By Joshua Kipps
In Bostock v. Clayton County, the Supreme Court ushered in a new era of employment law by holding that workplace discrimination against gay and transgender people violates Title VII’s prohibition of discrimination because of sex. The Court reached this historic result by using textualism to interpret Title VII and applying a simple “but-for” test. By focusing on individuals and stripping away linguistic labels, the Court created a brightline rule for future courts: if changing an employee’s sex changes the employer’s discriminatory decision, then the decision was because of sex. While this decision modernized discrimination doctrine to the benefit of millions of LGBTQ+ Americans, it did not address whether its protections would extend to two groups: bisexual and nonbinary people. The decision also expressly left open whether it would prohibit sex-based dress codes and bathroom policies.
This Note argues that Bostock’s reasoning does not necessarily extend protections to bisexual and nonbinary people in every case. The decision does, however, render workplace enforcement of sex-based dress codes and bathrooms impermissible sex discrimination. This Note first explains the state of pre-Bostock Title VII jurisprudence and the Bostock decision, then analyzes Bear Creek, a Northern District of Texas court’s failed attempt to answer Bostock’s open questions. Finally, to remedy the implications of Bostock’s limitations and Bear Creek’s errors, this Note analyzes how bisexual and nonbinary individuals can structure their sex discrimination arguments to win in court.