Marc Spindelman (Ohio State) has posted to SSRN his article Bostock‘s Paradox: Textualism, Legal Justice, and the Constitution, 69 Buffalo Law Review 553 (2021). Here is the abstract:
The Supreme Court’s opinion in Bostock v. Clayton County, Georgia—recognizing that anti-gay and anti-trans discrimination are forms of sex discrimination under Title VII of the 1964 Civil Rights Act—has already gained a steady reputation as a textualist statutory interpretation decision. The reality of the ruling is far more complicated than that. Bostock is a textualist decision, but, as the argument here shows, Bostock also offers a construction of Title VII’s sex discrimination rule that sounds in a rule-of-law norm of legal justice about LGBT equality that itself traces roots to the Supreme Court’s constitutional LGBT rights jurisprudence. Bostock’s rule-of-law norm of legal justice, which expands and diffuses constitutional norms of LGBT equality in new ways, does more than shape Bostock’s interpretation of Title VII. Through it, Bostock supplies state actors, including courts, with instruction on how to treat all claims of lesbian, gay, and now trans rights, whether they formally involve constitutional rights claims or, as in Bostock, do not. In Bostock’s wake, state actors must ordinarily treat LGBT persons just the same as their cisheterosexual counterparts, affording them the same benefits of established and new legal protections that cisheterosexuals receive.
The path to this larger picture proceeds through an account that explains Bostock both is—and is not—a textualist decision. The opinion’s textualist self-accounting, tracked in these pages, lacks normative justificatory punch on the central interpretive question raised by the claims it decides: whether Title VII’s sex discrimination ban covers anti-gay and anti-trans discrimination. A careful reading of Bostock shows the opinion both disparaging and then ultimately embracing “extratextual” reasons for choosing to read Title VII’s sex discrimination rule in the pro-gay and pro-trans directions that it does.
The most telling of these reasons, in a dramatic turn, abandons the majority’s textualist hunt, and reaches for a general, rule-of-law ideal of legal justice—a distinctive understanding of formal equality involving LGBT persons—that emerges from, and extends to new levels, the legal foundations of the U.S. Supreme Court’s pro-lesbian and pro-gay constitutional rights jurisprudence, whose pro-trans legal implications are expressly recognized by the Supreme Court in Bostock for the first time. Bostock’s announcement of the operations of legal justice in the case—a stylized extension of operative constitutional norms—has far-reaching implications for the interpretation of other statutes that may benefit LGBT persons, as well as other legal rules that, now or in the future, implicate LGBT rights.
Understanding how Bostock follows a line of justification found in the Supreme Court’s constitutional promises of equal dignity and respect for lesbian women, gay men, and trans people frames an account of what is legally misguided about the textualist approaches taken up by the Bostock dissents. These opinions, which indulge both anti-gay and anti-trans sentiments as touchstones for their own preferred choices for how to read Title VII’s sex discrimination ban, flout constitutional values that strip those choices of their own easy claims to legality. Having identified the legal flaws of the dissents’ textualist analytics, discussion turns to the most significant of the likely reasons why the Bostock majority opinion does not expressly avow the constitutional and rule-of-law grounds for its decision. No matter, the recognition of Bostock’s foundations in constitutionalism recasts the pressures the Supreme Court will face in future cases taking up questions that Bostock formally brackets, as well as other wonders about its own text’s meaning. With time, Bostock may prove to be an even bigger breakthrough for LGBT equality and rights under law than at first glance it seems.
The full article is available here.