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Let’s Talk About Gender: Nonbinary Title VII Plaintiffs Post-Bostock

Posted by on Tuesday, October 19, 2021 in Notes, Volume 74, Volume 74, Number 5.

Meredith Rolfs Severtson | 74 Vand. L. Rev. 1507 (2021) |

In Bostock v. Clayton County, the Supreme Court held that Title VII’s sex-discrimination prohibition applies to discrimination against gay and transgender employees. This decision, surprising from a conservative Court, has engendered a huge amount of commentary on both its substantive holding and its interpretive method. This Note addresses a single question arising from this discourse: After Bostock, how will courts address allegations of sex discrimination by plaintiffs whose gender identities exist outside of traditional sex and gender binaries? As this Note explores, some have argued that Bostock’s textualist logic precludes sex-discrimination claims by nonbinary plaintiffs. While such arguments fail to recognize the import of pre-Bostock Title VII jurisprudence, they are worth engaging. Given the history of narrow judicial interpretations of Title VII, the conservative leanings of the federal bench, and the controversial nature of gender-discrimination law, this Note argues that while Title VII protects employees of all gender identities, amending federal law to explicitly prohibit gender-identity discrimination remains a policy priority post-Bostock.

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Meredith Rolfs Severtson