Read the series so far.
As we consider the oral arguments, let’s reset and consider what Bostock is all about. It’s always refreshing to set aside the rhetoric, the passion and the partisanship and just look at the text of the statute. It clarifies things. Makes them simple.
Note: I’m not concerned with the conventions of American legal interpretation. I’m writing as a sane layperson who has spent his life in law enforcement and investigations, in criminal and civil contexts in both Federal and State government.
The point at issue is whether Clayton County, by allegedly firing Bostock because he was a homosexual, violated Title VII of the 1964 Civil Rights Act. So, the very first thing is to look at what the statute says. Here’s what it says:
EMPLOYER PRACTICES It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or42 USC 2000e-2(A)
That’s it. It all comes down to that. Remember this.
The linchpin of Bostock’s argument is that you can’t separate discrimination “because of … sex” from discrimination “because of … sexual orientation.” Of course, the phrase “sexual orientation” is not in the text. Bostock argues that we must read it into “sex.”
In a previous post, I explained how to understand what, exactly, the phrase “discrimination because of sexual orientation” means. You may think you understand. After all, doesn’t everybody?
No. We can’t assume anything. We must define our terms. This is the way it works with these things. Interestingly, Bostock doesn’t try to define the phrase. Not in the petition. Not during the oral arguments. The phrase just exists as this … thing. I’m not sure whether this is deliberate. I’m surprised Clayton County didn’t define it either. I think it would have helped. Neither did the Solicitor General on behalf of the U.S. Justice Department, in support of Clayton County.
So, here is a reasonable way to understand “discrimination because of sexual orientation:”
Cobbling together the relevant OED definitions for “sex,” “orientation” and “discriminate,” we can construct an objective definition for “discrimination because of sexual orientation” as something like this:
treating a person in an unfair or prejudicial manner (OED, s.v. “discriminate,” v., 4) because of his emotional attitude and appetite with respect to sexual partners (see OED; s.v. “orientation,” n., 3).
This is a fair and conclusive definition of the concept at issue in Bostock, whose case hinges (in large part) on proving that discrimination “because of … sex” (i.e. being male or female; OED, s.v. “sex,” n., 1a, 2) is analogous to discrimination “because of … emotional attitude with respect to sexual partners.”
Words have semantic domains or broad ranges of meaning. The right meaning of a word depends on context. Some may attempt to interpret “discriminate” in Bostock’s context as something innocuous, perhaps merely to differentiate or distinguish (OED, s.v. “discriminate,” v., 1). This will not do. The context for Title VII is to treat a person or group in an unjust or prejudicial manner, which is why I selected the definition I did (OED, s.v. “discriminate,” v., 4).
Now, we get down to it. Bostock argues:
When a employer fires a male employee for dating men but does not fire female employees who date men, he violates Title VII. The employer has, in the words of Section 703(a), discriminated against the man because he treats that man worse than women who want to do the same thing. And that discrimination is because of sex, again in the words of Section 703(a), because the adverse employment action is based on the male employee’s failure to conform to a particular expectation about how men should behave; namely, that men should be attracted only to women and not to men.Oral Arguments, 4:13-25. Emphasis added.
This is the argument:
- Men must only have sex with women.
- But, Bostock wants to have sex with men.
- This means Bostock fails to act like a man.
- Clayton County fired Bostock because he wasn’t acting like a man.
- So, Clayton County discriminated against Bostock because of sex; because he wasn’t acting as the County felt a man should act.
Bostock hangs its hat on the precedent in Price Waterhouse v. Hopkins (1989), in which a woman claimed she was denied a partnership at a law firm because she didn’t act like a prototypical woman. Specifically, one superior advised the woman in Price that, if she wanted to improve her chances to make partner:
Hopkins should “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”
In that case, the U.S. Supreme Court ruled that sex stereotyping was discrimination “because of … sex” under Title VII of the 1964 Civil Rights Act:
Discrimination against an employee on the basis of sex stereotyping–that is, a person’s nonconformity to social or other expectations of that person’s gender–constitutes impermissible sex discrimination, in violation of Title VII of the Civil Rights Act of 1964.
In the same way, Bostock argues, his termination was also because of his failure to conform to societal expectations about his gender; specifically, that as a man he must only have sex with women. As a homosexual, he obviously does not comply with this “stereotype” and was thus discriminated against by Clayton County when it fired him:
when a man is discriminated against for being gay, he is discriminated against for not conforming to an expectation about how men should behave.Oral Arguments, 5:20-23
There is much more, and I’ll cover it in the next article. But, this is the essence of the argument. There are several problems here.
Different words. Discrimination “because of … biological sex” (OED, s.v. “sex,” n., 1a, 2) is not the same thing as discrimination “because of … emotional attitude with respect to sexual partners” (see OED, s.v. “discriminate,” v., 4; s.v. “orientation,” n., 3). They are completely different. The words don’t lie. They mean something. In this case, they mean different things.
Different concepts. It’s true that both scenarios involve a gendered individual. But, discrimination “because of … sex” happens because of a biological status (OED, s.v. “sex,” n., 1a). It is to treat someone in an unjust and prejudicial manner (OED, s.v. “discriminate,” v., 4) because of the nature of his reproductive functions. Orientation, however, is about one’s emotional attitude and feelings with respect to sexual partners (OED; s.v. “orientation,” n., 3). These are completely different concepts.
Must prove intent. If it’s a violation to discriminate “because of … sex,” then someone must prove intent. What does “because of” mean? It means that the discrimination happened because of biological sex. There may well be other factors at play. But, in some form or fashion, the termination must have happened because of sex. Bostock’s case should not have been considered unless he could prove specific intent “because of … sex” in Clayton County’s termination. It doesn’t matter that it’s hard to prove which one happened; if anything even “happened” at all. That’s why the burden of proof is on the accuser. If Bostock wishes to tie the two together, he must prove they’re the same thing. They’re not. This leads us to the next problem.
No standing. In order for this case to have any merit, Bostock must prove the following:
- That a discrimination occurred. If the word “discriminate” is not defined by the statute, Bostock should have used an authoritative lexicon such as OED, s.v. “discriminate,” v., 4 to define his terms.
- That Clayton County committed this discrimination.
- That Clayton County committed this discrimination against Bostock because of his sexual orientation.
- That “sexual orientation” is reasonably analogous to the term “sex.” Again, if the statute did not define these terms, Bostock should have used the OED (or another authoritative lexicon) to define these terms and show they’re analogous.
If Bostock had proven these elements, he could have plausibly demonstrated that Clayton County violated Title VII of the 1964 Civil Rights Act.
None of this happened. At best, Bostock attempted to argue #4. He did this badly and superficially. It’s difficult to understand why this case ever arrived at the U.S. Supreme Court. The attorney who argued Bostock’s case during oral arguments, Pamela Karlen, betrayed a superficial understanding of the issue in response to probing questions from the Court during oral arguments. We will turn to that in the next article.
I’ve made these arguments in a rather detached, clinical way. I haven’t even brought reality, as defined by the Christian scriptures, into this discussion. I’ll do that once I finish the series. For now, it’s enough to see the bankruptcy of Bostock’s argument.