Since the 1969 Stonewall Riots, June has been revered as a month of revolution for LGBTQ* (2) rights. (3) In 2000, President Bill Clinton officially declared June as Gay and Lesbian Pride Month, and, in 2011, President Barack Obama expanded the observance of pride to include transgender and bisexual identities. (4) June's spark struck again when the Supreme Court upheld same-sex couples' right to marriage in their 2015 Obergefell v. Hodges decision. (5) June was recently an important time for the LGBTQ* community in 2020. On June 15 of that year, the Supreme Court decided Bostock v. Clayton County, (6) which asked whether Title VII of the Civil Rights Act of 1964 (Title VII) (7) prohibited employment discrimination based on one's sexual orientation and/or gender identity. (8) In a 6-3 opinion, the Court said yes. (9)
Upon hearing the Bostock decision, the LGBTQ* community audibly sighed in relief. Decades of fighting to express their sexual orientation and gender identity in the workplace without fear had finally culminated in Bostock. (10) Duke Law Professor Trina Jones succinctly described the decision's impact: "The decision increases the possibility that the more than 8 million members of the LGBT[Q*] community will be treated with the dignity and respect that people deserve in every aspect of life, and especially when they are simply trying to earn a living." (11) Nevertheless, a question lingered in the silence that followed: was this really the end of employment discrimination for the LGBTQ* community?
Title VII forbids employers from discriminating against employees "on the basis of race, color, religion, sex, or national origin." (12) Despite Title VII's prohibition on discrimination based on "sex," until Bostock, courts had not yet consistently expanded "sex" to include LBGTQ* status as a protected class. In fact, until Bostock, even the Court's most expansive readings of "sex" never explicitly included transgender and gender nonconforming people. (13) The Equal Employment Opportunity Commission...