Section 7

Citation: Section 7
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/ ↗

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some of them. In addition, Congress might have crafted
special rules for some of the relevant statutes. But by in-
tervening and proclaiming categorically that employment
discrimination based on sexual orientation or gender iden-
tity is simply a form of discrimination because of sex, the
Court has greatly impeded—and perhaps effectively
ended—any chance of a bargained legislative resolution.
Before issuing today’s radical decision, the Court should
have given some thought to where its decision would lead.
   As the briefing in these cases has warned, the position
that the Court now adopts will threaten freedom of religion,
freedom of speech, and personal privacy and safety. No one
should think that the Court’s decision represents an unal-
loyed victory for individual liberty.
   I will briefly note some of the potential consequences of
the Court’s decision, but I do not claim to provide a compre-
hensive survey or to suggest how any of these issues should
necessarily play out under the Court’s reasoning.43
   “[B]athrooms, locker rooms, [and other things] of [that]
kind.” The Court may wish to avoid this subject, but it is a
matter of concern to many people who are reticent about
disrobing or using toilet facilities in the presence of individ-
uals whom they regard as members of the opposite sex. For
some, this may simply be a question of modesty, but for oth-
ers, there is more at stake. For women who have been vic-
timized by sexual assault or abuse, the experience of seeing
an unclothed person with the anatomy of a male in a con-
fined and sensitive location such as a bathroom or locker
room can cause serious psychological harm.44
   Under the Court’s decision, however, transgender per-
sons will be able to argue that they are entitled to use a
bathroom or locker room that is reserved for persons of the
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  43 Contrary to the implication in the Court’s opinion, I do not label

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