Bostock, LGBT Discrimination, and the Subtractive Moves

Minnesota Law Review Headnotes, Forthcoming

Northwestern Public Law Research Paper No. 20-16

42 Pages Posted: 26 Jun 2020 Last revised: 25 May 2021

Date Written: June 25, 2020

Abstract

In Bostock v. Clayton County, the Supreme Court held that Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment, covers discrimination on the basis of sexual orientation and gender identity. The dissenting Justices, following the reasoning of several Court of Appeals judges, embraced a series of subtractive argumentative moves in order to argue that the statute does not prohibit discrimination that is explicitly within its scope, and which is part of the mischief that the statute aims to remedy.

This article catalogues and critiques the subtractive moves. One may focus on (1) the law’s prototypical referent, or (2) the categories of objects that it happens to bring to mind, or (3) distinctions that feel familiar but which do not appear in the statute, or (4) formalist exceptions that are unrelated to the law’s language, or (5) the general expectations that were part of the law’s cultural background. One may also (6) claim that the law, read in its cultural context, simply doesn’t mean what it literally says. Each of these reaches outside the statute in order to defeat the law’s literal command. This strategy maximizes judicial discretion and betrays the promise of textualism.

Keywords: Bostock v. Clayton County, Statutory Interpretation, Legislation, Title VII, LGBT Rights, Gay Rights, Discrimination

JEL Classification: K10, K30

Suggested Citation

Koppelman, Andrew M., Bostock, LGBT Discrimination, and the Subtractive Moves (June 25, 2020). Minnesota Law Review Headnotes, Forthcoming, Northwestern Public Law Research Paper No. 20-16, Available at SSRN: https://ssrn.com/abstract=3635732 or http://dx.doi.org/10.2139/ssrn.3635732

Andrew M. Koppelman (Contact Author)

Northwestern University School of Law ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-8431 (Phone)

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