Cornell Law School Logo - white on transparent background

Volume 106

Note

Bostock v. Clayton County: The Implications of a Binary Bias

A. Russell, J.D. Candidate 2022, Cornell Law School; B.A. in Theater, Film & Media Studies, and Gender & Sexuality Studies, Haverford College, 2014.

, , , ,

13 Nov 2021

This Note focuses specifically on the implications of Bostock v. Clayton County for nonbinary people. Although part of the broader transgender community, nonbinary people do not directly enter into the Court’s analysis.1Vin Gurrieri, Questions About ‘Nonbinary’ Bias Linger After LGBT Ruling, LAW 360 (June 19, 2020), https://www.law360.com/articles/1284955/questions-about-nonbinary-bias-linger-after-lgbt-ruling [https://perma.cc/CML7V9WD]. Indeed, the only mention of gender identity beyond the binary spectrum appears in Justice Alito’s dissent as a cautionary warning against the dangers of protecting people who do not hold stable male or female identities.2Bostock, 140 S. Ct. at 1779 (Alito, J., dissenting) (worrying that “individuals who are ‘gender fluid,’ . . . who ha[ve] not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time” (citation omitted). Furthermore, Justice Gorsuch’s strict textualist logic rests on a binary framework of sex and gender, which seems to depend upon the nonexistence of nonbinary identity altogether.3See id. at 1739 (framing his analysis with a definition of “sex” expressed exclusively in terms of “male and female”). Although experts again seem to agree that Bostock’s protections will reach nonbinary people,4See, e.g., 3 MERRICK T. ROSSEIN, Title VII and Employees with Non-Binary Identity—Generally, in EMPLOYMENT DISCRIMINATION LAW AND LITIGATION, supra note 10, at § 27:13 (asserting that Bostock’s holding “applies with equal force to non-binary people as it does to transgender men and women”). the question remains how. I argue that the language and framework chosen by litigators and courts to clarify the protection of nonbinary employees under Bostock will impact the degree to which nonbinary plaintiffs do or do not enjoy equal antidiscrimination protection.

This Note will address the disconnect between the liberatory promise of Bostock and the implications of the case’s constricting language for the developing legal rights of gender nonbinary people. First, I will provide background information about the wide breadth of sex and gender variance existing outside the scope of the Court’s imagination in Bostock, with a focus on transgender and nonbinary diversity. I will then explain how the dominance of binary transgender plaintiffs in prior sex stereotyping case law has failed to adequately represent gender nonbinary needs and left them stranded between transgender and gender nonconforming rights. Next, I will explain how the Court’s choice in Bostock v. Clayton County to extend protections to transgender people on textualist rather than sex stereotyping grounds both avoids and reproduces some of the pitfalls of prior case law while introducing new challenges for nonbinary plaintiffs. Finally, I will analyze several arguments available to litigators to secure protections for nonbinary people under Bostock and the relative strengths of each. I argue that unless litigators can convince courts to directly include nonbinary people in Bostock’s holding, nonbinary plaintiffs may still be subject to the same compromised protection afforded them under prior sex stereotyping case law. Ultimately, nonbinary people will only gain full protection under a model that recognizes them in their own right, rather than views nonbinary claims as merely weaker versions of transgender or gender nonconforming ones.

To read this Note, please click here: Bostock v. Clayton County: The Implications of a Binary Bias.

References

References
1 Vin Gurrieri, Questions About ‘Nonbinary’ Bias Linger After LGBT Ruling, LAW 360 (June 19, 2020), https://www.law360.com/articles/1284955/questions-about-nonbinary-bias-linger-after-lgbt-ruling [https://perma.cc/CML7V9WD].
2 Bostock, 140 S. Ct. at 1779 (Alito, J., dissenting) (worrying that “individuals who are ‘gender fluid,’ . . . who ha[ve] not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time” (citation omitted).
3 See id. at 1739 (framing his analysis with a definition of “sex” expressed exclusively in terms of “male and female”).
4 See, e.g., 3 MERRICK T. ROSSEIN, Title VII and Employees with Non-Binary Identity—Generally, in EMPLOYMENT DISCRIMINATION LAW AND LITIGATION, supra note 10, at § 27:13 (asserting that Bostock’s holding “applies with equal force to non-binary people as it does to transgender men and women”).
––––––––––––––––––––––––––––––––––––––––––––––––––