Bostock v. Clayton County, Georgia: Mock Dissent Opinion Model

A mock dissent is one of the more useful exercises in a first-year legal writing course, because it forces you to do something a case brief never does: disagree with a court, in the court’s own form, using only the tools a judge is allowed to use. You do not get to say the result is unfair. You have to show that the law, properly read, points the other way.

The case assigned here is Bostock v. Clayton County, 590 U.S. 644 (2020). Below is a model dissent written for that assignment, followed by a short section on how it is put together. The dissent takes a legal positivist line, drawing on John Austin, because the original assignment asked for an alternative view grounded in a theory of law. Everything about the case itself is taken from the published opinions; the argument is a student’s, not a Justice’s.

Bostock v. Clayton County Case Brief: Facts, Decision, and Holding

Gerald Bostock worked for Clayton County, Georgia, as a child welfare services coordinator. After he joined a gay recreational softball league, the county fired him, citing conduct unbecoming a county employee. He sued under Title VII of the Civil Rights Act of 1964, which makes it unlawful for an employer to discharge or otherwise discriminate against an individual “because of such individual’s race, color, religion, sex, or national origin.” The district court dismissed, and the Eleventh Circuit affirmed under its own precedent holding that Title VII does not reach sexual orientation.

The Supreme Court consolidated Bostock’s case with two others: Altitude Express, Inc. v. Zarda, in which a skydiving instructor said he was fired for being gay, and R.G. & G.R. Harris Funeral Homes v. EEOC, in which a funeral director was fired after telling her employer she was transgender. On June 15, 2020, the Court held 6 to 3 that all three discharges were discrimination because of sex. Justice Gorsuch wrote for the majority, joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan. The majority’s core move is simple: Title VII asks whether sex was a but-for cause of the adverse action, and an employer who fires a man for being attracted to men, while tolerating a woman attracted to men, has treated the employee differently because of his sex. Justice Alito dissented, joined by Justice Thomas. Justice Kavanaugh dissented separately.

That is the opinion the model below argues against.

Model Paper: A Mock Dissent Opinion in Bostock v. Clayton County, Georgia

Dissenting.

The question before the Court is narrow. It is not whether employers ought to be permitted to fire people for being gay or transgender. It is whether Congress, in 1964, prohibited that conduct when it forbade discrimination “because of sex.” The majority answers yes by reasoning from the structure of the statute’s causation language. I would answer no, because the text as the enacting Congress wrote and understood it does not reach the conduct at issue, and because the only body with authority to extend it has repeatedly declined to do so. I respectfully dissent.

I. The text and its ordinary meaning in 1964

Title VII lists five protected characteristics: race, color, religion, sex, and national origin. The list is closed. Sexual orientation and gender identity do not appear on it, and nobody contends that they do. The majority’s path around that silence is to say that discrimination on those grounds necessarily involves discrimination because of sex, since the employer must take account of the employee’s sex to apply the policy at all.

The difficulty is that this reads “sex” as a logical operator rather than as a word with a settled public meaning. In 1964 the ordinary meaning of sex, in dictionaries, in statutes, and in everyday speech, referred to the status of being male or female. Sexual orientation was a distinct concept with its own vocabulary, and gender identity as a term of art did not yet exist in general use. A statute’s words carry the meaning an ordinary reader would have given them when the law was passed. By that measure, an employer who treats gay men and lesbians alike, and treats transgender employees alike regardless of the sex assigned at birth, has adopted a policy that is indifferent to sex in the sense the statute uses the word, however objectionable the policy may be on other grounds.

The majority’s response is that the statute speaks of individuals, not groups, and that comparing the treatment of a man attracted to men with that of a woman attracted to men shows sex at work. But every discrimination claim requires a comparator, and the choice of comparator decides the case. Change the comparison to a woman attracted to women and the sex-based difference disappears. The statute does not tell us which comparator to choose; the majority’s reading supplies the answer by assumption.

II. What a positivist account of law requires of this Court

John Austin described law as the command of a sovereign, backed by a sanction, and he insisted that the validity of a law turns on its source rather than on its merits. In a constitutional republic the sovereign is the people, who delegate lawmaking to Congress and confine courts to applying what Congress has enacted. On that account the judge’s duty is to identify the command actually given, not the command the judge believes a wiser sovereign would have issued.

That framework matters here because the majority’s method, however elegant, produces a rule the enacting sovereign did not issue. The members of the 88th Congress who added “sex” to the bill, and the public that received the statute, would not have recognized a prohibition on discharging an employee for homosexuality as part of what they had commanded. A reading that no contemporaneous reader would have recognized is not an interpretation of the command; it is a new command, and this Court lacks the authority to issue one.

The point is not that statutes are frozen to the applications their drafters foresaw. A law against “vehicles in the park” reaches a vehicle invented after enactment, because the new vehicle falls within the ordinary meaning of the word. The question is whether the new application falls within the meaning the words carried, and on that question sexual orientation and sex are different things, as the plaintiffs’ own briefing acknowledged when it described them as distinct traits.

III. Precedent and the gap Congress has left open

The majority is right that this Court has read Title VII to reach conduct its drafters may not have anticipated, including sexual harassment between members of the same sex and sex stereotyping. Those cases, however, involved treatment that turned on the employee’s being male or female. They do not establish that any policy touching sexual conduct is a policy about sex.

Meanwhile the political branches have been active on exactly this subject. Bills that would add sexual orientation and gender identity to federal antidiscrimination law have been introduced in Congress for decades and have not passed. Many states and localities have enacted such protections through their own legislatures. That record tells us two things: the people’s representatives have understood Title VII not to contain the protection the majority finds in it today, and they know how to add it when they choose. The Court’s decisions in Obergefell v. Hodges on marriage and in Masterpiece Cakeshop on the limits of state civil rights enforcement did not purport to amend Title VII, and nothing in them authorizes this Court to do so now.

IV. Consequences of the majority’s method

A reading of “sex” that reaches sexual orientation and gender identity will not stay confined to employment discharges. The same word appears in Title IX, in housing law, and in provisions governing sex-separated facilities, athletics, and religious employers, and the majority offers no principle for stopping its logic at the edge of this case. Those questions deserve answers from the body that can weigh competing interests, hold hearings, and write exceptions. A court can only decide the case before it, and in doing so today it has decided a great deal more without saying so.

V. Disposition

Gerald Bostock’s claim, and the claims of Mr. Zarda and Ms. Stephens, present a genuine injustice that the law as written does not remedy. The remedy lies with Congress, which can amend Title VII tomorrow, and with the many states that already have. I would affirm the judgment of the Eleventh Circuit in Bostock, reverse the Second Circuit in Zarda, and reverse the Sixth Circuit in Harris Funeral Homes. Because the Court instead rewrites the statute, I respectfully dissent.

How a Bostock Dissenting Opinion Is Built

Students searching for a Bostock v. Clayton County dissenting opinion usually want to see how the argument is organized, not just what it says. The model follows the skeleton real dissents use, and you can lift the skeleton for any case.

Part	What it does in the model
Framing paragraph	Narrows the question to statutory meaning and separates it from the policy question. This is where the dissent wins or loses, because it decides what counts as a good argument.
Text and ordinary meaning	States the majority’s reading fairly, then attacks the comparator move. Note that the attack is on method, not on motive.
Theory of law	Austin’s command theory explains why the dissenter refuses to update the statute. The theory supports the textual argument; it does not replace it.
Precedent and legislative record	Acknowledges the cases that cut the other way and distinguishes them. Points to failed bills as evidence of shared understanding.
Consequences	Shows the rule will not stay put. Real dissents almost always include this section.
Disposition	Names the remedy (Congress) and the order the dissenter would enter in each consolidated case.

Three craft points. First, the model never says the result is wrong because the writer dislikes it, and it concedes in the last paragraph that the outcome for the plaintiffs is unjust. Conceding what you must concede is a sign of strength in judicial writing. Second, it avoids quoting the real opinions, because a mock dissent is an exercise in your own reasoning; if your assignment asks for quotations, pull them from the published text and cite the page. Third, each section ends by returning to the question in the framing paragraph, so the reader is never unsure what the dissent is for.

If you have not written in this form before, start with the case brief. My walkthrough of United States v. Hansen shows how to extract facts, issue, holding, and reasoning from a long appellate opinion, and the general method is in the guide to how to write a legal case brief. Brief the Bostock majority first; a dissent you write without a clean brief of the opinion you are answering will drift. For the citation form, including the parallel citations for the consolidated cases, the Chicago style citation guide covers the footnote format most legal writing seminars accept outside Bluebook.

Using the Mock Dissent Model Honestly

Read it, mark where each move happens, and then close the page. Your own dissent should pick its own lens. Austin is one option; a purposivist dissent, an originalist dissent, or one built on the canon against surplusage would each produce a different paper from the same facts. The assignment is testing whether you can reason inside a judicial form, and the only way to show that is to do the reasoning yourself.