Supreme Court Opinion Cites Student Note
In Bostock v. Clayton County, No. 17-1618, 2020 WL 3146686 (U.S. June 15, 2020), the United States Supreme Court held that Title VII’s prohibition on firing, refusing to hire, or otherwise discriminating against an employee “because of such individual’s . . . sex,” 42 U.S.C. § 2000e-2(a)(1), extends to instances where an employer fires an individual based on their sexual orientation or gender identity.
Though the protections granted by the Court’s decision are novel for LGBT+ workers, the idea that Title VII’s language might provide the basis for legal protections based on sexual orientation is not. As Justice Gorsuch noted in the majority opinion, less than a decade after Congress passed Title VII practitioners and scholars were arguing that it—or the similarly worded Equal Rights Amendment—might protect queer people from discrimination based on their sexual orientation. To support his point, Justice Gorsuch cited a student Note from Vol. 82 of the Journal, entitled The Legality of Homosexual Marriage. 82 Yale L.J. 573 (1973). We previously highlighted this Note for touching on several of the arguments that the Court relied upon in its decision in Obergefell v. Hodges, 135 S. Ct. 2584 (2015); it has proven to be ahead of its time yet again. The Note outlines the argument that discrimination against gay couples would constitute impermissible discrimination on the basis of sex under the proposed Equal Rights Amendment, an argument that would be adapted to Title VII and fleshed out by the petitioners in Bostock—and that was ultimately adopted by the Court.