REDEFINING WHAT IT MEANS TO DISCRIMINATE BECAUSE OF SEX: BOSTOCK’S EQUAL PROTECTION IMPLICATIONS

Bostock v. Clayton County has been widely recognized as momentous for providing LGBTQ Americans with protection against workplace discrimination, helping to safeguard their economic wellbeing and dignity. But it also has the potential to impact sex discrimination jurisprudence even more broadly. This Note argues that Bostock fundamentally redefined what it means to discriminate because of sex, expanding the definition to include discrimination based on any characteristic that is definitionally related to, and thus logically inseparable from, sex. Situating this decision within sex discrimination jurisprudence and extrapolating from Title VII to the Fourteenth Amendment context, this Note demonstrates that Bostock’s redefinition challenges earlier decisions that excluded certain forms of sex discrimination, such as pregnancy discrimination and reproductive choice restrictions, from equal protection’s scope. Intentional or not, the majority’s rationale ensured that the decision would enter into the decades-long search for the true meaning of sex discrimination.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2022, Columbia Law School. I would like to thank Professor Maeve Glass for her crucial guidance and encouragement, Professor Richard Briffault for his generous and thoughtful feedback, the staff of the Columbia Law Review for their excellent editorial assistance, and my parents and friends for their unyielding support.

Introduction

“I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.”

— Justice Ruth Bader Ginsburg, quoting Sarah Grimké 1 RBG, at 01:33–01:46 (Storyville Films 2018) (cleaned up) (available on Netflix) (quoting Letter from Sarah Moore Grimké to Mary S. Parker (July 7, 1837), in Letters on the Equality of the Sexes, and the Condition of Woman 9, 10 (1838) (on file with the Columbia Law Review)).

While Sarah Grimké first authored these words nearly two hundred years ago, Justice Ginsburg revived them when she quoted this line to open her eponymous documentary. It is striking that this quote from a woman in the mid-nineteenth century would resonate so strongly with twenty-first-century women that the filmmakers chose it to frame the film. Grimké penned these words in a cultural and legal landscape almost unrecognizable to modern eyes—slavery was legal and thriving, 2 See The Civil Rights Act of 1964: A Long Struggle for Freedom, Libr. of Cong., https://www.loc.gov/exhibits/civil-rights-act/legal-events-timeline.html [https://perma.cc/3F7Y-5RKC] [hereinafter Civil Rights Act of 1964 Timeline] (last visited Sept. 30, 2021) (providing a timeline of important civil rights events and demonstrating that slavery was lawful in the United States until adoption of the Thirteenth Amendment in 1865). women could not vote, 3 See id. (showing that women did not have the right to vote until adoption of the Nineteenth Amendment in 1920). and there were no federal civil rights laws. 4 See id. (indicating that the Civil Rights Act of 1866 was the first federal civil rights law). And yet, Grimké’s words connected with Justice Ginsburg very deeply. Louise Knight, a historian writing a biography on Grimké, posited why this connection “makes sense”: “Though born 141 years apart, both women encountered obstacles because of their gender; both women insisted that ‘our brethren’ take their feet ‘off our necks.’ And they both gravitated toward the law. Grimké wanted to become a lawyer and a judge, too. She wanted to become what Ginsburg became.” 5 Louise W. Knight, Opinion, The 19th-Century Powerhouse Who Inspired RBG, CNN (Sept. 1, 2018), https://www.cnn.com/2018/09/01/opinions/ruth-bader-ginsburg-rbg-and-grimke-sisters-louise-knight/index.html [https://perma.cc/BTB8-6JPD].

Justice Ginsburg is well known as one of the founders of modern sex discrimination jurisprudence, based in large part on the cases she brought as a litigator before joining the Supreme Court. 6 See, e.g., Cary Franklin, The Anti-Stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 86 (2010) [hereinafter Franklin, Anti-Stereotyping Principle] (arguing that Ginsburg’s “foundational” 1970s equal protection cases “helped to shape the Court’s sex-based equal protection jurisprudence”). In the wake of the tremendous loss of Justice Ginsburg, countless tributes celebrated her legacy through the lens of her impact on sex discrimination law. 7 See, e.g., Brenda Feigen, Goodbye, Old Friend: Tribute to Justice Ruth Bader Ginsburg, 121 Colum. L. Rev. 519, 536 (“[I]t’s clear that without Ruth we would not be accorded the level of scrutiny that is applied today in sex discrimination cases.”); Mary Ziegler, ‘One of the Most Articulate Defenders of a Right to Choose Abortion’, in ‘The Most Important Woman Lawyer in the History of the Republic’, Politico Mag. (Sept. 18, 2020), https://www.politico.com/news/magazine/2020/09/18/ruth-bader-ginsburg-legacy-418191 [https://perma.cc/3TJG-UXJ6] [hereinafter Politico, The Most Important Woman Lawyer] (“Anyone looking to understand the law of sex discrimination in the United States should begin with Ruth Bader Ginsburg.”). Ginsburg’s litigation was momentous for successfully establishing that the Fourteenth Amendment’s Equal Protection Clause protects against discrimination based on sex. 8 See infra section I.B; see also Linda Hirshman, ‘She Pivoted the Entire Structure of the 14th Amendment’, in Politico, The Most Important Woman Lawyer, supra note 7 (explaining that Ginsburg’s litigation campaign in the 1970s and ’80s “pivoted the entire structure of the 14th Amendment to cover equal rights for women”). But the import of these cases went even further—they set the framework for how the judiciary, legal scholars, and the American public understand sex discrimination. 9 See Cary Franklin, A Champion of the Constitution’s Democratic Ideals, in Politico, The Most Important Woman Lawyer, supra note 7 (“As an advocate, Justice Ginsburg did more than any other lawyer in American history to help the Supreme Court, and the nation, recognize that sex discrimination contravened the[] constitutional guarantees [of liberty and equality].”); Ziegler, supra note 7 (“[Ginsburg’s] work changed what we mean when we talk about discrimination.”). Grimké’s analogy of “feet” on women’s “necks” takes on added significance as a window into how Justice Ginsburg understood sex discrimination—legal barriers that create artificial obstacles to women’s full participation in society. 10 See Jeffrey Rosen, RBG’s Life, in Her Own Words, Atlantic (Sept. 19, 2020), https://www.theatlantic.com/ideas/archive/2020/09/rbgs-life-her-own-words/616414/ (on file with the Columbia Law Review) (citing Nat’l Const. Ctr., 2020 Liberty Medal Honoring Justice Ruth Bader Ginsburg, YouTube, at 45:35–46:02 (Sept. 17, 2020), https://www.youtube.com/watch?v=Hzk4HWZiQoc (on file with the Columbia Law Review) (describing her litigation goals as “removing artificial barriers blocking women’s engagement in many fields of human endeavor”)).

But what exactly does it mean to discriminate because of sex? Even if the definition of sex is clear, 11 In reality, the definition of sex, in society at large and under the law, is not settled. Many scholars have demonstrated how the law’s treatment of sex has vacillated between biology, performance, gender norms, and more. See, e.g., Mary Anne C. Case, Disaggregating Gender From Sex and Sexual Orientation: The Effeminate Man in the Law and Feminist Jurisprudence, 105 Yale L.J. 1, 17 (1995) (“Courts toss around the words ‘gender,’ ‘masculine,’ ‘feminine,’ and ‘sex stereotyping’ fairly often in sex discrimination cases. But they do not always use these terms consistently or self-consciously, and they do not always recognize gender issues when such issues are presented.”); William N. Eskridge Jr., Brian G. Slocum & Stefan Th. Gries, The Meaning of Sex: Dynamic Words, Novel Applications, and Original Public Meaning, 119 Mich. L. Rev. 1503, 1549–60 (2021) (explaining how the use of “sex” in 1964 included what we now think of as gender, and arguing that the Bostock majority switched from “the assumption of sex as biology” to “sex as gender” during the course of the opinion); see also infra notes 36–42 and accompanying text. This Note accepts, for purposes of argument and as the Bostock majority claims to, a biology-based definition of sex. See Bostock v. Clayton County, 140 S. Ct. 1731, 1739 (2020). The argument, however, could apply to any definition of sex. the definition of sex discrimination does not follow seamlessly. After decades of case law, the Supreme Court has established certain principles for determining what constitutes sex discrimination, but much ambiguity remains. 12 See infra Part I. Even in cases where a court has found discrimination because of sex, the perpetrator is almost never actually scrutinizing the target’s biology. 13 See Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex From Gender, 144 U. Pa. L. Rev. 1, 36 (1995) (“When women are denied employment, for instance, it is not because the discriminator is thinking ‘a Y chromosome is necessary in order to perform this kind of work.’ Only in very rare cases can sex discrimination be reduced to a question of body parts.”). Thus, to discriminate because of sex must mean something more than treating someone worse solely because of their biology.

Bostock v. Clayton County, 14 140 S. Ct. 1731. a recent Supreme Court decision, waded into this muddled jurisprudence and immediately made a splash; however, its full meaning and scope are not immediately clear. The holding, that Title VII’s prohibition on sex discrimination includes discrimination based on sexual orientation and gender identity, 15 Id. at 1754. is fairly straightforward. Its broader implications, on the other hand, are still emerging.

This Note offers one interpretation for Bostock’s implications. It argues that Bostock fundamentally redefined what it means to discriminate because of sex, expanding the definition to include discrimination based on any characteristic that is definitionally related to, and thus logically inseparable from, sex. Situating this decision within sex discrimination jurisprudence and extrapolating from Title VII to the Fourteenth Amendment context, 16 For an explanation of why this extrapolation is justified, see infra notes 248–249 and accompanying text. this Note demonstrates that Bostock’s redefinition challenges earlier decisions that excluded certain forms of sex discrimination, such as pregnancy discrimination and reproductive choice restrictions, from equal protection’s scope. Intentional or not, the majority’s rationale ensured that the decision would enter into the decades-long search for the true meaning of sex discrimination.

This Note proceeds in three parts. Part I traces the history of constitutional sex discrimination jurisprudence, including the seminal cases that established the framework for this area of law and the scholarship that has helped explain and shape it. It also discusses the areas of apparently sex-based state action that the Court has deemed outside the scope of equal protection’s prohibition on sex discrimination, specifically focusing on laws regulating pregnancy and abortion access. Part II examines Bostock in depth, delving into the opinions’ definitions of sex discrimination. It posits that the majority’s definition of sex discrimination expanded its scope, enveloping a wider array of sex-based regulation. Part III examines how Bostock’s redefinition applies to prior and future decisions, demonstrating that Bostock provides the basis for holding that laws regulating pregnancy and abortion access are sex-based and thus should be subject to intermediate scrutiny.