equality requires queer equality, and that trans rights are human rights.

Bostock’s logic is universal and inclusive. This Essay centers its analysis on trans identity to explain how and why that matters. It shows how Bostock arrives at its expansive frame for queer rights, and why its careful textual analysis leads it to an ostensibly progressive conclusion. This logic is unusual. Courts confronted with queer plaintiffs usually adopt more minoritarian frames. But in Bostock, inclusivity wins out. That is a good thing: an inclusive account of anti-queerness is straightforward and logical. It accurately describes the way sex-based discrimination operates. It accommodates difference well but remains robust enough to account for core instances of sex discrimination. It is promising, pragmatic, and adaptable. And finally, because it shows the deep interdependence of sex-based identities, the inclusive frame is profound.

[Q:] How has it been for you living as a trans person during this time?

[A:] Well, you’re referring to the Bostock . . . decision, which I think was huge for trans people, especially, because it established that [we] are protected in the workplace. And that’s extraordinary because it’s a protection that doesn’t depend upon privacy in the way that the Lawrence v. Texas decision . . . depended on privacy in order to defend gay sex.

It doesn’t depend on the kind of inherent dignity of the marriage form [that] Obergefell [did]—or the kind of redemptive qualities of love which may or may not chime with your experiences of love; they don’t always chime with mine—but the fact of work and the fact of the public. And it’s kind of amazing to think that that happened. I don’t think any of us really saw that coming. And it was a huge deal.*† Steven Rascón, Transitioning with Grace: Coming Out in Academia, Calif. Mag. (Fall 2020), https://alumni.berkeley.edu/california-magazine/fall-2020/transitioning-with-grace-lavery-coming-out-in-academia [https://perma.cc/8FKF-67PJ].Show More

I. Introduction

Bostock v. Clayton County turned a traumatic quarantine summer into a watershed year for LGBT rights. Bostock’s holding is crystal clear, but as 2020 comes to an end, the decision as a whole remains difficult to characterize neatly. When it was issued in late June, it immediately became a jurisprudential Rorschach test. Maybe Bostock was principled and textual.1.Ezra Ishmael Young, Bostock Is a Textualist Triumph, Jurist (June 25, 2020, 3:53 PM), https://www.jurist.org/commentary/2020/06/ezra-young-bostock-textualist-triumph/ [https://perma.cc/R4T7-TGTV].Show More Or maybe it was autocratic diktat2.See Bostock v. Clayton County, 140 S. Ct. 1731, 1755–56 (2020) (Alito, J., dissenting); Ross Douthat, Opinion, The Tempting of Neil Gorsuch, N.Y. Times (June 20, 2020), https://www.nytimes.com/2020/06/20/opinion/sunday/neil-gorsuch-supreme-court.html [https://perma.cc/CMH8-SZ6S].Show More—or a trojan horse3.Joe Patrice, Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion, Above L. (June 15, 2020, 1:22 PM), https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion.Show More—or even the death of conservative judging itself.4.E.g.,Josh Hawley, Was It All for This? The Failure of the Conservative Legal Movement, Pub. Discourse (June 16, 2020), https://www.thepublicdiscourse.com/2020/06/65043/ [https://perma.cc/55EL-FR7L].Show More But no matter what the decision might augur for the Roberts Court, it remains true that an employer who fires a person for being gay or transgender violates Title VII of the Civil Rights Act.5.Bostock, 140 S. Ct. at 1754.Show More

For transgender Americans, Bostock means even more than what it says: the decision humanizes us in a setting where we are only rarely seen.6.See, e.g., Chase Strangio, The Trans Future I Never Dreamed Of, Atlantic (June 24, 2020), https://www.theatlantic.com/ideas/archive/2020/06/trans-future-i-never-dreamed/613­405/ [https://perma.cc/2SGX-EMFH].Show More This was the second time the Supreme Court found in a trans plaintiff’s favor,7.The first time the Court did so, it described the plaintiff as a “preoperative transsexual.” Farmer v. Brennan, 511 U.S. 825, 829 (1994) (addressing Eighth Amendment violations in prison housing).Show More but it was the first time the Court addressed transgender status head-on. Bostock is historic, and that makes it especially poignant in an election year that has spurred politicians to target trans identity.8.See, e.g., Stephanie Saul, A Virginia House Candidate Campaigns by Attacking ‘a Man Dressed as a Woman’, N.Y. Times (Aug. 16, 2020), https://www.nytimes.com/­2020/08/16/us/politics/lgbt-bob-good-congress-va.html [https://perma.cc/B2L4-3Y9R]; Sydney Bauer, Facebook Axes Political Ad Saying Trans Athletes Will ‘Destroy Girls Sports’, NBC News (Sept. 16, 2020, 5:22 PM), https://www.nbcnews.com/feature/nbc-out/facebook-axes-political-ad-saying-trans-athletes-will-destroy-girls-n1240262 [https://perma.cc/6CF6-AQHB].Show More

The critical reaction has been full of sound and fury, but the Bostock opinion itself has little bombast and less melodrama. Even more strangely, it seems to have no frame for trans identity at all. Transness9.I.e., transgender status. Susan Stryker’s glossary is recommended for those new to all these terms. Susan Stryker, Transgender History: The Roots of Today’s Revolution ch. 1, 1–44 (2d ed. 2017).Show More is taken for granted and presented without a scrap of theory. Even the old standby of gender identity appears precisely once in the majority opinion.10 10.See Bostock, 140 S. Ct. at 1739. Justice Kavanaugh barely mentions transness, seeid. at 1823 n.1 (Kavanaugh, J., dissenting), but Justice Alito frequently refers to “gender identity,” and he addresses the majority’s avoidance of the term. Id. at 1756 n.6 (Alito, J., dissenting).Show More Trans people simply have “one sex identified at birth and another today.”11 11.Id. at 1746 (majority opinion).Show More Without difficulty, without philosophizing, and without a single cite to Judith Butler,12 12.Judith Butler (they/she) is one of the world’s foremost philosophers of gender. Their anti-essentialist theory of gender has been incalculably influential. See Alona Ferber, Judith Butler on the Culture Wars, JK Rowling and Living in “Anti-intellectual Times,” New Statesman (Sept. 22, 2020), https://www.newstatesman.com/international/2020/09/judith-butler-culture-wars-jk-rowling-and-living-anti-intellectual-times [https://perma.cc/4Y34-CA8S]. Their work, particularly 1990’s Gender Trouble, midwifedthe field now known as queer theory. See id.; Cathy J. Cohen, Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?, 3 GLQ 437, 438 (1997). It is impossible to write about gender in a theoretical sense without referring to their work.Show More the majority isolates a straightforwardly textual (and surprisingly radical) argument: gender, identity, presentation, expression, sexuality, and physicality are ultimately inextricable from sex.13 13.See Bostock, 140 S. Ct. at 1742 (“[H]omosexuality and transgender status are inextricably bound up with sex.”); see alsoKatherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 8 (1995) (arguing that “[t]he wrong of sex discrimination must be understood to include all gender role stereotypes,” and that such a theory necessarily would protect transgender people); Ido Katri, Transgender Intrasectionality: Rethinking Anti-discrimination Law and Litigation, 20 U. Pa. J.L. & Soc. Change 51, 79 (2017) (arguing that “gender performance” is the common, “epistemological basis of . . . sex, sexual orientation, gender identity, and gender expression”).Show More Nothing is lost by avoiding “gender dysphoria” and “gender identity”; in fact, much is gained in the omission of these terms. The trans plaintiff can just be treated like everybody else. The angst and drama and ontology and metaphysics were never truly needed.

But Judith Butler still participates in Bostock, though she remains a background character. Bostock is more in accord with her thinking than one might expect: in a feat of convergent evolution, textualism and poststructuralism14 14.The critical framework that undergirds much of Butler’s work; in Butler’s view, poststructuralism is generally opposed to essentialism, binarism, and presumptions of universal meaning. See Bernard E. Harcourt, An Answer to the Question: ‘What is Poststructuralism?’ 2 (U. Chi. Pub. L. & Legal Theory Working Paper, Paper No. 156, 2007), https://ssrn.com/abstract=970348 [https://perma.cc/A3SH-KYTD].Show More arrive at similar results. This Essay seeks to explain how. First, I will describe an inclusive, trans-centered model of sex discrimination. Second, I will show how and why Bostock’s reasoning fits this inclusive model well. Third, I will note that other courts and lawyers may have hesitated to adopt this line of reasoning because of a commitment to a minoritarian frame that is both incomplete and counterproductive. Ultimately, trans equality is implicit in sex equality. By acknowledging this, Bostock empowers an inclusive theory of queer15 15.I use “queer” in its broadest sense, capturing all identities associated with the LGBT+ community. See Stryker, supra note 9, at 30–31.Show More and trans rights.

II. What Is Sex Discrimination?

A. Perception Theory

Philosophers, judges, and legal thinkers have long presumed a rigid distinction between the terms “gender” and “sex.”16 16.See, e.g., Judith Butler, Sex and Gender in Simone de Beauvoir’sSecond Sex, 72 Yale French Stud. 35, 35 (1986); J.E.B. v. Alabama, 511 U.S. 127, 157 n.1 (1994) (Scalia, J., dissenting); Melina C. Bell, Gender Essentialism and American Law: Why and How To Sever the Connection, 23 Duke J. Gender L. & Pol’y 163, 172 (2016).Show More Gender, the story goes, is composed of social norms and activities. Since its content is an artifact of culture, it is not entirely inherent; therefore, in the long run, gender can be altered—or even reconstituted into something else.17 17.See Butler, supra note 16, at 35; cf. Judith Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, 40 Theatre J. 519, 526 (1988) [hereinafter Butler, Performative Acts] (suggesting that gender is communicated through a performance, just as a role in a theatrical production is).Show More Sex, by contrast, is understood to comprise only biological facts.18 18.See, e.g., Richard A. Epstein, Gender Is for Nouns, 41 DePaul L. Rev. 981, 982–83 (1992). But seeFranke, supranote 13, at 5. It is possible to productively discuss sex and gender without resorting to prescriptive definitions. See, e.g., Maayan Sudai, Toward a Functional Analysis of “Sex” in Federal Antidiscrimination Law, 42 Harv. J.L. & Gender 421, 460–61 (2019).Show More

In practice, though, the distinction is less clear. “Sex” and “gender” were confused before this framework emerged, and they remained so even after it became more dominant.19 19.See David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 87 (2004).Show More Some are understandably frustrated by this overlap.20 20.See, e.g., J.E.B., 511 U.S. at 156 (Scalia, J., dissenting); Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev. (forthcoming 2020) (manuscript at 10), https://ssrn.com/abstract=3546552 [https://perma.cc/H4NU-KQ6P].Show More But the elision of “gender” and “sex” is natural, especially in the context of discrimination. The terms are fuzzy because the concepts themselves are too.

In society as currently constituted, sex and gender are intimately linked. To deny this is to confuse gender theory with gender fact.21 21.See Elizabeth Barnes, Gender and Gender Terms, 54 Noûs 704, 715 (2020).Show More Law has no choice but to acknowledge what is present: most children labeled with an “M” at birth are expected to behave and present in one way, and most children labeled with an “F” are expected to behave and present in another. Even if “sex” is assumed to refer only to physical traits and “gender” only to social ones, the two are not separable: social norms connect one to the other.22 22.See Katri, supra note 13, at 69–70.Show More And because sex and gender are connected, a person’s perceived sex will dictate which gender norms they are held to. Gendered discrimination—whomever it is applied to and whatever shape it takes—must always be “because of sex.”

B. Transing Price Waterhouse

Price Waterhouse v. Hopkins ably illustrates that link. Here are the facts: Ann Hopkins was up for promotion at her firm, but she was denied. Male partners thought that she was “macho” and needed “a course in charm school.” Her behavior was unacceptable; at Price Waterhouse, women were expected to maintain their femininity.23 23.Price Waterhouse v. Hopkins, 490 U.S. 228, 231, 235–36 (1989) (plurality opinion).Show More Under a standard of “but-for” causation, Hopkins made out a prima facie case for recovery under Title VII.24 24.Id. at 262–63, 279 (O’Connor, J., concurring in the judgment); accord Bostock v. Clayton County, 140 S. Ct. 1731, 1739–40 (2020).Show More Had Hopkins not been female, her masculinity would have been acceptable to the partnership. Therefore, she was disadvantaged “‘because of’ sex”—and Price Waterhouse violated the Civil Rights Act.25 25.Price Waterhouse, 490 U.S. at 241, 258.Show More

At first glance, Price Waterhouse seems simple. There’s a problem, though; one link is missing in the syllogism. How did the firm know that Hopkins was female?26 26.Let us assume that sex comprises only physical traits present at birth. Bostock, 140 S. Ct. at 1739.Show More Presumably, it did not inspect her genitals or karyotype her blood. That is not how anyone would evaluate an employee’s sex. Instead, Hopkins probably held herself out as a woman. She marked “female” on her job application. When she showed up to work, she dressed in a way that did not undermine that presumption, and when her co-workers looked at her, they did not see any physical traits inconsistent with the femaleness they assumed was there. What mattered was her perceived sex: because Ann Hopkins was understood to be female, she was expected to behave femininely too. Gender norms applied to her “because of sex.”

Now imagine this: it is 2021, and the facts of Price Waterhouse repeat. This time, though, the plaintiff is a trans woman. Call her Alice. She passes; she’s stealth27 27.A trans person “passes” when they are seen as cis. They have “gone stealth” when nobody in their everyday life knows that they are trans. See Meredith Talusan, Along with Pain, the Joy of Stealth, them. (May 26, 2020), https://www.them.us/story/along-with-pain-the-joy-of-stealth-meredith-talusan-fairest [https://perma.cc/WXT2-DNTY].Show More and has been for years; and she is always perceived as a woman. Just like Ann Hopkins thirty-two years before, she becomes a senior project manager at a major accounting firm. But she curses, acts “too macho,” and is denied a shot at partnership. She sues, pleading violations of Title VII. Since Alice’s facts are just like Ann’s, she survives her firm’s motion to dismiss, and the case proceeds to discovery. One way or another, the firm discovers Alice’s medical records and is simply delighted to learn that she is trans. What a boon! This woman was male all along.28 28.I.e., she has a penis and testes, and the firm reads these traits as proof of maleness. See Bostock, 140 S. Ct. at 1739.Show More Bostock’s holding does not apply because Alice was not dismissed for being trans. In fact, the firm never even knew she was transgender while she was employed. The but-for test fails, since Alice would have been fired just the same even if she had been cisgender. And the firm argues that Price Waterhouse is not on point, either: Alice’s dismissal could not have been “because of sex,” it says, because she actually conformed with sex stereotypes by being a masculine male. Maybe her dismissal was irrational and capricious; maybe her employer intended to discriminate and failed. But Title VII could not have been violated.

This result seems intuitively incorrect. And it is—because what matters is how Alice is seen. Sex discrimination is a social phenomenon, and for social purposes, Alice is indisputably female. Her legal sex is “F”; she presents herself as a woman; and not a thing suggested to her firm that she might lack a woman’s normative anatomy. In truth, her firm understood her as a woman. It treated her like a woman, and it fired her like one too. Title VII “prohibits certain motives, regardless of the state of the actor’s knowledge,” and so the firm’s perception is what makes the difference.29 29.EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (Scalia, J.); see Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“What matters . . . is that in the mind of the perpetrator the discrimination is related to the sex of the victim.”); Benjamin Eidelson, Discrimination and Disrespect 19–20 (2015).Show More

C. Trans Visibility

As Alice shows us, a passing trans woman suffers precisely the same sex discrimination that a cis woman does.30 30.Conversely, a closeted trans man also looks like a cis woman to an observer—and is therefore discriminated against as if he were one.Show More But what happens if a trans woman doesn’t pass? In that case, her transness is visible to a casual observer. Her “maleness” is apparent: the masculinity of her body clashes with the femininity of her presentation. This “clash” is often unpleasant for the observer, who may experience it as visceral revulsion.31 31.In the movies, a straight man will often vomit when he discovers that a woman he is attracted to is trans. See Disclosure, at 64:00–68:00 (Netflix 2020) (collecting examples).Show More It is unpleasant for the trans woman too, who may experience it as gender dysphoria.32 32.See Stryker, supra note 9, at 17–20. Anyone can feel gender dysphoria. The discomfort a woman might feel when she’s called “Sir” on the phone is gender dysphoria; so is the distress most men might feel if forced to wear a dress. Cf. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1117–18 (9th Cir. 2006) (en banc) (Kozinski, J., dissenting) (“Imagine, for example, a rule that all judges wear [makeup] while on the bench. . . . I would find such a regime burdensome and demeaning . . . . I suspect many of my colleagues would feel the same way.”).Show More Because of this incongruence, an identifiably trans woman cannot be treated like a cis man, no matter how “male” she looks.33 33.See Natalie Wynn, Gender Critical | ContraPoints, YouTube, at 13:51 (Mar. 30, 2019), https://youtu.be/1pTPuoGjQsI?t=831 [https://perma.cc/BX68-H7XY] (“When a trans woman doesn’t pass, it’s not like society simply treats her like a man. No, you get treated as monster gender, pronouns ‘it’ and ‘spit.’”).Show More Instead, she is an outlier.34 34.See Barnes, supra note 21, at 717; Katri, supra note 13, at 73.Show More Her form contradicts itself. That contradiction provokes disgust, which metastasizes into discrimination: she should not exist.

So once again, perception is what matters. A person who sees a misalignment can use it to infer transness, and that inference can motivate discrimination. It can also work the other way around: an employer can learn of a transition, interpret it as a per se misalignment, and dismiss an employee because of an ideological conviction that somebody appearing to be a man is estopped into that state forever.35 35.This conviction also motivated some courts to rule against trans plaintiffs. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984) (doubting that “a woman [could] be . . . created from what remains of a man”); Sonia K. Katyal, TheNumerus Clausus of Sex, 84 U. Chi. L. Rev. 389, 431–34 (2017).Show More This is what happened to Aimee Stephens, Bostock’s transgender plaintiff.36 36.See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 569 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020).Show More In Butlerian terms, the employer reads a visibly trans person as performing their gender incorrectly.37 37.See Butler, Performative Acts, supra note 17, at 527–28; Katri, supra note 13, at 71 (citing Judith Butler, Critically Queer, 1 GLQ 17, 17–32 (1993)).Show More The “wrongness” of a non-passing trans woman is a rejection of a person perceived to be “doing gender wrong.”

Price Waterhouse made it far more difficult to argue that discriminating against those “doing gender wrong” is permitted under Title VII.38 38.See Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“[T]he perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like’ one.”). But see Bostock, 140 S. Ct. at 1777–78 (Alito, J., dissenting).Show More Because perceived sex determines how one interprets a gender performance, perceived sex is central to transness itself. Discrimination is not and could not be a mere question of semantics.

D. Sex and Its Penumbrae

With this understanding of transphobia in hand, one can extend it to other kinds of discrimination too. It is easy to begin with trans identity; it is clear how closely trans is linked to sex. That is why this Essay began there, and maybe that is also why the federal courts have been friendly to trans plaintiffs for some time.39 39.See Paisley Currah, Transgender Rights Without a Theory of Gender?, 52 Tulsa L. Rev. 441, 445 (2017); Ezra Ishmael Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, 11 Calif. L. Rev. Online 9, 15–16 & n.33 (2020) (collecting cases).Show More In general terms, a discriminator assesses someone’s sex, determines that their behavior or presentation is inappropriate for that sex, and metes out punishment. Discriminating against an incorrect gender performance is sex discrimination; trans people are seen as doing gender wrong; and therefore, anti-transness relies on sex discrimination too.

This discriminatory process is general, and it can be applied to many kinds of nonconformity. Imagine the archetypal woman. What characterizes her? She appears to have a female and feminine body. She presents and holds herself out as a woman. And, of course, she prefers the company of men. All of these qualities are normatively associated with one another and linked up through her sex.40 40.Butler calls this phenomenon “the heterosexual matrix.” See David Gauntlett, Media, Gender and Identity 148 (2d ed. 2008).Show More And because these qualities are sex-related, they can all result in sex discrimination. Price Waterhouse is a perfect example: Ann Hopkins’s masculine behaviors are seen as inappropriate precisely because she is seen (and holds herself out as) a woman. The femininity of her body clashes with the masculinity of her presentation—and so, she is punished.41 41.Price Waterhouse v. Hopkins, 490 U.S. 228, 235–36 (1989).Show More Though she’s cis, she still performs her gender incorrectly. She is discriminated against in the same way and for the same reasons a trans plaintiff might be.42 42.See Young, supra note 39, at 22.Show More

Sex is at the center, and its penumbrae tend to generate identities that are often blurry, complex, ambiguous, or multivalent.43 43.See J. Halberstam, Transgender Butch: Butch/FTM Border Wars and the Masculine Continuum, 4 GLQ 287, 293–95 (1998). Many people see these identities as inherent to them; many do not. Focusing on perception frees us from having to decide which view is right. Cf. Currah, supra note 39, at 444 (describing the way debates about transgender rights often descend into debates about the nature of gender).Show More But this does not mean that sex must be a stable background. None of this must imply that trans women are simply “men in dresses”; that butch lesbians are merely inchoate trans men; or that nonbinary people are “just” nonconforming members of their sex (as assigned or perceived). Homophobia, transphobia, and sexism are not the same. But these forms of discrimination are similar—and even more importantly, they are interrelated. They are connected by a “complicated network of similarities.”44 44.Ludwig Wittgenstein, Philosophical Investigations ¶ 66 (P.M.S. Hacker & Joachim Schulte eds., G.E.M. Anscombe, P.M.S. Hacker & Joachim Schulte trans., 4th ed. 2009); see Butler, Performative Acts, supra note 17, at 529.Show More They intersect with, converge on, and return to sex, and focusing on sex will capture all of them at once.

Courts have struggled mightily to disentangle discrimination because of sex, gender, sexuality, and transness. But because these forms of bias are so closely linked, it is impossible to distinguish them consistently. As a consequence, the doctrine of sex equality descended into incoherence.45 45.Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minn. L. Rev. Headnotes 1, 10–11 (2020).Show More Some courts supposed that claims of sex discrimination were actually because of “sexual preference” and dismissed them;46 46.E.g., Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326 (5th Cir. 1978).Show More others emphasized that Title VII protected gender-nonconforming conduct, but that status was outside its bounds.47 47.E.g., Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1258 (11th Cir. 2017) (W. Pryor, J., concurring).Show More Some courts elided queerness and sex;48 48.E.g., Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492, 493 (9th Cir. 2009) (per curiam). The panel in Kastl included then-Judge Gorsuch, sitting by designation. Id.; see Young, supra note 39, at 31 (characterizing the decision as “pure Gorsuch”).Show More and finally, some concluded that the distinction was untenable and quit the field entirely.49 49.E.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2d Cir. 2018) (en banc) (Cabranes, J., concurring in the judgment) (“Zarda’s sexual orientation is a function of his sex. . . . That should be the end of the analysis.”), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020).Show More As the Eleventh Circuit put it:

A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. “[T]he [sic] very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.50 50.Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (quoting Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Calif. L. Rev. 561, 563 (2007)). The panel, composed of Judges Barkett, W. Pryor, and Kravitch, was unanimous in its decision, suggesting that this was not a partisan finding. Id. at 1313; see Young, supra note 39, at 16 n.35.Show More

Price Waterhouse simply made it impossible to keep every queer plaintiff out. As more and more of them brought their claims, the line drawing became impossible, the categories became confused, and their entanglement was laid bare for all to see.51 51.See Jessica A. Clarke, How the First Forty Years of Circuit Precedent Got Title VII’s Sex Discrimination Provision Wrong, 98 Tex. L. Rev. Online 83, 113–17 (2019).Show More Over time, it became undeniably clear that the feminine man, the gay man, and the (visibly) trans man are punished for essentially the same transgression.52 52.See Katri, supra note 13, at 70.Show More As the courts saw, sex is a powerful thing—it has deep roots and manifold effects. And so, addressing sex discrimination often means attacking anti-queerness too.

III. Why Bostock Got It Right . . . 

Bostock’s theory of sex discrimination is nothing new. It is not new to activists,53 53.SeeCary Franklin, The Anti-stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 115–16 (2010).Show More academics,54 54.See, e.g.,Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208 (1994).Show More or judges.55 55.See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1750–51 (2020); Winstead v. Lafayette Cnty. Bd. of Cnty. Comm’rs, 197 F. Supp. 3d 1334, 1346–47 (N.D. Fla. 2016).Show More Courts, however, have distinguished an “analytic” or per se theory of queer protections from one that derives from the sex-stereotyping holding of Price Waterhouse.56 56.SeeWinstead, 197 F. Supp. 3d at 1343–46.Show More Bostock makes clear, once and for all, that these theories are one and the same. Sex stereotyping is per se “because of sex”; anti-queer discrimination is per se sex stereotyping. No matter how you get there, anti-queer discrimination must be “because of sex.” Remember: a person’s queer status is defined by queer conduct, and queer conduct is marked only because it transgresses gender norms. These norms, in turn, are deeply linked to sex.

Bostock’s logic is textual, but it sees this fact-based argument—and that means that it acknowledges how sex discrimination truly works. The Court was not ignorant of the mechanics of sex discrimination. One amicus brief clarified just how difficult distinguishing sex-based and sexuality-based discrimination is in the world at large.57 57.SeeBrief of Serv. Emps. Int’l Union, Int’l Brotherhood of Teamsters & Jobs with Just. as Amici Curiae in Support of the Employees at 8, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107).Show More Another noted that “[t]he oppression of women and that of gay people are interdependent and spring from the same roots, though they take different forms.”58 58.Brief of Historians as Amici Curiae in Support of Employees at 31–32, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107) (internal quotations omitted).Show More

This emphasis on the diversity, fluidity, and breadth of sex discrimination produces Bostock. And that universalizing push guides the opinion to a general theory of sex discrimination that supersedes the reasoning of Price Waterhouse. Gender nonconformity is not a separate cause of action under Title VII—it never was.59 59.See alsoEvans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1260 (11th Cir. 2017) (W. Pryor, J., concurring) (“The doctrine of gender nonconformity is not an independent vehicle for relief.”).Show More But under Bostock’s logic, a person fired for gender nonconformity is necessarily fired “because of sex.” Had the employee been seen as a member of a different sex, their behavior would have been normative, and no dismissal would have occurred.

The Bostock test is inclusive, and that makes it flexible and robust. Picture this: a lesbian lawyer holds a “same-sex commitment ceremony” and is fired. The employer claims that she was fired not for being gay but for “flaunting her homosexuality.”60 60.Kenji Yoshino, Covering, 111 Yale L.J. 769, 776 (2002) (summarizing Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc)).Show More But Bostock still provides a cause of action. After all, had the lawyer been a man, “flaunting [his] sexuality” by honoring commitment to a woman would not have been offensive.61 61.See Bostock, 140 S. Ct. at 1741 (explaining that an employer who fires a man “for traits or actions it tolerates in his female colleague” violates Title VII).Show More The lesbian lawyer’s womanhood is a but-for cause of her dismissal. Thanks to Bostock, nobody needs to litigate whether the true cause of the dismissal was sex, gender expression, sexuality, or something else. Primary causation is irrelevant. Everything sex touches is included.

IV. . . . And Others Got It Wrong

If this approach is so natural, why did it take so long to accept it? Here is one answer: past courts were motivated by animosity to write queer people out of the law. Now that queer identity is less stigmatized, even-handedness is possible.62 62.See Clarke, supra note 51, at 121–22. Past courts also mistakenly focused on group rather than individual rights. See Anthony M. Kreis, Dead Hand Vogue, 54 U. Rich. L. Rev. 705, 707–08 (2020).Show More That is surely part of the story, but something else may also be at work.

Lawyers litigating civil rights are motivated to frame queer and trans people as a “discrete and insular minority.”63 63.United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).Show More That is what the Supreme Court has said is needed to find protected status, after all.64 64.See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (describing “traditional indicia of suspectness”); id. at 104–05 (Marshall, J., dissenting) (citing Carolene Products to explain why certain classifications “call for close[r] judicial scrutiny”).Show More This minoritarian move is natural in American anti-discrimination law, whose principal target is racism. But race discrimination is not a neat analogue for anti-queerness. Neither race, ethnicity, nor national origin are chosen; therefore, their immutability seems to make them wrongful bases for discrimination.65 65.See Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 14–16 (2015).Show More By analogy, other wrongful bases are presumed to be immutable as well. Extending anti-discrimination protections to new groups prompts lawyers to characterize those groups in terms of immutable or near-immutable traits.66 66.See id. at 23–26.Show More That search for unchangeable qualities focuses the inquiry on status and obscures the contribution of behavior.

But immutability is not necessarily what makes a trait protected,67 67.Cf. Deborah Hellman, When Is Discrimination Wrong? 133 (2008) (suggesting that a characteristic shared between classic forms of wrongful discrimination may be mere “correlation” rather than the cause of their wrongfulness).Show More and relying on it is inappropriate. Transness is an identity, but when it is assumed to be stable, inherent, and immovable, the case for trans rights starts to sound like an argument for accommodation, rendered necessary by the harmful consequences of untreated gender dysphoria.68 68.See Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1292–93 (11th Cir. 2020); Jennifer L. Levi, Clothes Don’t Make the Man (or Woman), but Gender Identity Might, 15 Colum. J. Gender & L. 90, 104–10 (2006) (defending this approach).Show More The argument starts to sound like an excuse: transness must be tolerated not because it is worthy of respect but because dysphoria cannot be treated otherwise. The poor things just can’t help it.

A minoritizing emphasis on immutability is inaccurate as well. A status-first, “no-choice” analysis only really holds for vertical, heritable traits. These vertical identities are passed down generationally and therefore feel (or truly are) immutable. One is born into them. Queerness is entirely different: it is a “horizontal” trait that is usually not shared across generations.69 69.See Andrew Solomon, Far from the Tree: Parents, Children, and the Search for Identity 2–3 (2012).Show More Because it is a horizontal identity, queerness is adopted (identified with) more often than it is ascribed. Queerness requires coming out: first to yourself, then to others. It requires a chosen act.

And so, the behavior has pride of place because the identity is defined by its associated acts, whether they are actually performed or merely longed for. The act is inextricable: nobody can know that they are gay until they feel a gay desire. One must at least desire transition to be trans, and one must choose to manifest that status in some way: there is always a choice, even if the choice is effectively between transition and death.70 70.For many, dysphoria is so intense that transition truly feels like a matter of life and death. See Stephen T. Russell, Amanda M. Pollitt, Gu Li & Arnold H. Grossman, Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation and Behavior Among Transgender Youth, 63 J. Adolescent Health 503, 505 (2018) (finding that proxies for social transition predict decreases in suicidal behavior). For others, dysphoria merely impairs one’s quality of life. See Emily VanDerWerff, The Catastrophist, or: On Coming Out as Trans at 37, Vox (June 3, 2019, 10:00 AM), https://www.vox.com/culture/2019/6/3/18647615/­coming-out-transgender-handmaids-tale-emily-todd-vanderwerff (“I could have lived as a man for the rest of my life . . . . I did not find it literally impossible, as so many trans women do. And yet to live as a man was to take such bad care of myself that ‘the rest of my life’ drastically shortened.”). I could have kept living too—but it would have been a very stunted life.Show More Discrimination requires visibility; visibility requires being out; and being out means choosing to be out. Thus, to imagine a queer identity that can be subject to discrimination as something separable from chosen acts is to deeply, fundamentally misunderstand that identity.

Queerness is therefore a poor fit for an anti-discrimination law focused on immutability. But its act-contingent nature makes it perfect for the conduct-focused Title VII. The Title VII analysis need not presume some stable category; it does not need to classify status to confer protection. Bostock acknowledges this, and it arrives at inclusivity by centering behavior: “Employers fire, single out, discriminate (against), penalize. Infants are ‘identified as’ male or female. . . . Individuals are penalized for particular ‘traits or actions.’”71 71.Paisley Currah, How a Conservative Legal Perspective Just Saved LGBT Rights, Bos. Rev. (June 19, 2020), https://www.bostonreview.net/gender-sexuality/paisley-currah-how-conservative-legal-perspective-just-saved-lgbt-rights [https://perma.cc/6Q2L-7UKH] (inter­nal quotations omitted).Show More

Because Bostock correctly centers conduct and not status, its choice of language should not be surprising. Why does the decision avoid “gender identity”? Maybe gender has little place in a law dedicated to sex; maybe gender necessarily brings sex along with it. Or maybe gender identity is the wrong way to think about transness. After all, a trans woman and a cis woman have precisely the same gender identity: woman. When gender identity becomes the key to transness, what results is language that only permits trans people to identify, whereas cis people are simply permitted to be.72 72.Florence Ashley, The Constitutive In/visibility of the Trans Legal Subject: A Case Study, 28 UCLA Women’s L.J. (forthcoming 2021) (manuscript at 29–30) (on file with author).Show More Gender identity is certainly part of the puzzle, since anti-trans discrimination is “because of” gender identity just as it is “because of” sex. But gender identity is not what separates in-group from out-group. It comes as no surprise, then, that Bostock cautiously avoids it.

“Gender identity” has an even bigger problem. Applying the concept to transgender status not only decouples transness from sex but also renders it alien, foreign, and other.73 73.See id. (manuscript at 29); Paisley Currah & Shannon Minter, Unprincipled Exclusions: The Struggle To Achieve Judicial and Legislative Equality for Transgender People, 7 Wm. & Mary J. Women & L. 37, 50–51 (2000).Show More The word “identity” sounds flimsy: it could easily be arbitrary or chosen. By comparison, “sex” feels stable, constant, and determined. When transness is asserted to hinge on gender and not sex, it seems perfectly logical to suppose that trans people are similarly situated to cis members of the sex they were assigned at birth.74 74.See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610 n.10 (4th Cir. 2020), reh’g en banc denied, 2020 WL 5667294 (Sept. 22, 2020).Show More “Gender identity” makes it too easy to assume that a trans man is a “biological female” who merely identifies as male—and that therefore he is more like a cis woman than a cis man.75 75.See id. at 628 (Niemeyer, J., dissenting); Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1311 (11th Cir. 2020) (W. Pryor, C.J., dissenting).Show More The subjective language of identity combined with the pathologizing language of dysphoria can lead a judge to conclude that transness is no more than a delusion.76 76.This rhetorical tendency surfaces in the Grimm and Adams majorities, see infranote 79, and led, I believe, to the skeptical epistemic attitudes of the dissents. See supra note 75.Show More “Identifying as a man” becomes ridiculous, a flight of fancy no more reasonable than imagining oneself a helicopter.77 77.See Harper Shalloe, “I Sexually Identify as an Attack Helicopter”, 6 TSQ 667, 667–68 (2019).Show More

V. Consequences and Conclusions

Bostock has begun working its way into lower court opinions. As it arrives, its clarifying power seems immense. This is easiest to see in August’s “bathrooms cases,” where divided panels of the Fourth and Eleventh Circuits found that schools that ban trans men from using the men’s bathroom violate both the Equal Protection Clause and Title IX.78 78.Grimm, 972 F.3d at 593; Adams, 968 F.3d at 1292.Show More The cases’ Equal Protection analyses wander here and there when describing transness: they touch on gender identity, dysphoria, stereotyping, and subordination on their way to describing their plaintiffs and the differential treatment that they suffered.79 79.See, e.g., Grimm, 972 F.3d at 608–10; Adams, 968 F.3d at 1291, 1302–04.Show More By contrast, the Title IX discussions are clear as day. Bostock makes equivocation and justification unnecessary. The decision obviates the endless rhetoric of stereotype and permits a simple finding that the plaintiffs were harmed because of their sex.80 80.See Grimm, 972 F.3d at 616; Adams, 968 F.3d at 1305. While Grimm cited Bostock for its Title IX analysis, the court also found that Price Waterhouse permitted a distinct “sex-stereotyping” claim. Grimm, 972 F.3d at 617 n.15. But seesupra Part III.Show More

So maybe Bostock’s odd directness is its genius; maybe queerness always was this simple. Maybe we never needed identity, dysphoria, psychology, pathology, endocrinology. All we needed were judges willing to see queer and trans people as they are.81 81.See Currah, supra note 39, at 446–47.Show More Bostock takes the implications of “sex” fully and seriously, and that makes sex’s implications easy to understand. Seneca Falls may not have been Stonewall,82 82.Bostock v. Clayton County, 140 S. Ct. 1731, 1828–29 (Kavanaugh, J., dissenting).Show More but it had the seeds of Stonewall in it. In the end, we are all included in Bostock. And trans rights always were human rights.

  1. * J.D. Candidate, University of Virginia School of Law (expected 2022). Endless thanks are owed, inter alios, to Florence Ashley, Holly Chaisson, D Dangaran, Chloe S. Fife, Brian L. Frye, J. Remy Green, Deborah Hellman, Leslie Kendrick, Hanaa Khan, Kevin Krotz, Kevin G. Schascheck, Jack Vallar, and Sarah Stewart Ware.
  2. † Steven Rascón, Transitioning with Grace: Coming Out in Academia, Calif. Mag. (Fall 2020), https://alumni.berkeley.edu/california-magazine/fall-2020/transitioning-with-grace-lavery-coming-out-in-academia [https://perma.cc/8FKF-67PJ].
  3. Ezra Ishmael Young, Bostock Is a Textualist Triumph, Jurist (June 25, 2020, 3:53 PM), https://www.jurist.org/commentary/2020/06/ezra-young-bostock-textualist-triumph/ [https://perma.cc/R4T7-TGTV].
  4. See Bostock v. Clayton County, 140 S. Ct. 1731, 1755–56 (2020) (Alito, J., dissenting); Ross Douthat, Opinion, The Tempting of Neil Gorsuch, N.Y. Times (June 20, 2020), https://www.nytimes.com/2020/06/20/opinion/sunday/neil-gorsuch-supreme-court.html [https://perma.cc/CMH8-SZ6S].
  5. Joe Patrice, Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion, Above L. (June 15, 2020, 1:22 PM), https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion.
  6. E.g.,Josh Hawley, Was It All for This? The Failure of the Conservative Legal Movement, Pub. Discourse (June 16, 2020), https://www.thepublicdiscourse.com/2020/06/65043/ [https://perma.cc/55EL-FR7L].
  7. Bostock, 140 S. Ct. at 1754.
  8. See, e.g., Chase Strangio, The Trans Future I Never Dreamed Of, Atlantic (June 24, 2020), https://www.theatlantic.com/ideas/archive/2020/06/trans-future-i-never-dreamed/613­405/ [https://perma.cc/2SGX-EMFH].
  9. The first time the Court did so, it described the plaintiff as a “preoperative transsexual.” Farmer v. Brennan, 511 U.S. 825, 829 (1994) (addressing Eighth Amendment violations in prison housing).
  10. See, e.g., Stephanie Saul, A Virginia House Candidate Campaigns by Attacking ‘a Man Dressed as a Woman’, N.Y. Times (Aug. 16, 2020), https://www.nytimes.com/­2020/08/16/us/politics/lgbt-bob-good-congress-va.html [https://perma.cc/B2L4-3Y9R]; Sydney Bauer, Facebook Axes Political Ad Saying Trans Athletes Will ‘Destroy Girls Sports’, NBC News (Sept. 16, 2020, 5:22 PM), https://www.nbcnews.com/feature/nbc-out/facebook-axes-political-ad-saying-trans-athletes-will-destroy-girls-n1240262 [https://perma.cc/6CF6-AQHB].
  11. I.e., transgender status. Susan Stryker’s glossary is recommended for those new to all these terms. Susan Stryker, Transgender History: The Roots of Today’s Revolution ch. 1, 1–44 (2d ed. 2017).
  12. See Bostock, 140 S. Ct. at 1739. Justice Kavanaugh barely mentions transness, see id. at 1823 n.1 (Kavanaugh, J., dissenting), but Justice Alito frequently refers to “gender identity,” and he addresses the majority’s avoidance of the term. Id. at 1756 n.6 (Alito, J., dissenting).
  13. Id. at 1746 (majority opinion).
  14. Judith Butler (they/she) is one of the world’s foremost philosophers of gender. Their anti-essentialist theory of gender has been incalculably influential. See Alona Ferber, Judith Butler on the Culture Wars, JK Rowling and Living in “Anti-intellectual Times,” New Statesman (Sept. 22, 2020), https://www.newstatesman.com/international/2020/09/judith-butler-culture-wars-jk-rowling-and-living-anti-intellectual-times [https://perma.cc/4Y34-CA8S]. Their work, particularly 1990’s Gender Trouble, midwifed the field now known as queer theory. See id.; Cathy J. Cohen, Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?, 3 GLQ 437, 438 (1997). It is impossible to write about gender in a theoretical sense without referring to their work.
  15. See Bostock, 140 S. Ct. at 1742 (“[H]omosexuality and transgender status are inextricably bound up with sex.”); see also Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 8 (1995) (arguing that “[t]he wrong of sex discrimination must be understood to include all gender role stereotypes,” and that such a theory necessarily would protect transgender people); Ido Katri, Transgender Intrasectionality: Rethinking Anti-discrimination Law and Litigation, 20 U. Pa. J.L. & Soc. Change 51, 79 (2017) (arguing that “gender performance” is the common, “epistemological basis of . . . sex, sexual orientation, gender identity, and gender expression”).
  16. The critical framework that undergirds much of Butler’s work; in Butler’s view, poststructuralism is generally opposed to essentialism, binarism, and presumptions of universal meaning. See Bernard E. Harcourt, An Answer to the Question: ‘What is Poststructuralism?’ 2 (U. Chi. Pub. L. & Legal Theory Working Paper, Paper No. 156, 2007), https://ssrn.com/abstract=970348 [https://perma.cc/A3SH-KYTD].
  17. I use “queer” in its broadest sense, capturing all identities associated with the LGBT+ community. See Stryker, supra note 9, at 30–31.
  18. See, e.g., Judith Butler, Sex and Gender in Simone de Beauvoir’s Second Sex, 72 Yale French Stud. 35, 35 (1986); J.E.B. v. Alabama, 511 U.S. 127, 157 n.1 (1994) (Scalia, J., dissenting); Melina C. Bell, Gender Essentialism and American Law: Why and How To Sever the Connection, 23 Duke J. Gender L. & Pol’y 163, 172 (2016).
  19. See Butler, supra note 16, at 35; cf. Judith Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, 40 Theatre J. 519, 526 (1988) [hereinafter Butler, Performative Acts] (suggesting that gender is communicated through a performance, just as a role in a theatrical production is).
  20. See, e.g., Richard A. Epstein, Gender Is for Nouns, 41 DePaul L. Rev. 981, 982–83 (1992). But see Franke, supra note 13, at 5. It is possible to productively discuss sex and gender without resorting to prescriptive definitions. See, e.g., Maayan Sudai, Toward a Functional Analysis of “Sex” in Federal Antidiscrimination Law, 42 Harv. J.L. & Gender 421, 460–61 (2019).
  21. See David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 87 (2004).
  22. See, e.g., J.E.B., 511 U.S. at 156 (Scalia, J., dissenting); Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev. (forthcoming 2020) (manuscript at 10), https://ssrn.com/abstract=3546552 [https://perma.cc/H4NU-KQ6P].
  23. See Elizabeth Barnes, Gender and Gender Terms, 54 Noûs 704, 715 (2020).
  24. See Katri, supra note 13, at 69–70.
  25. Price Waterhouse v. Hopkins, 490 U.S. 228, 231, 235–36 (1989) (plurality opinion).
  26. Id. at 262–63, 279 (O’Connor, J., concurring in the judgment); accord Bostock v. Clayton County, 140 S. Ct. 1731, 1739–40 (2020).
  27. Price Waterhouse, 490 U.S. at 241, 258.
  28. Let us assume that sex comprises only physical traits present at birth. Bostock, 140 S. Ct. at 1739.
  29. A trans person “passes” when they are seen as cis. They have “gone stealth” when nobody in their everyday life knows that they are trans. See Meredith Talusan, Along with Pain, the Joy of Stealth, them. (May 26, 2020), https://www.them.us/story/along-with-pain-the-joy-of-stealth-meredith-talusan-fairest [https://perma.cc/WXT2-DNTY].
  30. I.e., she has a penis and testes, and the firm reads these traits as proof of maleness. See Bostock, 140 S. Ct. at 1739.
  31. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (Scalia, J.); see Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“What matters . . . is that in the mind of the perpetrator the discrimination is related to the sex of the victim.”); Benjamin Eidelson, Discrimination and Disrespect 19–20 (2015).
  32. Conversely, a closeted trans man also looks like a cis woman to an observer—and is therefore discriminated against as if he were one.
  33. In the movies, a straight man will often vomit when he discovers that a woman he is attracted to is trans. See Disclosure, at 64:00–68:00 (Netflix 2020) (collecting examples).
  34. See Stryker, supra note 9, at 17–20. Anyone can feel gender dysphoria. The discomfort a woman might feel when she’s called “Sir” on the phone is gender dysphoria; so is the distress most men might feel if forced to wear a dress. Cf. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1117–18 (9th Cir. 2006) (en banc) (Kozinski, J., dissenting) (“Imagine, for example, a rule that all judges wear [makeup] while on the bench. . . . I would find such a regime burdensome and demeaning . . . . I suspect many of my colleagues would feel the same way.”).
  35. See Natalie Wynn, Gender Critical | ContraPoints, YouTube, at 13:51 (Mar. 30, 2019), https://youtu.be/1pTPuoGjQsI?t=831 [https://perma.cc/BX68-H7XY] (“When a trans woman doesn’t pass, it’s not like society simply treats her like a man. No, you get treated as monster gender, pronouns ‘it’ and ‘spit.’”).
  36. See Barnes, supra note 21, at 717; Katri, supra note 13, at 73.
  37. This conviction also motivated some courts to rule against trans plaintiffs. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984) (doubting that “a woman [could] be . . . created from what remains of a man”); Sonia K. Katyal, The Numerus Clausus of Sex, 84 U. Chi. L. Rev. 389, 431–34 (2017).
  38. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 569 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
  39. See Butler, Performative Acts, supra note 17, at 527–28; Katri, supra note 13, at 71 (citing Judith Butler, Critically Queer, 1 GLQ 17, 17–32 (1993)).
  40. See Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“[T]he perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like’ one.”). But see Bostock, 140 S. Ct. at 1777–78 (Alito, J., dissenting).
  41. See Paisley Currah, Transgender Rights Without a Theory of Gender?, 52 Tulsa L. Rev. 441, 445 (2017); Ezra Ishmael Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, 11 Calif. L. Rev. Online 9, 15–16 & n.33 (2020) (collecting cases).
  42. Butler calls this phenomenon “the heterosexual matrix.” See David Gauntlett, Media, Gender and Identity 148 (2d ed. 2008).
  43. Price Waterhouse v. Hopkins, 490 U.S. 228, 235–36 (1989).
  44. See Young, supra note 39, at 22.
  45. See J. Halberstam, Transgender Butch: Butch/FTM Border Wars and the Masculine Continuum, 4 GLQ 287, 293–95 (1998). Many people see these identities as inherent to them; many do not. Focusing on perception frees us from having to decide which view is right. Cf. Currah, supra note 39, at 444 (describing the way debates about transgender rights often descend into debates about the nature of gender).
  46. Ludwig Wittgenstein, Philosophical Investigations ¶ 66 (P.M.S. Hacker & Joachim Schulte eds., G.E.M. Anscombe, P.M.S. Hacker & Joachim Schulte trans., 4th ed. 2009); see Butler, Performative Acts, supra note 17, at 529.
  47. Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minn. L. Rev. Headnotes 1, 10–11 (2020).
  48. E.g., Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326 (5th Cir. 1978).
  49. E.g., Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1258 (11th Cir. 2017) (W. Pryor, J., concurring).
  50. E.g., Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492, 493 (9th Cir. 2009) (per curiam). The panel in Kastl included then-Judge Gorsuch, sitting by designation. Id.; see Young, supra note 39, at 31 (characterizing the decision as “pure Gorsuch”).
  51. E.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2d Cir. 2018) (en banc) (Cabranes, J., concurring in the judgment) (“Zarda’s sexual orientation is a function of his sex. . . . That should be the end of the analysis.”), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020).
  52. Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (quoting Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Calif. L. Rev. 561, 563 (2007)). The panel, composed of Judges Barkett, W. Pryor, and Kravitch, was unanimous in its decision, suggesting that this was not a partisan finding. Id. at 1313; see Young, supra note 39, at 16 n.35.
  53. See Jessica A. Clarke, How the First Forty Years of Circuit Precedent Got Title VII’s Sex Discrimination Provision Wrong, 98 Tex. L. Rev. Online 83, 113–17 (2019).
  54. See Katri, supra note 13, at 70.
  55. See Cary Franklin, The Anti-stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 115–16 (2010).
  56. See, e.g., Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208 (1994).
  57. See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1750–51 (2020); Winstead v. Lafayette Cnty. Bd. of Cnty. Comm’rs, 197 F. Supp. 3d 1334, 1346–47 (N.D. Fla. 2016).
  58. See Winstead, 197 F. Supp. 3d at 1343–46.
  59. See Brief of Serv. Emps. Int’l Union, Int’l Brotherhood of Teamsters & Jobs with Just. as Amici Curiae in Support of the Employees at 8, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107).
  60. Brief of Historians as Amici Curiae in Support of Employees at 31–32, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107) (internal quotations omitted).
  61. See also Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1260 (11th Cir. 2017) (W. Pryor, J., concurring) (“The doctrine of gender nonconformity is not an independent vehicle for relief.”).
  62. Kenji Yoshino, Covering, 111 Yale L.J. 769, 776 (2002) (summarizing Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc)).
  63. See Bostock, 140 S. Ct. at 1741 (explaining that an employer who fires a man “for traits or actions it tolerates in his female colleague” violates Title VII).
  64. See Clarke, supra note 51, at 121–22. Past courts also mistakenly focused on group rather than individual rights. See Anthony M. Kreis, Dead Hand Vogue, 54 U. Rich. L. Rev. 705, 707–08 (2020).
  65. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).
  66. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (describing “traditional indicia of suspectness”); id. at 104–05 (Marshall, J., dissenting) (citing Carolene Products to explain why certain classifications “call for close[r] judicial scrutiny”).
  67. See Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 14–16 (2015).
  68. See id. at 23–26.
  69. Cf. Deborah Hellman, When Is Discrimination Wrong? 133 (2008) (suggesting that a characteristic shared between classic forms of wrongful discrimination may be mere “correlation” rather than the cause of their wrongfulness).
  70. See Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1292–93 (11th Cir. 2020); Jennifer L. Levi, Clothes Don’t Make the Man (or Woman), but Gender Identity Might, 15 Colum. J. Gender & L. 90, 104–10 (2006) (defending this approach).
  71. See Andrew Solomon, Far from the Tree: Parents, Children, and the Search for Identity 2–3 (2012).
  72. For many, dysphoria is so intense that transition truly feels like a matter of life and death. See Stephen T. Russell, Amanda M. Pollitt, Gu Li & Arnold H. Grossman, Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation and Behavior Among Transgender Youth, 63 J. Adolescent Health 503, 505 (2018) (finding that proxies for social transition predict decreases in suicidal behavior). For others, dysphoria merely impairs one’s quality of life. See Emily VanDerWerff, The Catastrophist, or: On Coming Out as Trans at 37, Vox (June 3, 2019, 10:00 AM), https://www.vox.com/culture/2019/6/3/18647615/­coming-out-transgender-handmaids-tale-emily-todd-vanderwerff (“I could have lived as a man for the rest of my life . . . . I did not find it literally impossible, as so many trans women do. And yet to live as a man was to take such bad care of myself that ‘the rest of my life’ drastically shortened.”). I could have kept living too—but it would have been a very stunted life.
  73. Paisley Currah, How a Conservative Legal Perspective Just Saved LGBT Rights, Bos. Rev. (June 19, 2020), https://www.bostonreview.net/gender-sexuality/paisley-currah-how-conservative-legal-perspective-just-saved-lgbt-rights [https://perma.cc/6Q2L-7UKH] (inter­nal quotations omitted).
  74. Florence Ashley, The Constitutive In/visibility of the Trans Legal Subject: A Case Study, 28 UCLA Women’s L.J. (forthcoming 2021) (manuscript at 29–30) (on file with author).
  75. See id. (manuscript at 29); Paisley Currah & Shannon Minter, Unprincipled Exclusions: The Struggle To Achieve Judicial and Legislative Equality for Transgender People, 7 Wm. & Mary J. Women & L. 37, 50–51 (2000).
  76. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610 n.10 (4th Cir. 2020), reh’g en banc denied, 2020 WL 5667294 (Sept. 22, 2020).
  77. See id. at 628 (Niemeyer, J., dissenting); Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1311 (11th Cir. 2020) (W. Pryor, C.J., dissenting).
  78. This rhetorical tendency surfaces in the Grimm and Adams majorities, see infra note 79, and led, I believe, to the skeptical epistemic attitudes of the dissents. See supra note 75.
  79. See Harper Shalloe, “I Sexually Identify as an Attack Helicopter”, 6 TSQ 667, 667–68 (2019).
  80. Grimm, 972 F.3d at 593; Adams, 968 F.3d at 1292.
  81. See, e.g., Grimm, 972 F.3d at 608–10; Adams, 968 F.3d at 1291, 1302–04.
  82. See Grimm, 972 F.3d at 616; Adams, 968 F.3d at 1305. While Grimm cited Bostock for its Title IX analysis, the court also found that Price Waterhouse permitted a distinct “sex-stereotyping” claim. Grimm, 972 F.3d at 617 n.15. But see supra Part III.
  83. See Currah, supra note 39, at 446–47.
  84. Bostock v. Clayton County, 140 S. Ct. 1731, 1828–29 (Kavanaugh, J., dissenting).