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105 Minn. L. Rev. Headnotes 1 (2020-2021)

handle is hein.journals/headnotpan105 and id is 1 raw text is: Essay Bostock, LGBT Discrimination, and the Subtractive Moves Andrew Koppelmant INTRODUCTION In Bostock v. Clayton County,1 the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination against lesbian, gay, bisexual, and transgender (LGBT) people. That was obviously correct. It is not possible to discriminate on these bases without treating a person worse be- cause of their sex. So why is it not obvious to everyone? The case for coverage is simple. What is complicated is the counterarguments, which come forth in baroque profusion. They must be answered. This is, evidently, a neverending task.2 t John Paul Stevens Professor of Law and Professor (by courtesy) of Po- litical Science, Department of Philosophy Affiliated Faculty, Northwestern Uni- versity. Thanks to Larry Alexander, Bob Bennett, Samuel Bray, Charlotte Crane, Zachary Clopton, Michael Dorf, William Eskridge, Tonja Jacobi, Matt Kugler, Simon Lazarus, Steve Lubet, John McGinnis, Jim Pfander, Valerie Quinn, Brian Slocum, Steven D. Smith, and Matt Spitzer for helpful comments, and to Tom Gaylord for research assistance. Special thanks to the Minnesota LawReviewHeadnotes staff, especially Cat Ulrich and Zach Wright, for getting this piece online with astonishing speed. This paper expands upon one section of Brief of William N. Eskridge Jr. and Andrew M. Koppelman as Amici Curiae in Support of Employees, Bostock v. Clayton County, Ga., 140 S. Ct. 1731 (2020) (No. 17-1618), 2019 WL 2915046. I have a personal stake in this decision, hav- ing spent my entire academic career criticizing the subtractive moves that I anatomize in this paper. See Andrew Koppelman, Note, The Miscegenation Analogy: Sodomy Law as Sex Discrimination, 98 YALE L.J. 145, 150 n.30 (1988) (attacking early decisions refusing to apply Title VII to sexual orientation dis- crimination). Copyright © 2020 by Andrew Koppelman. 1. 140 S. Ct. 1731 (2020). 2. See, e.g., Brief of Amicus Curiae Stephen Clark et al., Obergefell v. Hodges, 135 S. Ct. 2584 (No. 14-556), 2015 WL 1048436; Brief of Amici Curiae William N. Eskridge Jr., et al., Hollingsworth v. Perry, 570 U.S. 693 (2013) (No. 12-144), 2013 WL 840011; ANDREW KOPPELMAN, ANTIDISCRIMINATION LAW AND SOCIAL EQUALITY 146-76 (1996); ANDREW KOPPELMAN, THE GAY RIGHTS 1

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