Bostock v. Clayton County, Georgia: Mock Dissent Opinion


     Bostock v. Clayton County, Georgia (2020) is a landmark decision where the U.S. Supreme Court judges held that Title VII of the Civil Rights Act of 1964 protects employees on the basis of sexual orientation or gender identity. The brief facts about the case were that that the plaintiff’s, Gerald Bostock, employment contract was terminated seemingly supporting LGBTQI community.1 The plaintiff filed a suit objecting to his dismissal arguing that his rights under Title VII had been violated. This paper presents an alternative view on the case from the points of view of John Austin, a prominent legal theorist and an ardent supporter of legal positivism.

Bostock Case: A Historical Perspective

    The issue for determination in this case centers on whether the provisions of Title VII of the Civil Rights Act of 1964 should be interpreted to the extent it protects employees from discrimination on the basis of sexual orientation. In determining the issue, the Court needs to consider the law, while acknowledging its role in interpreting the law and administering justice. The said Title VII states that it is “unlawful…for an employer to fail or refuse to hire or discharge any individual, or otherwise to discriminate against any individual …because of such individual’s race, color, religion, sex, or national origin” [emphasis on the italicized].”1 The law, as it is, prohibits any form of discrimination based on disability, age, national origin, or sex. The short answer to the issue, before the court, is that sexual orientation is not included in Title VII and, therefore, an employer may be argued to have not violated the law for firing an employee based on their sexual orientation. The longer answer to this opinion that contradicts the majority is elucidated in subsequent analysis.

     John Austin defines the law as the command of the supreme, which is based on strict adherence to power and obedience. He distinguishes positive law (what law is) from other non-law and general definitions that merely resemble law, herein including divine law. He states that law is a command produced by a sovereign power that is supported by a threat of sanction/punishment in the event of non-adherence to it.1 Accordingly, the legitimacy of a law is derived from its source rather than its merits/contents. In other words, a rule X becomes a legitimate law in a society B only if rule X is introduced by a sovereign in B and supported (enforced) by a sanction or punishment for non-compliance. The sovereign, in the case of Austin, refers to the supreme leader of a society. However, in a society where there is no clear sovereign, the people are deemed as the sovereign. The “people” as the sovereign delegate their law-making power to the legislature to make laws on their behalf.

The Societal Impact of Bostock v. Clayton County

     The U.S. Constitution, through the doctrine of separation of powers, delegates supreme power to three organs of the government – the Executive, Legislative (Congress), and the Judiciary (Supreme Court). According to the doctrine of separation of powers, Congress is tasked with making and amending laws, while the Supreme Court is tasked with interpreting the law and administering higher justice. It would, therefore in the eyes of John Austin, be ultra vires or arbitrary to attempt to create law seemingly because one feels there is a void in existing law and does not like the outcome of the interpretation of existing law. Accordingly, if applying the thinking of Austin and other legal positivists, judges should follow the law rather than create law. Judges are considered as “lieutenants” of the Congress when it comes to legal matters. They receive orders in the form of the provisions of Constitution and statutes, with their primary role being to interpret the law as prescribed in statutes/Constitution. Therefore, they must dutifully interpret the law as it is regardless of their independent stance on an issue.

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         The Courts use the ordinary or plain meaning rule when interpreting the law, unless doing so may result in an absurdity or loss of original intent. John Austin would argue that the plain meaning rule of statutory interpretation dictates that when the language used in a statute is explicit and clear, then judges must interpret the law in its original form, but not over-relying on interpretation or extrinsic evidence [emphasis on the italicized words].1 Plain meaning, in this case, refers to the definition that a reasonable reader would ascribe to the word/phrase. The people, through Congress, enacted the Title VII of the Civil Rights Act in 1964, which prohibits discrimination by an employer on the grounds of race, color, sex, religion, and nation of origin. From reading of this law, the immediate question that arises in relation to current case is whether sexual orientation forms part of “sex” as parts of the grounds for discrimination. John Austin would probably refer to the ordinary meaning of the word “sex” and “sexual orientation” as defined in the Black’s Law Dictionary addresses such concerns by providing two distinct definitions of the terms. Christopher Hutton, when analyzing the issue, refers to the Black’s definition of sex as “the sum of the peculiarities of structure and function that distinguish a male from a female organism.”2 Sexual orientation, on the other hand, is defined as “a person’s predisposition or inclination toward a particular type of sexual activity or behavior.”3 The difference between the two terms is clear: the use of the term in the Title VII refers to discrimination that an employee may receive on the basis of being either male or female, while sexual orientation is clearly excluded in the law. In other words, such interpretation is based on the meaning of the law in its original form.

    Deep Dive into Bostock v. Clayton's Legal Critique

         There have been major efforts to amend the law to include other forms of discrimination such as sexual orientation. A number of heated debates and arguments have impacted Supreme Court’s decisions, which have tried to ensure that employees are not discriminated on the basis of either sexual orientation or gender. For instance, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. ___ (2018) the Supreme Court made a declaration that homosexuals should not be discriminated or denied services on the grounds of sexual orientation. Likewise, the Supreme Court in Obergefell v. Hodges, 576 U.S. 644 (2015) affirmed that the right of same-sex couples to procure a marriage is protected under the U.S. Constitution. However, despite these Supreme Court decisions, the legislator is yet to enact a law prohibiting the discrimination of people in the workplace because of their sexual orientation.

         Finally, it is clear that any form of discrimination should be prohibited by law, including the LGBTQI community. However, despite our personal stance on this particular issue, the Supreme Court is yet to receive marching orders from Congress, through statute, to safeguard the rights gays or lesbians from discrimination in the workplace. Since John Austin defines the law as the command of the supreme that is based on obedience and adherence to rules, it is likely that this legal theorist would interpret the law in its original form and support the decision of the employers to fine individuals based on the grounds of their sexual orientations due to latter not being included in Title VII of the Civil Rights Act of 1964.


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    Bostock v. Clayton County, Georgia, 590 US _ (2020). 1618

    Dallas, Christopher. “The Plain Meaning of Sex: A Note on Bostock v. Clayton County, 55 UIC Law Review.” UIC Law Review 55, no. 2 (2022): 357-402.

    Fallon, Richard H. Jr. “The Statutory Interpretation Muddle.” Northwestern University Law

    Review 114, no. 2 (2019): 269-334.

    Hutton, Christopher. The Tyranny of Ordinary Meaning: Corbett v Corbett and the Invention of Legal Sex. Palgrave Macmillan, 2019.

    Mittal, Monarch. “John Austin’s Theory of Command Law: Its Practicality in Today’s World.” SSRN (2022): 1-7.

    U.S. Equal Employment Opportunity Commission. Title VII of the Civil Rights Act of 1964.

    The main question that arises is whether Title VII of the Civil Rights Act 1964 upholds employees against discrimination due to sexual orientation or gender identity.

    The U.S Supreme Court held that the applied Title VII of the 1964 Civil Rights Act also covers employees on grounds based upon sexual orientation and gender identity.

    A legal positivist such as John Austin held the view that judges’ role is to interpret and apply law in its face value according to a command by sovereign, without making new laws or injecting personal moral opinion.

    In the Bostock case, plain meaning rule would translate to defining “ sex” in Title VII using its ordinary connotation as at time of enactment which may raise various views whether sexual orientation is included within.

    This ruling does not change the fact that there is no explicit legislative protection because Congress has so far, failed to make an act of law against discrimination in work places on basis of one’s sexual orientation.

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