Bostock v. Clayton County

Okay, sorry, I keep...

We're doing Bostock versus Clayton County, Georgia today, [laughs] and guess what? Guess what? We're gonna have a great time, because guess what? We're, we're finishing Bostock versus Clayton County, Georgia today.

Can you believe it? We started last summer.

A- and, uh, the last episode we did was back in Ju- July 19th.

It wasn't, it wasn't here.

It was, but it was July 19th.

And, um, [clears throat] that was the 12th episode of Bostock.

[laughs] Jeez.

That of course happens when judges substitute their preferences for what the law actually says.

Sometimes more clever judges smuggle in their preferences in the clothes of originalism or textualism, as Justice Neil Gorsuch did with his famous Bostock v. Clayton County decision, which I also wrote about in my most recent book, False Flag, and I've written about that at The Federalist as well.

In that 5-4 decision, Gorsuch's majority opinion spends pages and pages doing linguistic whirligigs, as the dissents point out, to try to defend his ludicrous claim that the word sex includes the concept of gender identity, a concept that did not exist at the time that the underlying law was enacted, and which not even the most extreme leftists have ever thought was already inside all of America's anti-discrimination laws.

Gorsuch just legislated from the bench in that decision while pretending he was doing the opposite.

and in health-related contexts as well.

The question for us is how far might the court go? Previously, just a few years ago, Justice Gorsuch makes clear in Bostock versus Clayton County that you can't discriminate on the basis of LGBTQ status and employment settings.

But will this court, literally with this decision, reassess the Bostic holding? Oh, that's what was on the table.

How far will this go? Because oral arguments gave us pretty clear since U.S.

This is a dark sort of outcome here, though, because of just, again, what we're talking about here, blanket patent discrimination against transgender persons based on simply who they are and what they're attempting to do.

Now, how far this went was going to be the real question.

Did it go so far as to overrule Boston versus Clayton County, which provided Gosh, protections against this type of discrimination in employment settings.

Why not in sports? Well, the court did make clear in Justice Gorsuch and a concurring opinion clarifies too.

And they sent the school district a letter on September 15th demanding that it grant the parents some religious accommodations, right? Like for the ability of the children to opt out of any class taught by the transgender teacher, that no student's going to be disciplined for using his actual real pronouns, right, the male pronouns for the male teacher, and that the gender identity and sexuality would not be discussed in advance in the classroom without parental notice, and that parents should be able to opt their students out of those kinds of discussions.

So getting into the kind of the legal analysis in the demand letter, it opens by saying that the parents, and this is a very important distinction, that the parents are not challenging the teacher's hiring and they're not asking the teacher get fired by the school district, right? They discussed the Bostock versus Clayton County case where the Supreme Court discussed and analyzed Title VII, right? The federal law banning employment discrimination, right? And the holding was that it does protect transgender employees, or one of the holdings that was mentioned.

And the letter from Thomas More Society concedes this and that the school had to follow that law in hiring.

But they do make an important distinction that Bostock governs how the school treats its employees.

Now, what the parents are objecting to are trying not to discuss the teacher's private life in the classroom.

So this isn't about how the school treats the teacher.

This is what it gets you.

This is sort of another Bostock moment is how you frame it.

Because after Bostock, there was some soul searching.

Senator Hawley had the famous speech now, at least famous to us, of like, if this is what you get, if If a statute written in the 1960s can retroactively include inside the definition of sex all manner of absurdities we've since developed, then what are we doing? And all this effort, decades and decades of effort to make this the test really for conservative judges, all presidents sort of enacting using the Federalist Society handbook to screen judges.

If this is what you get – so talk to me about that framing because I think it's very useful of how – I think you say it's like this is like the bookend.

This is like the bookend to this several years now of like questioning things.

This should kind of take it to the next level.

Yeah, effectively, Barbara finishes what Bostock started.

Who Title VII reaches and the 15-employee threshold that triggers it.

Disparate Treatment vs. Disparate Impact Explained in Plain English How the EEOC Investigates, Conciliates, and Sues to Enforce the Law Why Bostock 2020 Extended Coverage to LGBTQ Plus Workers Nationwide What Schools, Parents, and Children Gain from Fair Hiring Practices Passed at the height of the civil rights movement, this single statute rewired American work and life, reaching hiring, firing, training, promotion, pay and benefits across private companies, government agencies, unions, and schools.

It outlawed harassment and retaliation, gave victims back pay, reinstatement, attorney's fees and damages, and became the template for the ADEA, the ADA, and GINA.

Its reach keeps growing through amendments, EEOC guidance, and Supreme Court rulings.

The letter cites three major Supreme Court cases dealing with these contentious issues.

It cites Bostock v. Clayton County, 2020, in which the Supreme Court determined that the employers may not fire staff over their gender identity or sexual orientation because such an act would violate Title VII of the Civil Rights Act of 1964, which bars firing on the basis of sex.

The letter also cites Mahmoud v. Taylor, 2025, in which the Supreme Court upheld parents' right to opt their kids out of instruction regarding the LGBTQ materials and instruction.

The court determined that such instruction burdens the religious exercise of parents because it requires them to submit their children to instruction that poses a very real threat of undermining the religious beliefs and practices that the parents wish to instill, unquote.