Feminist Perspectives on Bostock v. Clayton County

20 Pages Posted: 18 Nov 2021

See all articles by Catherine Archibald

Catherine Archibald

University of Detroit Mercy School of Law

Ann McGinley

University of Nevada, Las Vegas, William S. Boyd School of Law

Nicole B. Porter

University of Toledo College of Law

Danielle Weatherby

University of Arkansas - School of Law

Ryan H. Nelson

South Texas College of Law Houston

Pam Wilkins

Mercer University - Walter F. George School of Law

Date Written: December 2020

Abstract

This jointly-authored essay is a conversation about the Supreme Court’s recent and groundbreaking decision (Bostock v. Clayton County) that held that discrimination based on sexual orientation or gender identity is discrimination based on sex, and therefore prohibited by Title VII of the Civil Rights Act of 1964. While many scholars are writing about this case, we are doing something unique. We are analyzing this decision from feminist perspectives. We are the editors and four of the authors of a book recently published by Cambridge University Press: Feminist Judgments: Rewritten Employment Discrimination Opinions. This book contains fifteen Supreme Court and Courts of Appeals employment discrimination cases that have been rewritten using feminist perspectives, along with commentaries for each of the rewritten opinions. Two of those rewritten opinions are Courts of Appeals cases involving gender identity (Etsitty v. Utah Transit Authority) and sexual orientation (Hively v. Ivy Tech Community College). Because the book was already in production when Bostock was decided, we were unable to incorporate this momentous case into our book.

And yet, given our experiences rewriting and editing opinions from feminist perspectives, we have something to say about Bostock and its significance for LGBTQ+ employment cases and employment discrimination law more broadly. Accordingly, we wrote this essay, which has three goals: first, to introduce our book; second, to analyze the Bostock case and its effect on employment discrimination law as it relates to sexual orientation and gender identity; and third, to discuss more broadly the effect of Bostock on employment discrimination jurisprudence through a feminist lens. Throughout the essay, we are attempting to answer the question of whether Bostock is a feminist opinion. Our answers are varied and even uncertain; but ultimately, we conclude that even though we, as feminists, might have written it differently, the LGBTQ+ community deserves to celebrate this momentous victory.

Keywords: Equal Protection, LGBTQ+, transgender, gay, lesbian, bisexual, queer, sexual orientation discrimination, transgender discrimination

Suggested Citation

Archibald, Catherine and McGinley, Ann and Porter, Nicole B. and Weatherby, Danielle and Nelson, Ryan and Wilkins, Pamela, Feminist Perspectives on Bostock v. Clayton County (December 2020). Connecticut Law Review Online, Vol. 53, No. 1, 2020, Available at SSRN: https://ssrn.com/abstract=3961651

Catherine Archibald (Contact Author)

University of Detroit Mercy School of Law ( email )

651 East Jefferson Avenue
Detroit, MI 48226
United States

Ann McGinley

University of Nevada, Las Vegas, William S. Boyd School of Law ( email )

4505 South Maryland Parkway
Box 451003
Las Vegas, NV 89154
United States

Nicole B. Porter

University of Toledo College of Law ( email )

2801 W. Bancroft Street
Toledo, OH 43606
United States
419-530-4785 (Phone)

Danielle Weatherby

University of Arkansas - School of Law ( email )

313 Leflar Law Center
Fayetteville, AR 72701
United States

Ryan Nelson

South Texas College of Law Houston ( email )

1303 San Jacinto Street
Houston, TX 77002
United States

HOME PAGE: http://https://www.stcl.edu/about-us/faculty/ryan-h-nelson/

Pamela Wilkins

Mercer University - Walter F. George School of Law ( email )

1021 Georgia Ave
Macon, GA 31207-0001
United States

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