Before Bostock

In 2020, the U.S. Supreme Court issued a six-to-three decision declaring that lgbtq people were protected under Title VII of the Civil Rights Act, which prohibits discrimination in employment based on “sex” (Bostock v. Clayton County). The decision shocked many legal commentators not only because it represented a dramatic expansion of lgbtq rights but also because it was authored by conservative Justice Neil Gorsuch and joined by Justice John Roberts, both of whom had been skeptical of lgbtq rights previously. Before Bostock explains this surprising decision by conducting a historical and legal analysis of Title VII jurisprudence in the area of lgbtq rights. This book, which is one of the first to examine the case law in this area, should be required reading for anyone who wants to know more about these efforts. Though lgbtq activists have only recently had success with this strategy, Pierceson’s analysis shows that activists have been making the argument that Title VII’s prohibition of sex discrimination is broad enough to have encompassed discrimination based on sexual orientation and gender identity since at least the 1960s. Pierceson also pays particular attention to the transgender rights movement throughout the book (especially in Chapter 4), another area that has not received much attention from scholars.Pierceson concludes that Price Waterhouse v. Hopkins (1989), an employment-discrimination case brought by a straight, cisgendered white woman, was crucial to the development of this legal strategy. The case introduced the concept of “sex stereotyping,” which holds that women who adopt more masculine mannerisms tend to be viewed more harshly by their peers, even though such qualities are rewarded when exhibited by male employees. This case, along with Oncale v. Sundowner Offshore Services, Inc. (1997), created the legal precedent for an expansive view of Title VII’s prohibitions against sex discrimination, opening the door for its application to lgbtq individuals.Pierceson is clearly more interested in telling a compelling narrative of these cases than in engaging in well-worn scholarly debates. Indeed, the strengths of the book are its clarity and its relative freedom from academic jargon. But readers who are looking for an innovative use of interdisciplinary research methods will probably be disappointed by this offering. Pierceson does not include a methods section in the book, spends no time outlining his research design, and does not say why his chosen methods are well suited to answering the questions at hand, leaving readers to speculate about the answers.That said, the book effectively combines insights from the fields of law and history—a much-needed counter to the traditional legal-formalist conception of the court as a closed system, immune from larger socio-historical trends. According to the legal-formalist model, judges are neutral referees who evaluate legal cases based on their merits to render objective decisions supported by reason and logic alone. One of the biggest contributions that historians and social scientists have made to the study of law is to complicate this image by exploring how events outside of the courtroom shape judicial decisions. Pierceson’s offering is yet another reminder that law is shaped more by social-movement dynamics and socio-cultural changes than by anything that happens inside courtrooms.The main concern about the book is that Pierceson does not take his analysis far enough at times. Acknowledging that “the Court is not always focused on technical matters of law when it decides a prominent case” (159), he observes that the justices’ initial hesitancy to include transgender individuals under Title VII because “the bathroom issue” was “more reflective of cultural and political biases” than legal analysis (159). Indeed, the fact that Gorsuch’s majority opinion in Bostock never actually endorsed the sex-stereotyping argument in Price Waterhouse may well raise doubt about the case’s relevance (161). Yet, Pierceson covers a good number of judicial precedents that by his own account had minimal bearing on the outcome of the case. His time might well have been better spent in an analysis of the social, political, and culture pressures that likely inclined conservatives like Gorsuch and Roberts to reconsider their past objections to lgbtq rights claims

Accidental · Physics · Political science · Law · Law, Rights, and Freedoms · Legal and Constitutional Studies · Legal Systems and Judicial Processes