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Bostock for Bisexuals?

18 Jun 2020

Decided a mere two days ago, Bostock v. Clayton County, Georgia is one of the most important Supreme Court judgements for LGBT rights in the USA - it holds that “an employer who fires an individual merely for being gay or transgender violates Title VII” of the Civil Rights Act of 1964. For those unfamiliar, here’s an explainer of the case I made. In brief, the majority opinion suggests that by firing a gay employee, what you’re really saying is that you’re fine with a female employee to be attracted to men but not for a male employee to be attracted to men. That means you are discriminating based on sex, which is a protected characteristic under Title VII. Likewise, by firing a transgender employee, what you’re really saying is that you’re fine with a female-born employee to identify as female now but not for a male-born employee to identify as male now.

However, it made me wonder - lots of publications have been speaking about the protections it provides for LGBT people, and yet the lines of analysis by which it applies Title VII would seem not to provide protections for bisexual workers. Here’s why: invoking the but-for standard of causation suggests we should compare whether a male bisexual employee would have been fired if they had been female. Unfortunately, given an employer who is bi-phobic, they would have. As such, their termination was a result only of their sexual orientation, rather than their sex - leaving them unprotected by Title VII.

Now I’m no lawyer, and it may be possible to note use the but-for test in a different way i.e. they would not have been fired but-for their homosexuality and homosexuality is now a protected characteristic - but it does feel like something well worth considering when evaluating the implications of Bostock.

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