Law Commons^™

Bostock And Textualism: A Response To Berman And Krishnamurthi, Andrew Koppelman

Notre Dame Law Review Reflection

The Bostock Court adopted an argument I’ve been making for years, and that I pressed upon it in an amicus brief: that discrimina-tion against gay people is necessarily sex discrimination. I defended Justice Neil Gorsuch’s opinion for the Court in my article, Bostock, LGBT Discrimination, and the Subtractive Moves, which catalogues various common but unsuccessful strategies for evading the force of the sex discrimination argument. That piece, originally drafted before the Supreme Court’s decision as a critique of arguments by Court of Appeals judges, was easy to revise and update. The dissenters, Justices Samuel Alito (joined by Clarence …