The Supreme Court’s landmark decision in Bostock v. Clayton County, Georgia marks a turning point and milestone victory for the LGBTQ+ community. The decision will impact the fight to end discrimination based on gender identity and sexual orientation beyond the workplace. Title VII of the Civil Rights Act of 1964 makes it “unlawful . . . for an employer . . . to discriminate against any individual . . . because of such individual’s . . . sex.” Historically, the definition of “sex” under Title VII did not include protections based on sexual orientation or transgenderism. However, the Supreme Court’s decision in Bostock extended the reach of Title VII to prohibit discrimination against gay and transgender individuals in the employment context.
Bostock was a consolidation of three cases, involving three separate plaintiffs, Gerald Bostock, Donald Zara, and Aimee Stephens, all of whom alleged discrimination based on sex after being fired by their employers. Gerald Bostock was fired after he began participating in a gay recreational softball league; Donald Zara was fired after he mentioned to his employers that he was gay; and Aimee Stephens was fired after she presented as a male when she was hired, but later informed her employer that she would be undergoing a male-female transition.
Justice Gorsuch, writing on behalf of a six-Justice majority, determined that discrimination based on sexual orientation or gender identity is inherently “sex” discrimination under Title VII. While the Court’s ruling in Bostock is limited to LGBTQ+ employees and employment discrimination, the decision lays the legal foundation necessary to extend protection to gay and transgender individuals in education under Title IX of the Civil Rights Act, which often mirrors Title VII jurisprudence.
In 1972, Congress passed Title IX, which prohibits discrimination “on the basis of sex” in any educational institution that receives federal financial assistance. Similar to Title VII, Title IX’s prohibition of discrimination based on sex did not protect gay or transgender individuals. However, historically, courts have looked to Title VII jurisprudence in deciding matters of first impression in the Title IX context. For example, in Cannon v. University of Chicago, the Supreme Court noted that Title IX was patterned after Title VII, and that the drafters of Title IX explicitly assumed that it would be interpreted and enforced in the same manner as Title VII. Similarly, all Circuits have recognized that Title VII prohibits the identical conduct that Title IX prohibits, and have noted that Title VII jurisprudence is the most appropriate analogue when determining Title IX’s substantive standards.
Given the impact that Title VII precedent has on Title IX jurisprudence, the Bostock decision will impact lower courts’ interpretations of Title IX as the lower courts use Bostock to analyze cases involving gender identity or sexual orientation in public education brought under Title IX. Bostock is especially important given the increase in litigation surrounding gender identity and sexual orientation discrimination. For example, it may provide additional guidance to courts considering cases involving a transgender individual’s ability to use bathrooms and locker rooms that correspond with their gender identity. The Bostock decision, although narrow, will likely alter the landscape for Title IX litigation, and expand protections for individuals in the LGBTQ+ community beyond the additional safeguards from the workplace discrimination which was addressed in the case.
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