Bostock v. Clayton County, 590 U.S. 644 (2020)

Citation: Bostock v. Clayton County, 590 U.S. 644 (2020)
Parent Document: Bostock v. Clayton County, 590 U.S. 644 (2020)
Jurisdiction: United States (federal)
Effective Date: 2020-06-15
Original Source: https://www.courtlistener.com/opinion/4760997/bostock-v-clayton-county/ ↗

Full Text

1,567 chars

In addition to the failed argument just discussed, the Court makes two other arguments, more or less in passing. The first of these is essentially that sexual orientation and gender identity are closely related to sex. The Court argues that sexual orientation and gender identity are "inextricably bound up with sex," ante , at 1742, and that discrimination on the basis of sexual orientation or gender identity involves the application of "sex-based rules," ante , at 1745 - 1746. This is a variant of an argument found in many of the briefs filed in support of the employees and in the lower court decisions that agreed with the Court's interpretation. All these variants stress that sex, sexual orientation, and gender identity are related concepts. The Seventh Circuit observed that "[i]t would require considerable calisthenics to remove 'sex' from 'sexual orientation.' " Hively , 853 F.3d at 350.11 The Second Circuit wrote that sex is necessarily "a factor in sexual orientation" and further concluded that "sexual orientation is a function of sex." 883 F.3d 100, 112-113 (CA2 2018) (en banc). Bostock's brief and those of amici supporting his position contend that sexual orientation is "a sex-based consideration."12 Other briefs state that sexual orientation is "a function of sex"13 or is *1761"intrinsically related to sex."14 Similarly, Stephens argues that sex and gender identity are necessarily intertwined: "By definition, a transgender person is someone who lives and identifies with a sex different than the sex assigned to the person at birth."15

Other Sections in This Document (1015)

Full Text