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Bostock, LGBT Discrimination, and the Subtractive Moves

By Andrew Koppelman. Full Text.

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 does not 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.