Faculty publication examines landmark Bostock ruling

John Towers RiceVisiting Assistant Professor John Towers Rice recently had his paper The Road to Bostock published by FIU Law Review. His publication examines the United States opinion in the landmark case Bostock v. Clayton County, Ga. In that case, the Supreme Court ruled 6-3 that the statutory prohibition against discrimination "because of sex" set forth in the Civil Rights Act of 1964 "extends to prohibit discrimination because of sexual orientation or gender identity or expression."

"This opinion solidified the analysis until Title VII for discrimination based on sexual orientation or gender identity. Whereas the conventional wisdom had been that one should root evidence of discrimination in a sex-based stereotype theory. Now, the mere fact that employment discrimination is motivated by sexual orientation or gender identity is actionable under Title VII. It builds upon the court's jurisprudence of the ‘right to dignity.' This, in and of itself, makes the opinion socially significant," Rice said.

The ruling has societal implications for millions of American workers and was a momentous milestone for several other reasons. Rice said, "This was the first time the Court has interpreted a statute to extend non-discrimination protection on the basis of sexual orientation and gender identity in the same way that such protections apply to different classes of people. It raises questions now of whether the Court will rule that these are protected classes under the Fourteenth Amendment to the US Constitution. The case also offers some clear guidance for statutory interpretation and rejects the idea of ‘secret law'.

The ruling is also notable because it did cross conceived ideological lines. Justice Gorsuch penned the opinion, joined by Chief Justice Roberts and the four liberal justices at the time. (The opinion was issued prior to the death of Justice Ginsburg and appointment of Justice Coney-Barrett.) "Justice Gorsuch said, ‘only the written word is the law, and all persons are entitled to its benefit.' That is a quote that all law makers and lawyers should hold close to their hearts," said Rice.

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