Good for Thee, but Not for Me: How Bisexuals are Overlooked in Title VII Sexual Orientation Arguments
Good for Thee, but Not for Me: How Bisexuals Are Overlooked in Title VII Sexual Orientation Arguments, ___ U. MIAMI RACE & SOC. JUST. L. REV. ___ (2020 Forthcoming)
23 Pages Posted: 19 Jun 2020
Date Written: 2020
Legal scholars frequently refer to Title VII protections for LGBTQ individuals. However, their examples and legal theories invariably focus on protections for lesbian, gay, and transgender individuals to the exclusion of bisexuals. The three Title VII cases heard by the Supreme Court on October 8, 2019, are illustrative of this point. Two involve the issue of discrimination against a gay employee, and the other involves discrimination against a transsexual employee. In the two hours of oral arguments for these three cases, the word “bisexual” was never spoken. Even the acronym “LGBT” — in which the “B” stands for bisexuals — was never mentioned. And the petitioner’s attorney in Bostock explicitly disagreed with interpreting Title VII to “encompass sexual orientation discrimination.”
Despite claims that a Supreme Court decision in favor of Bostock would provide protections to employees discriminated against based on their sexual orientation, an evaluation of the arguments in Bostock casts serious doubt on how they would affect a future case involving a similarly situated bisexual plaintiff. This essay evaluates the three arguments presented by petitioners in Bostock in favor of extending Title VII protections to gays and lesbians and assesses their effectiveness when applied to protecting bisexuals. The three arguments are (1) discrimination “because of . . . sex,” (2) Price Waterhouse gender stereotyping, and (3) associational discrimination.
Keywords: Title VII, Bisexual, LGBTQ, Bisexual erasure, Bostock, Sexual orientation discrimination, bisexual double discrimination, Harris Funeral Homes, Zarda, Associational discrimination, Price Waterhouse gender stereotyping, Because of sex, Windsor
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