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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
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.


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