In Bostock was Bogus:
Textualism, Pluralism, and Title VII, forthcoming in the Notre Dame Law
Review and available
on SSRN, Mitchell Berman and Guha Krishnamurthi argue that Bostock v. Clayton County rested on a
defective understanding of causation. They
claim that an employer who discriminates against LGBT people is not motivated
by the employee’s sex, as the Court held, but rather by the employee’s sexual
orientation.
I disagree, and have just posted a response. (I have been arguing for decades that LGBT
discrimination is properly understood as an illegal form of sex discrimination.) They are both distinguished scholars, but they
mistakenly take the linguistic happenstance of a separate term for
gender-atypical behavior – here, “homosexuality” – to subtract those whom the
term describes from the statute’s protection.
Parallel conjunctions of discriminations do not balance out. If they did, the statute could be nullified
in all of its applications by allowing employers to discriminate against those,
male or female, black or white, who seek jobs inconsistent with the traditional
social role of their race or sex.