'Sex' and Religion after Bostock
AM. CONST. SOC’Y, SUPREME COURT REVIEW 2019-2020, at 45 (Steven D. Schwinn ed., 4th ed. 2020)
24 Pages Posted: 21 Nov 2020 Last revised: 26 Feb 2022
This paper reviews the U.S. Supreme Court’s opinion in Bostock v. Clayton County. There, the Court held that by barring employer discrimination against any individual “because of such individual’s . . . sex,” Title VII of the Civil Rights Act of 1964 also bars employment discrimination because an individual is gay or transgender. The paper then speculates about how much Bostock will affect how likely lower court judges will read other “sex” discrimination prohibitions in the U.S. Code in the same way, in part based on a canvass of the text of about 150 of those prohibitions. The paper also discusses the religion-based defenses that defendants may raise in response under Title VII itself, the Religious Freedom Restoration Act, and the First Amendment of the U.S. Constitution. And the paper suggests how Bostock’s effect will likely vary with the influence of Trump-appointed federal judges.
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