Before Bostock

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On June 15, 2020, the Supreme Court ruled in Bostock v. Clayton County, in a 6-to-3 decision with a majority opinion authored by conservative Justice Neil Gorsuch, that Title VII of the Civil Rights Act of 1964 prohibited employment discrimination on the basis of gender identity and sexual orientation. The decision was a surprise to many, if not most, observers, but as Jason Pierceson explores in this work, it was not completely unanticipated. The decision was grounded in a recent but well-developed shift in federal jurisprudence on the question of LGBTQ+ rights that occurred around 2000, with gender identity claims faring better in federal court after decades of skepticism. The most important precedent for these cases was a 1989 Supreme Court case that did not deal directly with LGBTQ+ rights: Price Waterhouse v. Hopkins.
The court ruled in Price Waterhouse that “sex stereotyping” is a form of discrimination under Title VII, a provision that prohibits discrimination in employment based upon sex. Ann Hopkins was a cisgender, heterosexual woman who was denied a promotion at her accounting firm for being too “masculine.” At the time of the decision, and in the wake of the devastating decision for the LGBTQ+ movement in Bowers v. Hardwick (1986), the case was not viewed as creating a strong precedential foundation for LGBTQ+ rights claims, especially claims based upon sexual orientation. Even in the context of gender identity, the connection was not made to the emerging movement for transgender rights until a decade later. In the 2000s, however, federal courts were consistently applying the case to protect transgender individuals.
While not the result of coordinated litigation, nor initially connected to the LGBTQ+ rights movement, Price Waterhouse has been one of the most important and powerful precedents in recent years outside of the marriage equality cases. Before Bostock tells the story of how this “accidental” precedent evolved into such a crucial case for contemporary LGBTQ+ rights.
Pierceson examines the groundbreaking Supreme Court decision of Bostock v. Clayton County through the legal path created by Title VII of the Civil Rights Act of 1964 and the interpretation of the word “sex” over time. Focusing on history, courageous LGBTQ+ plaintiffs, and the careful work of legal activists, Before Bostock illustrates how the courts can expand LGBTQ+ rights when legislators are more resistant, and it adds to our understanding about contemporary judicial policymaking in the context of statutory interpretation. Acknowledgments
1. LGBTQ Rights, Statutory Interpretation, and Judicial Policymaking
2. The History of LGBTQ Rights, Sex, and title VII
3. Price Waterhouse v. Hopkins and the Shift in title VII Interpretation
4. Transgender Tights and Price Waterhouse5. Sexual Orientation, Price Waterhouse, and Oncale6. Bostock, Stephens, and Zarda in the Lower Federal Courts
7. The Supreme Court’s Seemingly Minimalist but Remarkably Consequential Decision
Notes
Index “Reflecting thorough research, Jason Pierceson contributes to the literature on LGBTQ rights with a comprehensive analysis of the role of the courts in LGBTQ policymaking. He focuses on the evolving interpretation of Title VII of the 1964 Civil Rights Act, from the US Supreme Court’s ruling in Price Waterhouse v. Hopkins (1989) to its decision in Bostock v. Clayton County (2020). With meticulous detail, he shows how Price Waterhouse set the stage for the next several decades of litigation over employment discrimination based on gender identity and sexual orientation, culminating in the eventual victory in Bostock.”—Susan Gluck Mezey, professor emerita, Department of Political Science, Loyola University Chicago

“For casual observers, Bostock was a surprising and unexpected victory for LGBTQ rights, especially because it was penned by Trump nominee Neil Gorsuch. But activists had been working toward that victory for decades, arguing cases and bringing the courts where they wanted them on Title VII. In the end, the decision was ‘monumental and enormously consequential but legally and politically easy.’ History comes alive in this story of the legal roots of protections from workplace discrimination against LGBTQ people. This is no dry academic text, it is storytelling: a fascinating journey with fresh insights and new details that will delight everyone from those new to the case to those more familiar with the Bostock decision and its legal precedents.”—Melissa R. Michelson, coauthor of Transforming Prejudice: Identity, Fear, and Transgender Rights and LGBTQ Life in America: Examining the Facts “In this riveting and beautifully written account of one of the major US Supreme Court rulings on gender discrimination, Professor Jason Pierceson reminds us that the equality-enhancing consequences of civil rights litigation are not always predictable or confinable. Everyone interested in the workings and possibilities of antidiscrimination law should read this fascinating tale of how a lawsuit involving a determined and courageous cisgender heterosexual woman, who was denied a promotion for supposedly being ‘too masculine,’ played a crucial role, decades later, in vital LGBTQ equality victories.”—Carlos A. Ball, distinguished professor of law, Rutgers University, and author of The Queering of Corporate America “Jason Pierceson details the astonishing ‘accidental precedent’ of Price Waterhouse v. Hopkins in shaping LGBTQ litigation strategies and successes in the federal courts over three decades. This is a deeply engaging and thoughtful account that provides clear insights into the benefits and pitfalls facing minority groups that seek legal protections from the courts. A must-read for LGBTQ politics scholars, students, and legal advocates.”—Don Haider-Markel, professor of political science, University of Kansas

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