Before Bostock: The Accidental LGBTQ Precedent of Price Waterhouse v. Hopkins, Jason Pierceson

Reviewed by Kyle C. Velte

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on sex but does not include sexual orientation or gender identity (SOGI). Nonetheless, LGBTQ employees began bringing lawsuits shortly after its enactment, arguing that SOGI discrimination was a manner of sex discrimination. In 2020, over five decades after Title VII's passage, the U.S. Supreme Court agreed, holding in Bostock v. Clayton County that the statute's prohibition of sex discrimination by its plain language also prohibits SOGI discrimination.

Bostock's pro-LGBTQ holding surprised many who had expected the conservative-majority Court to reject the plaintiffs’ attempt to write SOGI into a statute that includes only sex. That conservative Justice Neil Gorsuch wrote the decision and used the statutory interpretation method of textualism—associated with conservative legal thought and anti-equality outcomes—compounded the surprise. In Before Bostock: The Accidental LGBTQ Precedent of Price Waterhouse v. Hopkins, Jason Pierceson explains why Bostock should not have been a surprise after all.

The book centers on the 1989 case of Price Waterhouse v. Hopkins, in which a heterosexual, cisgender woman sued her employer when it passed her over for partnership for comporting herself in ways decision-makers deemed t

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