Foreword

This symposium about the future of legal pedagogy could not be more timely. Its four thought-provoking papers raise a constellation of questions about how law schools educate lawyers and toward what purposes. These papers describe and assess the impact of the shifting demographics of law students and faculty and the variety of life experiences these students and teachers bring with them to law school. They highlight different approaches to pedagogy and how those approaches can better train students for effective and humane advocacy. They argue for the need to historicize and contextualize the law in order to understand its power, its impact on people, and how it operates in the world.

At their core, these essays grapple with the question—still ongoing many years after women and people of color began attending law schools in significant numbers—of how institutions adapt when the people who inhabit them change. According to the American Bar Association, in the fall of 2021, women made up more than 56% of first-year law students. One in three entering law students are students of color.1.Statistics: ABA Required Disclosures, A.B.A., https://www.americanbar.org/groups/‌legal_‌education/‌resources/statistics/ [https://perma.cc/UDF8-P4LP] (last visited Feb. 14, 2022) (download spreadsheet titled “2021 1L Enrollment by Gender & Race/Ethnicity”).Show More Law students are LGBTQ+ and veterans, first-generation and low-income. They are students with disabilities and students from all over the world. Unsurprisingly, they arrive at law school with a far wider array of personal experiences than ever before.

So too do the faculty who teach these students. Drawn largely from the ranks of these increasingly diverse law graduates, faculty are also more diverse—although still far less so than the student population.2.In 2011, 40% of full-time law faculty were women and 17% were minorities; in 2021, 46% of full-time law faculty were women and 22% were minorities. Compare 509 Required Disclosures, A.B.A., https://www.abarequireddisclosures.org/‌Disclosure‌509.aspx [https://‌perma.cc/T75B-ACSQ] (last visited Feb. 16, 2022) (select “2021” and “Faculty Resources” under “Compilation – All Schools Data” to generate report), with id. (select “2011” and “Faculty and Administrators” under “Compilation – All Schools Data” to generate report); see also Justin McCrary, Joy Milligan & James Phillips, The Ph.D. Rises in American Law Schools, 1960–2011: What Does It Mean for Legal Education?, 65 Legal Educ. 543, 549 (2016).Show More As law schools become more diverse, legal pedagogy has begun, in fits and starts, with more and less intentionality, to adjust.

Identifying, commenting on, and exploring the effects of these demographic changes on legal pedagogy, the essays in this symposium offer nuanced and complex approaches to a series of inherently nuanced and complex questions. To take one: Has the moment—the nearly century and a half moment—of the Socratic method now passed? The jury, as they say, remains out. What is clear is that we are asking new and harder questions of this classic law school teaching method. Does it silence or alienate some students, often women and people of color, more than others? Does it overemphasize judicial opinions to the exclusion of a fuller understanding of how cases come to be, the other actors involved in their development, and the very human problems out of which they arise and on which they exercise coercive power? Does it reinforce existing hierarchies and fail to rectify disparities deeply entrenched in societal structures?

Molly Shadel, Sophie Trawalter, and Rip Verkerke approach these questions empirically, leveraging quantitative methods to examine gender disparity in classroom participation.3.Molly Bishop Shadel, Sophie Trawalter & J.H. Verkerke, Gender Differences in Law School Classroom Participation: The Key Role of Social Context, 108 Va. L. Rev. Online 30 (2022).Show More By combining the coding of classroom participation with longitudinal and survey studies, the authors document such gender disparity, provide insights about why it exists, and suggest possible ways to remedy it. Molly Shadel and Anne Coughlin develop these empirical insights into a compelling critique of the modern Socratic Case Method, highlighting how it fails to escape its history of hierarchy and sexism.4.Anne M. Coughlin & Molly Bishop Shadel, The Gender Participation Gap and the Politics of Pedagogy, 108 Va. L. Rev. Online 55 (2022).Show More Going forward, they argue, law schools must foster collaboration, encourage listening, and empower diverse perspectives so as to better prepare students for the challenges and opportunities of legal practice.

If the first two papers take aim at the method of pedagogical inquiry, the latter two focus on the substance of what law schools teach. Sherri Lee Keene and Susan A. McMahon suggest moving beyond a curriculum focused on judicial opinions.5.Sherri Lee Keene & Susan A. McMahon, The Contextual Case Method: Moving Beyond Opinions to Spark Students’ Legal Imaginations, 108 Va. L. Rev. Online 72 (2022).Show More Such opinions, they argue, systematically dehumanize tragedy, ignore non-legal drivers of legal outcomes, suggest certainty in a complex world, frequently privilege unrepresentative speakers, and foreclose the imagination of transformational, systemic change. The authors advocate instead contextualizing opinions within the human experience, presenting them alongside competing and often overlooked perspectives, and viewing them as one facet of a broader legal framework in need of radical reimagination. Similarly, Paula A. Monopoli argues that feminist legal theory and history are essential reading for law students, particularly in core curricula relating to constitutional development.6.Paula A. Monopoli, Feminist Legal History and Legal Pedagogy, 108 Va. L. Rev. Online 91 (2022).Show More Invoking historical examples, Monopoli views the vital role that women advocates have played in creating constitutional and social change as empowering law students to become more effective advocates today.

As these brief descriptions suggest, these essays not only engage with the major demographic shifts law schools have experienced over the past half century. They also reflect, in more and less direct ways, other changes that have substantially transformed legal pedagogy over the same general period—changes that make this moment a particularly fertile one for legal education.7.One important trend beyond the scope of this Foreword is the penetration of technology into every aspect of life and law, which has had, and will continue to have, profound effects on both what we teach and how we teach it. The speed of communication, the explosion in the production of information, and the complexity of technological systems require law schools to educate students more extensively and with more specialized knowledge about technology. See generally Michele Pistone, Law Schools and Technology: Where We Are and Where We Are Heading, 64 J. Legal Educ. 586, 586 (2015) (arguing that “technology offers the attractive possibility of making legal education both more efficient and more effective”). Technology has also altered how we learn, teach, and collaborate. See, e.g., Kennedy M. Maranga, The Role and Impact of Technology in Legal Education (June 9, 2010) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520831 [https://perma.cc/WT9F-HGRQ] (suggesting that technology has changed both the classroom and legal practice). The ongoing COVID-19 pandemic has both accelerated the use of online teaching of various forms and reinforced for many the continued importance of in-person teaching and intellectual exchange. See, e.g., Morenike Saula, Crisis-Induced Innovation in U.S. Legal Education, 69 J. Legal Educ. 679 (2020).Show More Two such trends are especially relevant to this symposium and to the direction in which these essays both see legal pedagogy heading and view as salutary, if not necessary.

First, alongside the demographic shifts that have taken place among law faculty is a methodological one. As recently as 2000, most law professors were trained exclusively in law, and they came to law teaching after judicial clerkships and brief stints in legal practice.8.McCrary et al., supra note 2, at 553 (“As for credentials, in 2000 ‘the prototypical new law teacher graduated from an elite school (most often from Harvard or Yale), was on the staff of the law review or another journal while in law school, clerked for a judge (usually a federal judge), published one or two articles or notes (though many published nothing at all), and practiced for several years (usually in a law firm or a corporate counsel’s office) before entering academia.’”) (quoting Richard E. Redding, Where Did You Go to Law School? Gatekeeping for the Professoriate and Its Implications for Legal Education, 53 J. Legal Educ. 594, 596 (2003)).Show More Historically, law schools were more closely connected both intellectually and institutionally to the legal profession and the practice of law than to the rest of the university. In recent decades, however, more and more law professors have engaged in formal doctoral training in complementary cognate fields alongside their law degrees—economics, psychology, politics, history, philosophy, literature, and more.9.Id. (noting that 28% of law professors at the top thirty-four law schools hold Ph.Ds, compared to 5% of all law professors in 1989); see also Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 J. Legal Educ. 506, 507 (2016) (“[T]he overall trend is unmistakable. Ph.D. hiring is increasing rapidly.”).Show More As a result of this increased interdisciplinarity—and despite some criticism by legal practitioners—law schools and legal scholarship have moved closer intellectually to the universities of which they are a part.10 10.Kim Diana Connolly, Elucidating the Elephant: Interdisciplinary Law School Classes, 11 Wash. U. J.L. & Pol’y 11, 19–20 (2003). A full reply to such criticism is beyond the scope of this brief Foreword.Show More

Both what and how we teach have changed as a result. The law school curriculum has unsurprisingly become more interdisciplinary, offering more courses in critical theories, the humanities, and the social sciences. At UVA Law School, and I am sure at other schools as well, small seminars have displaced a substantial portion of large Socratic lecture courses in the law school curriculum, and students learn the disciplinary approaches of multiple methodologies alongside the analytical reasoning of blackletter fundamentals. The result is a legal education attuned not only to the logic of the law but also to the big picture within which that logic operates.

Second, even as law schools have expanded the curriculum into new theoretical horizons, we have also begun to offer far more practical training than ever before. Law schools have long described their core pedagogical mission as training students to “think like a lawyer”—how to problem solve through analytical reasoning. Learning the nuts and bolts of legal practice was left largely to summer and post-graduation employers.11 11.Peter A. Joy, The Uneasy History of Experiential Education in U.S. Law Schools, 122 Dickinson L. Rev. 551, 574 (2018); see also Daniel Thies, Rethinking Legal Education in Hard Times: The Recession, Practical Legal Education, and the New Job Market, 59 J. Legal Educ. 598, 599 (2010) ([T]he recession “put a premium on job candidates with practical skills, those on whom [legal employers] will not have to spend time and money before they are ready to practice.”).Show More

That is no longer the case. Clinical and experiential education had grown in law schools even before the Great Recession of 2008, but their growth accelerated in its wake. Partially due to the market pressures facing law firms in the succeeding years, the American Bar Association (and some prominent state bars) established new experiential course requirements for law students. This shifted practice-oriented training from law firms to law schools.12 12.Joy, supra note 11, at 576–80.Show More Law schools have since embraced and proliferated numerous types of experiential education. Clinical education in particular has grown dramatically from its origins as student adjuncts to a local legal aid into its own major branch of legal education. This increase in clinical and experiential education leads not only to greater fluency with the practice of law but also greater understanding of the human dimension for which several of the essays in this symposium call.

The combined effect of the interdisciplinary turn and the expansion of practical training is a law school curriculum with three approaches to law teaching—analytical reasoning, interdisciplinary perspectives, and practical training—each distinct in goal, method, and subject matter. Here at the University of Virginia School of Law, for example, our curriculum is now roughly evenly split between lecture courses, experiential courses, and small seminars.13 13.See University of Virginia School of Law, Courses, https://www.law.virginia.edu/courses [https://perma.cc/2L28-QYBX] (last visited Feb. 14, 2022).Show More The Socratic method still dominates much of the first-year curriculum and our imagination about legal pedagogy. But it has ceded its monopoly over legal education as it now exists. This is hardly Langdell’s law school any longer.

This is all to the good, for many of the reasons the essays in this symposium suggest. At the end of the day, as I tell my students frequently, practicing law is not just a job. It is not just about private gain or personal glory. Those privileged to access the knowledge and license to practice law hold a public trust, a responsibility to fulfill public obligations. As members of a “learned profession,” lawyers “profess” to uphold and promote the rule of law, democracy, and justice and to promote the public good.

That means, and has long meant, that law schools are in the business of training leaders and public servants. Today, that training is both more important and more challenging than ever, in light of widespread social crises, polarization, and political uncertainty. The developments in legal education the essays in this symposium discuss, and those I have briefly sketched, help prepare law students to lead and serve in this challenging moment. This three-pronged approach to legal education helps aspiring and diverse lawyers learn to respect opposing views, listen with empathy, and speak with respect. It makes advocates and counselors of our students, teaches them to take seriously their own humanity and the humanity of others, and inculcates in them the civic obligations they incur by virtue of their legal educations.

It is unsurprising that law schools have changed as our political, moral, and economic cultures have changed. It is equally unsurprising that these changes would affect who we teach, who does that teaching, what we teach, and how we teach it. In engaging with these changes, the essays in this symposium prompt us to ask how law schools can, and why they should, continue to live up to the lofty and critically important aspirations of our profession. As these and other changes remain very much in motion, this symposium locates us in our particular historical moment and prompts us to envision how we will continue to pursue our mission into the future.

  1. * Dean, Arnold H. Leon Professor of Law and Professor of History. The Author would like to thank Christopher Benos for excellent research assistance, as well as Grace Cleveland and Rich Schragger.

  2. Statistics: ABA Required Disclosures, A.B.A., https://www.americanbar.org/groups/‌legal_‌education/‌resources/statistics/ [https://perma.cc/UDF8-P4LP] (last visited Feb. 14, 2022) (download spreadsheet titled “2021 1L Enrollment by Gender & Race/Ethnicity”).

  3. In 2011, 40% of full-time law faculty were women and 17% were minorities; in 2021, 46% of full-time law faculty were women and 22% were minorities. Compare 509 Required Disclosures, A.B.A., https://www.abarequireddisclosures.org/‌Disclosure‌509.aspx [https://‌perma.cc/T75B-ACSQ] (last visited Feb. 16, 2022) (select “2021” and “Faculty Resources” under “Compilation – All Schools Data” to generate report), with id. (select “2011” and “Faculty and Administrators” under “Compilation – All Schools Data” to generate report); see also Justin McCrary, Joy Milligan & James Phillips, The Ph.D. Rises in American Law Schools, 1960–2011: What Does It Mean for Legal Education?, 65 Legal Educ. 543, 549 (2016).

  4. Molly Bishop Shadel, Sophie Trawalter & J.H. Verkerke, Gender Differences in Law School Classroom Participation: The Key Role of Social Context, 108 Va. L. Rev. Online 30 (2022).

  5. Anne M. Coughlin & Molly Bishop Shadel, The Gender Participation Gap and the Politics of Pedagogy, 108 Va. L. Rev. Online 55 (2022).

  6. Sherri Lee Keene & Susan A. McMahon, The Contextual Case Method: Moving Beyond Opinions to Spark Students’ Legal Imaginations, 108 Va. L. Rev. Online 72 (2022).

  7. Paula A. Monopoli, Feminist Legal History and Legal Pedagogy, 108 Va. L. Rev. Online 91 (2022).

  8. One important trend beyond the scope of this Foreword is the penetration of technology into every aspect of life and law, which has had, and will continue to have, profound effects on both what we teach and how we teach it. The speed of communication, the explosion in the production of information, and the complexity of technological systems require law schools to educate students more extensively and with more specialized knowledge about technology. See generally Michele Pistone, Law Schools and Technology: Where We Are and Where We Are Heading, 64 J. Legal Educ. 586, 586 (2015) (arguing that “technology offers the attractive possibility of making legal education both more efficient and more effective”). Technology has also altered how we learn, teach, and collaborate. See, e.g., Kennedy M. Maranga, The Role and Impact of Technology in Legal Education (June 9, 2010) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1520831 [https://perma.cc/WT9F-HGRQ] (suggesting that technology has changed both the classroom and legal practice). The ongoing COVID-19 pandemic has both accelerated the use of online teaching of various forms and reinforced for many the continued importance of in-person teaching and intellectual exchange. See, e.g., Morenike Saula, Crisis-Induced Innovation in U.S. Legal Education, 69 J. Legal Educ. 679 (2020).

  9. McCrary et al., supra note 2, at 553 (“As for credentials, in 2000 ‘the prototypical new law teacher graduated from an elite school (most often from Harvard or Yale), was on the staff of the law review or another journal while in law school, clerked for a judge (usually a federal judge), published one or two articles or notes (though many published nothing at all), and practiced for several years (usually in a law firm or a corporate counsel’s office) before entering academia.’”) (quoting Richard E. Redding, Where Did You Go to Law School? Gatekeeping for the Professoriate and Its Implications for Legal Education, 53 J. Legal Educ. 594, 596 (2003)).

  10. Id. (noting that 28% of law professors at the top thirty-four law schools hold Ph.Ds, compared to 5% of all law professors in 1989); see also Lynn M. LoPucki, Dawn of the Discipline-Based Law Faculty, 65 J. Legal Educ. 506, 507 (2016) (“[T]he overall trend is unmistakable. Ph.D. hiring is increasing rapidly.”).

  11. Kim Diana Connolly, Elucidating the Elephant: Interdisciplinary Law School Classes, 11 Wash. U. J.L. & Pol’y 11, 19–20 (2003). A full reply to such criticism is beyond the scope of this brief Foreword.

  12. Peter A. Joy, The Uneasy History of Experiential Education in U.S. Law Schools, 122 Dickinson L. Rev. 551, 574 (2018); see also Daniel Thies, Rethinking Legal Education in Hard Times: The Recession, Practical Legal Education, and the New Job Market, 59 J. Legal Educ. 598, 599 (2010) ([T]he recession “put a premium on job candidates with practical skills, those on whom [legal employers] will not have to spend time and money before they are ready to practice.”).

  13. Joy, supra note 11, at 576–80.

  14. See University of Virginia School of Law, Courses, https://www.law.virginia.edu/courses [https://perma.cc/2L28-QYBX] (last visited Feb. 14, 2022).

Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law

Introduction

In the summer of 2020, the Supreme Court decided the blockbuster case Bostock v. Clayton County,1.140 S. Ct. 1731 (2020).Show More holding that Title VII prohibits employment discrimination on grounds of sexual orientation and gender identity.2.Id. at 1737.Show More The opinion, authored by Justice Neil Gorsuch, claimed to base the result in textualism and the “simple” test of but-for causation.3.Id. at 1738–39 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346 (2013)).Show More The three dissenters, in opinions by Justices Samuel Alito and Brett Kavanaugh, took an opposing view that the statute did not cover discrimination based on the employee’s sexual orientation—but also claimed to ground their opinions in textualism.4.Id. at 1754–55 (Alito, J., dissenting); id. at 1823–25 (Kavanaugh, J., dissenting).Show More

This collection of conflicting opinions ignited a battle over the meaning of textualism and its relationship to conservative and liberal movements. Justice Alito wrote:

The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.5.Id. at 1755–56 (Alito, J., dissenting).Show More

Several conservative scholars followed this in tow. Josh Blackman and Randy Barnett labeled Justice Gorsuch’s opinion as “halfway textualism,”6.Josh Blackman & Randy Barnett, Justice Gorsuch’s Halfway Textualism Surprises and Disappoints in the Title VII Cases, Nat’l Rev. (June 26, 2020), https://www.nationalreview.com/2020/06/justice-gorsuch-title-vii-cases-half-way-textualism-surprises-disappoints/ [https://perma.cc/V2RW-3M5W].Show More and Nelson Lund described it as “analytically untenable,” an “outlandish judicial performance,” and a “fatally flawed” application of “textualist principles.”7.Nelson Lund, Unleashed and Unbound: Living Textualism in Bostock v. Clayton County, 21 Federalist Soc’y Rev. 158, 167 (2020). See also, e.g., Steven D. Smith, The Mindlessness of Bostock, Law & Liberty (July 9, 2020), https://lawliberty.org/bostock-mindlessness/ [https://perma.cc/DN8N-ZU7B] (characterizing the interpretation of Title VII in Bostock as a “descent into mindlessness”); Howard Kurtz, Gorsuch Draws Personal Attacks for Breaking Ranks on Gay Rights, Fox News (June 17, 2020), https://www.foxnews.com/media/gorsuch-draws-personal-attacks-for-breaking-ranks-on-gay-rights [https://perma.cc/UJ7D-NJHV] (describing conservatives as “bitterly disappointed” to the point of “turning on” Justice Gorsuch); Josh Hammer, Neil Gorsuch Slapped Conservatives by Creating New Gay Rights, N.Y. Post (June 15, 2020), https://nypost.com/2020/06/15/neil-gorsuch-slapped-conservatives-by-creating-new-gay-rights [https://perma.cc/84CP-PBXT] (stating that the Court’s opinion was not textualism but instead “ivory-tower liberalism”); Ed Whelan, A ‘Pirate Ship’ Sailing Under a ‘Textualist Flag’, Nat’l Rev. (June 15, 2020), https://www.nationalreview.com/bench-memos/a-pirate-ship-sailing-under-a-textualist-flag/ [https://perma.cc/KDH8-R9TX] (agreeing with Justice Alito’s dissent and expressing disappointment with Justice Gorsuch and Chief Justice Roberts); Jeremy Stahl, Conservative Activists and Pundits Are Melting Down Over Gorsuch’s Embrace of LGBTQ Rights, Slate (June 15, 2020), https://slate.com/news-and-politics/2020/06/carrie-severino-meltdown-neil-gorsuch-lgbtq-rights.html [https://perma.cc/8JPS-KMBP] (relating conservatives’ belief that Justice Gorsuch “betrayed the Constitution”); Rena M. Lindevaldsen, Bostock v. Clayton County: A Pirate Ship Sailing Under A Textualist Flag, 33 Regent U. L. Rev. 39, 39 (2021) (warning that Bostock “ushers in new threats to the safety, well-being, and constitutional rights of many Americans”).Show More The opinion even kindled questions of whether conservatives should discard textualism altogether, in favor of a judicial methodology that is expressly guided by conservative moral values.8.See, e.g., Josh Hammer, Undoing the Court’s Supreme Transgression, Am. Mind (June 19, 2020), https://americanmind.org/memo/undoing-the-courts-supreme-transgression/ [https://perma.cc/7AF4-JF6J] (“There is no escaping the takeaway of Bostock v. Clayton County, Georgia, in which Federalist Society-vetted ‘originalist’ golden boy Neil Gorsuch became the latest member of the ignominious list of Republican nominees at the Court to cave on a civilization-defining cultural issue. That conclusion is both stark and depressing: The conservative legal movement, with all its attendant institutions, theories, and pedagogies, has failed conservatism.”).Show More

On the liberal side of the discourse, the decision was roundly praised,9.See, e.g., Adam Liptak, Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules, N.Y. Times (Oct. 14, 2021), https://www.nytimes.com/‌2020/06/15/us/gay-transgender-workers-supreme-court.html [https://perma.cc/FF5C-L4P7] (“The decision was both symbolic and consequential, and it followed in the tradition of landmark rulings on discrimination.”); Tim Fitzsimons, Supreme Court Sent ‘Clear Message’ with LGBTQ Ruling, Plaintiff Gerald Bostock Says, NBC News (June 16, 2020), https://www.nbcnews.com/feature/nbc-out/supreme-court-sent-clear-message-lgbtq-ruling-plaintiff-gerald-bostock-n1231190 [https://perma.cc/ZG5R-B36S] (“When the history books are written, Gerald Bostock’s name will grace the landmark case that on June 15, 2020, won LGBTQ people nationwide protection from workplace discrimination.”); Ian Millhiser, The Supreme Court’s Landmark LGBTQ Rights Decision, Explained In 5 Simple Sentences, Vox (June 15, 2020), https://www.vox.com/2020/6/15/21291515/supreme-court-bostock-clayton-county-lgbtq-neil-gorsuch [https://perma.cc/N252-3WE2] (“Bostock v. Clayton County, a landmark Supreme Court decision holding that federal law prohibits employment discrimination against LGBTQ workers, was a test of Justice Neil Gorsuch’s principles. He passed.”).Show More and rightly so with respect to the result. It was a momentous victory for lesbian, gay, and transgender people and, indeed, for greater social justice more generally. It even led some scholars to reexamine textualism and its potential for advancing liberal and progressive causes.10 10.See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 266 (2020) (stating Bostock’s “result may be reason enough to reexamine some assumptions about textualism”).Show More

More granularly, it also has led scholars to extol the but-for causation standard—which the majority opinion used to justify its purportedly textualist result—as the best way forward for anti-discrimination law. Chief among them is Professor Katie Eyer. In her article The But-For Theory of Anti-Discrimination Law,11 11.Katie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621 (2021).Show More Eyer explains that anti-discrimination law has “display[ed] a conceptual confusion of disparate treatment and intentional discrimination.”12 12.Id. at 1634.Show More This, in turn, has led to judicial lawmaking that improperly limits the reach of anti-discrimination law. And, she notes, advocacy and scholarship have been jumbled and disorganized in opposing these efforts. A large part of that, in her view, is the absence of a central message and a central principle for anti-discrimination law to build upon.13 13.Id. at 1636–37.Show More In light of these confusions, she contends that we should “reorient[]” the basic factual inquiries of anti-discrimination law to the but-for causation test, for it is both grounded in textualism and can best “ensur[e] that anti-discrimination law can achieve its basic promises.”14 14.Id. at 1622. Eyer also observes that Comcast Corp. v. National Assn of AfricanAmerican-Owned Media, 140 S.Ct. 1009 (2020), employed the simple “but-for” test in the context of 42 U.S.C. § 1981 and the statutory language that affords “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Eyer, supranote 11, at 1643–44 (citing Comcast, 140 S.Ct. at 1014–19).Show More

However, but-for causation, especially as the Court understands it, is unlikely to improve the situation. In a recent coauthored article, Bostock was Bogus: Textualism, Pluralism, and Title VII, Mitch Berman and I contend that the result in Bostock is not in fact justified by textualism. 15 15.Mitchell N. Berman & Guha Krishnamurthi, Bostock Was Bogus: Textualism, Pluralism, and Title VII, 97 Notre Dame L. Rev. (forthcoming 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3777519 [https://perma.cc/8Z8E-9J4L] (all pin cites to manuscript page numbers).Show More Specifically, we argue that the ordinary meaning of Title VII does not cover discrimination “because of” an individual’s sexual orientation.16 16.Id. at 5.Show More Furthermore, we explain how the proper understanding of but-for causation does not cover discrimination on the basis of one’s sexual orientation. To this end, we formulate a constraint on how one chooses the comparator in but-for reasoning—what we call the Principle of Conservation in Motivational Analysis (PCM):

[In performing counterfactual analysis,] [w]hen changing one fact requires changing other facts too, the analyst must not change facts that are known, confidently believed, or stipulated to have been among the actor’s motivating reasons in favor of facts that are not likely, or less likely, to have been among the actor’s motivating reasons.17 17.Id. at 38.Show More

Applied to Bostock, we contend that this would constrain the choice of comparator and thus show that the plaintiffs were not discriminated against but for their sex.18 18.Id. at 5, 38.Show More Consequently, because we favor the result in Bostock, and because the proper textualist but-for analysis does not deliver it, we think that provides reason to disfavor textualism.19 19.Id. at 5, 44–48.Show More That is our beef with textualism.

But life is short, and that Article is long, so I do not rehash it here. Instead, I contend here that the Court’s simple but-for causation test, by its own lights, does not advance anti-discrimination law. To be sure, Eyer and I agree on the goals of advancing anti-discrimination law: that Title VII be more capacious in recognizing discrimination on the basis of protected traits in its varied forms, that plaintiffs have greater ability to raise their claims, and ultimately that there be less invidious discrimination. Yet the but-for test simply fails to advance these goals. First, it does not cover under Title VII core cases of discrimination that it ought to recognize—including discrimination against bisexual, pansexual, and trans people. Second, the simple but-for test can be used as a sword to cut down policies that have made our workplaces safer and less discriminatory. This leads me to conclude that simple but-for causation is not the appropriate foundation for anti-discrimination law. Instead, I suggest that we should approach anti-discrimination statutes with a pluralist lens, and I find support for this in Eyer’s own analysis.

This Essay proceeds in three Parts. First, I briefly set forth the reasoning of the Bostock majority and explain the simple but-for causation test. Second, I observe that the simple but-for test surprisingly fails to cover cases of discrimination that it ought to cover, like discrimination against bisexual and pansexual individuals and people whose sexual presentation is ambiguous. Third, I show how the simple but-for test has broad over-coverage that may threaten important workplace anti-discrimination policies, including affirmative action. Finally, I conclude with a discussion of why a pluralist interpretation of Title VII better realizes the aims of anti-discrimination law.

I. The Bostock Majority and the “Simple” But-For Test

In early 2019, the Supreme Court granted certiorari in three cases—Zarda v. Altitude Express, Bostock v. Clayton County, and Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes—and consolidated them for hearing.20 20.Bostock, 140 S. Ct. at 1737–38.Show More In a 6–3 decision, the Court held that discrimination on the basis of sexual orientation or transgender status constitutes discrimination “because of [an] individual’s . . . sex” and therefore violates Title VII.21 21.Id. at 1738–43.Show More The majority opinion, written by Justice Gorsuch, contended that the text of the statute demanded this result.22 22.Id. at 1741.Show More Title VII states in relevant part:

It shall be an unlawful employment practice for an employer—

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.23 23.42 U.S.C. § 2000e-2(a).Show More

In parsing this text, Justice Gorsuch first located the key phrase “because of such individual’s . . . sex.”24 24.Bostock, 140 S. Ct. at 1738 (citing the statute).Show More He stated that “[i]n the language of law,” a person is fired “because of” their sex if their sex is a “but-for” cause of the discrimination.25 25.Id. at 1739 (internal quotation marks omitted); see also id. at 1743 (stating that this understanding of “because of” arose from “the straightforward application of legal terms with plain and settled meanings”).Show More He then explained that the but-for test operates in the following way: We “change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”26 26.Id. at 1739.Show More

Consider then the majority’s application of the but-for test to Bostock’s and Zarda’s cases. Gerald Bostock was employed by Clayton County, Georgia as a child welfare advocate, and David Zarda was a skydiving instructor working for Altitude Express.27 27.Id. at 1737–38.Show More Both men, Bostock and Zarda, alleged that they were terminated for being gay—that is, because of their sexual orientation.28 28.Id.Show More The majority applied the simple but-for test as follows: We would change one thing—Bostock’s and Zarda’s sex, while keeping everything else constant. Most relevantly, we would keep constant the fact that Bostock and Zarda were attracted to men. Thus, the comparators of Bostock and Zarda would be women who were attracted to men. And because the employers, Clayton County and Altitude Express, would presumably not have terminated women who were attracted to men, “changing the employee’s sex would have yielded a different choice by the employer.”29 29.Id. at 1741–42.Show More Thus, on the majority’s account, Bostock and Zarda were fired “because of” their “sex.”30 30.Id. at 1742.Show More

Next consider how the majority applied the but-for test to Aimee Stephens’s claims of discrimination based on her transgender status in Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes.31 31.Id. at 1731, 1738.Show More Suppose “an employer . . . fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth,” then “the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”32 32.Id. at 1741.Show More Consequently, the employee would not have been terminated but for the employee’s sex and was therefore discriminated against “because of” the employee’s sex.33 33.Id. at 1741–42.Show More

In both cases, we see the simple but-for test at work. However, we observe that the test doesn’t actually work as Justice Gorsuch says: When applying the test in these cases, we aren’t changing just one thing. In the Bostock–Zarda example, the employee is (1) a man, (2) attracted to men, and (3) gay. The comparator is (1) a woman, (2) attracted to men, and (3) heterosexual. So, two things changed. And if we’re open to changing two things, then there is an alternative comparator: a person who is (1) a woman, (2) attracted to women, and (3) gay. The majority opinion doesn’t provide a principled reason why we should choose one comparator over the other.34 34.SeeBerman & Krishnamurthi, supranote 15, at 29–31.Show More

In our forthcoming work, Berman and I suggest that PCM does limit the choice of comparator, and that in the Bostock and Zarda cases, the alternative comparator—the woman who is attracted to women—is the appropriate choice.35 35.Id. at 38–39.Show More Recall PCM’s demand in performing counterfactual analysis: “When changing one fact requires changing other facts too, the analyst must not change facts that are known, confidently believed, or stipulated to have been among the actor’s motivating reasons in favor of facts that are not likely, or less likely, to have been among the actor’s motivating reasons.”36 36.Id. at 38.Show More As a general rule, when engaging in but-for analysis, we want the counterfactual to be as close to the actual world as possible.37 37.Robert C. Stalnaker, Knowledge and Conditionals: Essays on the Structure of Inquiry 156 (2019) (stating “among the alternative ways of making the required changes, one must choose one that does the least violence to the correct description and explanation of the actual world”).Show More PCM aims to capture this proper way to conduct counterfactual reasoning with respect to the actor’s motivations, imperfect as it may be.

Applying it to the Bostock and Zarda cases, we see that the majority’s comparator—the heterosexual woman—violates PCM because it changes what we have strong reason to believe is among the actor’s motivating reasons—that the targeted employee was gay. In contrast, the alternative comparator keeps that fact of sexual orientation constant. And using the alternative comparator, there is good reason to think that the comparators would have also been fired, given their sexual orientation. Consequently, under proper but-for analysis, Bostock does not vindicate the result that discrimination based on an individual’s sexual orientation is discrimination based on an individual’s sex, and thus actionable under Title VII.

Eyer disagrees with us, arguing that we have the wrong comparator. She contends that the alternate comparator illicitly uses a superfluous category of sexual orientation, which is simply built from the categories of sex/gender and object of attraction. In response, one could raise the charge that the object of attraction is the superfluous category, once sex/gender and orientation become fixed. That line of argument won’t resolve the question. Thus, we proffer a principled, non-ad hoc basis on which to choose between the comparators: PCM.

For Eyer, then, there are two avenues of further response. First, Eyer may have a competing explanation for why her preferred comparator is better. For example, the explanation may rest on which characteristics are more fundamental.38 38.The idea here might be that sex is more fundamental than sexual orientation, and that is why we should choose the comparator that varies the more fundamental trait—i.e., sex, instead of sexual orientation. One quick response is that it is not clear why a trait being more fundamental makes it more appropriate for variance in the but-for test. See Berman & Krishnamurthi, supranote 15, at 33 n.190.Show More That would require far more explanation, and in any event would likely undercut the posited simplicity of the but-for test. Or it could be that, if there are multiple comparators, the plaintiff may choose among them in framing the argument.39 39.Eyer confirmed to me in private correspondence that this is not her own view. But others have taken this position. See Berman & Krishnamurthi, supranote 15, at 34 n.192.Show More Then, so long as the plaintiff, equipped with their choice of comparator, can show the but-for relationship with a protected ground, they have shown the requisite “because of” relationship in Title VII. This but-for test may be expansive in the types of discrimination it cognizes.40 40.Berman & Krishnamurthi, supranote 15, at 34–40.Show More

*  *  *

Eyer sees much promise in this simple but-for standard and she thinks it should serve as a new foundation for anti-discrimination law. She writes, “In an era where textualism is the ascendant method of statutory interpretation at the Supreme Court, this type of argument may have considerable promise in addressing the conceptual confusion at the core of disparate treatment doctrine, and in mandating a true disparate treatment standard.”41 41.Eyer, supranote 11, at 1645.Show More

That conceptual confusion, as Eyer sees it, is in the tension of whether our anti-discrimination law is about “disparate treatment” or “intentional discrimination.”42 42.Id. at 1670–71 (internal quotation marks omitted).Show More Eyer contends that disparate treatment and intentional discrimination are not coextensive, yet case law has often treated them as such. This results in a tension of what must be shown to prove discrimination: Must the plaintiff show that they were treated less favorably because of a protected trait, or that the employer engaged in intentional discrimination, or both?43 43.Id. at 1633–34.Show More And there are related questions on how to treat cases of systemic discrimination as opposed to individual discrimination.44 44.Id. at 1634.Show More Eyer observes that, in the muddled understanding of anti-discrimination law, “judicial lawmaking has run amok.”45 45.Id. at 1637.Show More As she relates, courts have concocted a number of technical barriers to plaintiffs bringing claims to vindicate their rights against discrimination.46 46.Id. (citing Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law 152–55 (2017)).Show More

She claims this is where but-for causation can provide a solution. Eyer contends that the but-for test can resolve the conceptual confusion between whether anti-discrimination law is about disparate treatment or intentional discrimination.47 47.Id. at 1644–45.Show More This, she claims, was shown by (among other examples) the Bostock case—which she thinks shows the potential for the simple but-for test.48 48.Id. at 1646, 1664.Show More And from the advocacy lens, this could also provide greater potential for recourse for plaintiffs.49 49.Id. at 1662–64.Show More

Eyer acknowledges that Bostock did not dispense with the intent requirement.50 50.Id. at 1647.Show More Instead, she says that the Court has conceived of the intent requirement as the employer’s intent to subject the employee to differential treatment.51 51.Id. at 1647–48. It is not clear to me what Eyer has in mind as this more basic intent requirement. It appears to simply require that the employer have intentionally (or voluntarily) engaged in the discriminatory conduct, and nothing more. This would exclude cases where the employer engaged in the putative discriminatory conduct by accident, say. But it is unclear how much further would be required. And if nothing more is required then this might collapse the but-for standard (or in Eyer’s terms, the “disparate treatment” standard) into the disparate impact standard, though Eyer maintains that they are still distinct. Id.at 1632–34.Show More She proffers that this simple but-for causation standard, with this more basic intent requirement, is what anti-discrimination scholars should build upon.52 52.Id. at 1644–50.Show More

Then Eyer recognizes four alternative paradigms of discrimination: (1) stereotyping jurisprudence; (2) negligent discrimination; (3) disparate impact; and (4) the motivating factor paradigm.53 53.Id. at 1664–81.Show More She argues that the simple but-for test either wholly or partially incorporates these alternatives, and where they conflict, the but-for test is more favorable for the promises of anti-discrimination law.54 54.Id. at 1664–65.Show More Thus, the simple but-for test can serve as the proper foundation for rebuilding anti-discrimination law.

II. The Under-Coverage of the Simple But-For Test

Along with other advantages, Eyer celebrates the simple but-for test for its ability to recognize discrimination on the basis of sexual orientation and transgender status as unlawful discrimination under Title VII.55 55.Id. at 1646.Show More Indeed, she suggests that this has potential beyond this important-but-singular question. To her, the simple but-for test has the potential to recognize other kinds of discrimination that, under the prior conceptual confusions of anti-discrimination law, may have otherwise escaped the reach of Title VII.56 56.Id. at 1646–47.Show More

However, this seeming benefit is illusory. First, the simple but-for test cannot even recognize discrimination on the basis of bisexual and pansexual orientation as Title VII discrimination. Second, it cannot recognize pretextual policies targeted at discriminating against transgender individuals as Title VII discrimination. The supposed payoff of the simple but-for test—which comes at the steep expense of some absurd results57 57.SeeBerman & Krishnamurthi, supranote 15, at 37–39 (explaining how the Court’s but-for test leads to absurd results and providing the example of “Costock,” demonstrating that, under the simple but-for test, discrimination based on football allegiances can be transformed into discrimination based on sex, given particular factual scenarios).Show More—falls away.

A. Bisexual and Pansexual Discrimination

Consider individuals who identify as bisexual or pansexual. I understand an individual to be bisexual if they are romantically attracted to both men and women (or both males and females).58 58.I don’t treat this definition of bisexual as canonical. Sometimes “bisexual” is defined to mean individuals who are romantically attracted to multiple genders. Under this definition, it is an umbrella term that includes pansexual. See, e.g., Zachary Zane, What’s the Real Difference Between Bi- and Pansexual?, Rolling Stone (June 29, 2018), https://www.rollingstone.com/culture/culture-features/whats-the-real-difference-between-bi-and-pansexual-667087/ [https://perma.cc/M9ZZ-QE8Q].Show More I understand an individual to be pansexual if they are romantically attracted to individuals of any sex/gender.59 59.See id.Show More Now consider an employer who has a policy against hiring bisexual or pansexual employees. Under Bostock, such a policy would appear to violate Title VII, because it is discrimination based on the individual’s sexual orientation and therefore discrimination because of such individual’s sex.

But the simple but-for test fails to produce this conclusion. Let’s run the simple test on an example to see why. Imagine two employees Xander, a bisexual man, and Yasmine, a pansexual female. They both work at Zizi, Inc., which has the aforementioned policy against employing bisexual or pansexual people. When the owner and manager, Jack Zizi, learns of their sexual orientations, he fires both Xander and Yasmine. Was this discrimination because of—that is but for—Xander’s and Yasmine’s sex?

Xander is (1) a man, and (2) attracted to both men and women (bisexual). So for the comparator X, we change one thing, Xander’s sex, from man to woman. Comparator X is (1) a woman, and (2) attracted to both men and women (bisexual). But comparator X would still be fired under the policy. Thus, Xander’s sex—being a man—is not a but-for cause of his firing.

It’s a similar result for Yasmine. Yasmine is (1) a female, and (2) attracted to individuals of any sex/gender. Changing just Yasmine’s sex from female to male, we have that comparator Y is (1) a male, and (2) attracted to individuals of any sex/gender. But under the policy, comparator Y is still fired, because they are still pansexual. Thus, Yasmine’s sex—being a female—is not a but-for cause of her firing. In both cases, Xander and Yasmine are not discriminated against because of their sex, and this is not cognizable as Title VII discrimination under the simple but-for test.

One way of resisting this is to appeal to analogy: Surely, if discrimination for being gay or being lesbian is discrimination because of one’s sex, then so too would discrimination for being bisexual and pansexual.

That seems right, as a matter of sound legal reasoning. But that isn’t how the simple but-for test works. It’s a different test that adds analogical reasoning to but-for causation—call it the “but-for + analogies” test. And embracing the need for analogy shows that the simple but-for test is not enough.

This strikes me as a deeply concerning result for the Bostock majority’s simple but-for test. One of the main virtues of the simple but-for test is that it delivered the just outcome that discrimination because of an individual’s sexual orientation is discrimination because of such individual’s sex. But as this example shows, that isn’t always the case, at least as far as the simple version of the test goes.

B. Pretextual Trans Discrimination

Even as a purely textual matter, Title VII was rightly read to recognize that discrimination on the basis of an individual’s transgender status is discrimination because of such individual’s “sex.” That’s because the ordinary meaning of “sex” includes transgender status. The Bostock majority attempts to capture this through the but-for test by using the example of a transgender employee “who was identified as a male at birth but who now identifies as a female.”60 60.Bostock, 140 S. Ct. at 1741–42.Show More Justice Gorsuch reasoned that if the employer were to treat the employee differently if they were identified as female at birth, then that is discrimination “but-for” sex, which violates Title VII.61 61.Id.Show More

But this is tenuous reasoning. What if the employer formulates the policy differently? Suppose an employer has a policy against hiring or employing “anyone whose sex/gender cannot be determined by the employer by the employee’s appearance.” The employer then fires an employee Jamie on the basis that their manager cannot determine Jamie’s sex/gender by Jamie’s appearance.

The simple but-for test applies as follows: Let’s assume (without loss of generality) that (1) Jamie is a trans man, and (2) Jamie’s appearance is such that Jamie’s manager—the agent of the employer—cannot determine Jamie’s sex/gender. Changing one thing at a time, we can make comparator J a cis man (or a trans woman, cis woman, or nonbinary). But, by operation of the simple but-for test—which tells us to change as little as possible in the comparator—(2) remains the same: J’s appearance is such that their employer cannot determine their sex/gender. Comparator J is still fired by their employer. Consequently, under the simple but-for test, Jamie’s “sex” is not a but-for cause of Jamie’s termination, and thus their termination is not “because of such individual’s . . . sex.” Here again the but-for test has failed our intuition about the right result: that such a policy is unlawful discrimination under Title VII.

One initial response is to assert that (2), Jamie/J’s appearance, would not have remained the same, if (1) Jamie/J’s sex were to change. But there’s no reason why not. It is certainly possible for J to have essentially the same facial features, keep the same hairstyle, wear the same clothes, etc.—such that J’s appearance would not reveal J’s sex/gender. And given the possibility, keeping (2) the same is exactly what is required of us when implementing the simple but-for test. In Justice Gorsuch’s words, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.”62 62.Id. at 1739 (emphasis added).Show More That’s what we’re doing.

Another counter is that, properly understood, the term “sex” encompasses the appearance of one’s sex as well. This may well resuscitate the simple but-for test in this case; if discriminating against an individual based on their appearance is just discrimination because of such individual’s sex, then this conduct is unlawful under Title VII. But this is in no way special to the simple but-for test. Proposing that “sex” encompasses appearance of sex would enable the other aforementioned accounts—anti-stereotyping; negligent discrimination (because it would be intentional); disparate impact; and motivating factor—to cognize this policy as discrimination based on one’s sex.63 63.Eyer, supranote 11, at 1664–81. Eyer contends that each of these accounts is unnecessary and superfluous if the but-for theory is adopted. However, it seems as though the but-for theory requires supplementation to achieve the correct results, and such supplementation could be used for the other theories as well. In that case, the but-for theory lacks any explanatory advantage.Show More Indeed, this move seems to be more in accord with the anti-stereotyping account, which observes that much sex discrimination is based on discrimination of individuals for failure to conform to sex stereotypes.64 64.See id. at 1665–71 (discussing the anti-stereotyping account); Anthony Michael Kreis, Unlawful Genders, Law & Contemp. Probs.(forthcoming 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3875489 [https://perma.cc/JU53-XELF] (criticizing Bostock for failing to endorse the anti-stereotyping principle and explicating the costs of this failure).Show More

Ultimately, I contend this response reveals that the simple but-for test isn’t doing the work to show that this hypothetical anti-transgender policy is actionable sex discrimination. Rather, the failure of the simple but-for test requires that we broaden the meaning of the term “sex” to obtain the intuitively correct result. This should give us pause in thinking that the simple but-for test itself serves as a solid foundation for a progressive anti-discrimination law. It just doesn’t deliver the intuitively correct results.

Finally, Eyer suggests another move that abstracts from the individual to the group. She says, “where a policy or practice would not have been adopted ‘but for’ the group adversely affected (or the group advantaged), the but-for principle is violated.”65 65.Eyer, supranote 11, at 1669.Show More Here, the idea might be that but for the existence of trans individuals—and trans identity—the employer would not have adopted this appearance rule. Thus, this counts as discrimination “because of” trans identity, which in turn is “because of” sex.

First, this would raise some difficult epistemic issues. It is difficult to know how one would prove an employer had a generalized group in mind when formulating a neutral policy. I envision that the employer would need to expressly state so or perhaps demonstrate an animus toward the impacted group. But this gets us to the kind of analysis of intentions that the but-for test was supposed to allow us to circumvent.66 66.See supranotes 50–52 and accompanying text.Show More

More importantly, it may have a drastic over-coverage problem. Consider a simple “no racism” policy. A “no racism” policy only exists in light of the fact that there are races. That is, but for the existence of the races, a “no racism” policy wouldn’t be promulgated. Does that mean every “no racism” policy violates Title VII?67 67.At a more basic level, the existence of the sexes—of men and women—quite literally gave rise to human life. Does every employment action whatsoever count as sex discrimination per Title VII?Show More Eyer surely has in mind a more sophisticated, restrictive construction of this “group” but-for test. However, such a but-for test occurs to me as anything but simple, and indeed I think it will rely on various types of reasoning to define its contours.68 68.See infraConclusion.Show More

*  *  *

This is not to say that the result in Bostock was incorrect or that Title VII does not cover discrimination based on one’s sexual orientation or transgender status. As suggested above, a broad interpretation of the term “sex” may allow for recognizing sexual orientation discrimination and pretextual discrimination targeting transgender individuals. Another way to recognize such discrimination under Title VII may be through what I have called “conceptual causation.”69 69.Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, Yale J. Reg.: Notice & Comment (July 22, 2020), https://www.yalejreg.com/nc/bostock-and-conceptual-causation-by-guha-krishnamurthi-peter-salib/ [https://perma.cc/3JC5-6NEY].Show More Under this proffered doctrine, A is “because of” B, when “A conceptually depends on B”—that is, “an analysis of A requires an analysis of B.”70 70.Id.Show More Indeed, the Bostock majority at times seems to rely on this doctrine.71 71.Bostock, 140 S. Ct. at 1746 (“There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done.”).Show More Professor Benjamin Eidelson has proffered an intriguing account that builds upon conceptual causation, which he calls the dimensional account.72 72.Benjamin Eidelson, Dimensional Disparate Treatment, 95 S. Cal. L. Rev. (forthcoming 2022).Show More And finally, there is a strong pluralist argument in favor of Bostock’s result.73 73.Berman & Krishnamurthi, supranote 15, at 44–48.Show More The key point is that these other ways to recognize transgender and sexual orientation discrimination under Title VII are distinct and independent from the simple but-for test. And that’s for good reason—the simple but-for test doesn’t do the requisite work.

III. The Over-Coverage of the Simple But-For Test

I have shown that, despite the result in Bostock, the simple but-for test fails to cover even basic forms of sexual orientation discrimination and pretextual policies that target transgender status. But if that were not enough, the but-for test would also recognize as discrimination under Title VII many kinds of employment policies that have been key to ensuring workplaces are safe from discrimination.

As a theoretical matter, this is perhaps unsurprising. In no other area of the law does but-for causation constitute the extent of a legal test of liability. In tort, causation requires a showing of but-for causation, but one must show proximate causation as well.74 74.David W. Robertson, William Powers, Jr., David A. Anderson & Olin Guy Wellborn III, Cases and Materials on Torts 167–68 (5th ed. 2017).Show More That’s in part because but-for causation can be expansive. Our biological parents giving birth to us are but-for causes of everything we do. But it would be a stretch to say that a misbehaving employee was fired because of their biological parents. So in embracing the simple but-for test, we are pellucidly signing up for over-coverage problems. But beyond absurd cases, below I explain how this may impede anti-discrimination policies.

A. Restricting Anti-Bigotry Policies

First, consider an employer who promulgates an anti-bigotry policy for employees. Under the policy, employees who behave in racist or sexist ways will be disciplined or terminated. Now, we can recognize that, as a matter of social fact, there are certain kinds of acts that are generally understood to be bigoted if committed by an out-group person, but not considered bigoted if committed by an in-group person. This is typically the case, for example, with uttering certain slurs or speaking with particular vocabulary or in vernacular.

Suppose a white employee calls a Black coworker a slur.75 75.I thank Mitch Berman for his insights here.Show More This is the kind of behavior that may be seen as racist when committed by the white coworker, but would not be if uttered by a Black person. As a consequence of the racist behavior, the white employee is promptly fired. My intuition is that the employer’s firing of the white employee for calling a Black coworker a slur is not discriminatory as a matter of Title VII. And I think that is an important result for the operation of an anti-bigotry policy that is sensitive to social context and history.

However, the but-for test would decide otherwise. The white employee may argue that their race was a but-for cause of their firing: The white employee (1) is white, and (2) used a particular slur to refer to a Black person. We change just (1), such that the comparator is a Black person. By assumption, had the Black coworker used the particular slur, it would not have been seen as racist. Consequently, the comparator—who is Black—would not have been fired. The white employee’s race was therefore a but-for cause of his firing, thus violating Title VII.

One might be inclined to embrace this conclusion, that under Title VII employees should never receive differential treatment, even based on social facts about what constitutes racism or sexism in different contexts. I disagree; anti-discrimination law is not furthered by the principle that all policies must be blind to the history and social facts about bigotry.

B. Affirmative Action

Nothing makes clearer the importance of sensitivity to social context and history than affirmative action. “Affirmative action” refers to programs in which “minority groups may be given an advantage in admissions or employment (in order to account for historical and contemporary discrimination or to ensure diversity).”76 76.Eyer, supranote 11, at 1685.Show More There are several justifications for affirmative action. Among them are that affirmative action is necessary to restore society to a nonracist (or nonmisogynistic) position;77 77.See, e.g., Ronald J. Fiscus, The Constitutional Logic of Affirmative Action 38 (Stephen L. Wasby ed., 1992).Show More that it remedies discrimination, either latent or overt, in hiring and admissions processes;78 78.See, e.g., Tseming Yang, Race, Religion, and Cultural Identity: Reconciling the Jurisprudence of Race and Religion, 73 Ind. L.J. 119, 178–79 (1997).Show More that it promotes the interests of diversity;79 79.Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (“[O]ur tradition and experience lend support to the view that the contribution of diversity is substantial.”).Show More and that it prevents discrimination by combating tokenism and stereotype threat.80 80.See, e.g., Michael J. Yelnosky, The Prevention Justification for Affirmative Action, 64 Ohio St. L.J. 1385, 1387 (2003).Show More

Affirmative action programs can take many forms and I don’t attempt here to cover all programs that receive such a label. The hallmark of an affirmative action program in hiring is that, by its operation, it will result in some minority individual receiving a position that they otherwise would not have received. And, in hiring, when there are more applicants than positions—which is regularly the case—this will result in some minority individual receiving a position that a non-minority individual would have otherwise received. This is uncontroversial—that’s the whole reason for the program. Speaking generally then, affirmative action programs are important for furthering the promises of anti-discrimination law. And indeed, as demonstrated by United Steelworkers of America v. Weber,81 81.443 U.S. 193, 204, 207–08 (1979) (holding that an affirmative action plan did not violate Title VII and was a legitimate effort to eliminate lingering employment discrimination).Show More Johnson v. Transportation Agency,82 82.480 U.S. 616, 642 (1987) (holding that an agency’s affirmative action hiring plan did not violate Title VII and represented “a moderate, flexible, case-by-case approach” to “improv[ing] . . . the representation of minorities and women in the Agency’s work force”).Show More and United States v. Paradise,83 83.480 U.S. 149, 185–86 (1987) (holding that an affirmative action promotion plan did not violate the Equal Protection Clause to remedy the organization’s past intentional hiring discrimination and discriminatory promotional procedures).Show More such programs are legal if employed for an appropriate purpose—such as to remedy historical discrimination.

Yet such programs would fail the simple but-for test. Consider an affirmative action hiring program that operates on race. As discussed above, by operation of the program, some individual who belongs to a racial minority will receive the position, which some individual who belongs to a racial nonminority would have otherwise received. Thus, but for the race of the individual who belongs to a racial nonminority, they would have received the job. And thus, under the simple but-for test, that would count as a Title VII violation.84 84.One might object that this program does not fail the but-for test, because the nonminority that is not hired may not be particularly identifiable. It might be that any number of nonminority individuals may have had a chance at getting the job instead, and thus no Title VII claim can be maintained. This argument fails, because all that needs to be shown is a loss of a chance at fair hiring (which then must be priced accordingly at the damages stage). See, e.g., Alexander v. City of Milwaukee, 474 F.3d 437, 449 (7th Cir. 2007).Moreover, if this argument were to hold water, it would spell trouble for anti-discrimination law. Employers could design patently bigoted policies to escape Title VII’s reach by keeping the classifications nebulous and thereby obscuring the discrimination’s targeted nature.Show More

A number of scholars worry that the natural extension of Bostock’s but-for causation analysis is the invalidation of affirmative action programs under Title VII and similar anti-discrimination statutory schemes.85 85.Jeannie Suk Gersen, Could the Supreme Court’s Landmark L.G.B.T.-Rights Decision Help Lead to the Dismantling of Affirmative Action?, New Yorker (June 27, 2020), https://www.newyorker.com/news/our-columnists/could-the-supreme-courts-landmark-lgbt-rights-decision-help-lead-to-the-dismantling-of-affirmative-action [https://perma.cc/8S4J-HPBD]; Cass R. Sunstein, Gorsuch Paves Way for Attack on Affirmative Action, Bloomberg (June 17, 2020, 8:30 PM), https://www.bloombergquint.com/gadfly/gorsuch-gay-rights-opinion-targets-affirmative-action [https://perma.cc/8GUQ-NJUL]; Jason Mazzone, Bostock: Were the Liberal Justices Namudnoed?, Balkinization(July 6, 2020), https://balkin.blogspot.com/2020/07/bostock-were-liberal-justices-namudnoed.html [https://perma.cc/RXK7-PM9Z].Show More Eyer contends that the ship has sailed with respect to affirmative action programs that explicitly use racial classifications—they are already constitutionally disfavored in our textualist era regardless of the but-for principle, and therefore should not serve as an impediment to adopting the but-for test.86 86.Eyer, supranote 11, at 1685–86.Show More

Eyer instead takes solace in the fact that, in the next constitutional battleground, “race-intentional remedial policies that do not explicitly classify [based on race]” may be bolstered by the but-for principle.87 87.Id. at 1686–87.Show More Consider Eyer’s example of school integration policies that do not explicitly use racial classifications but are race intentional in that they seek a racially integrated school. Eyer contends that such a program would pass constitutional muster under the but-for test, because the measures would have been adopted regardless of the race of the individuals affected.88 88.Id. at 1687.Show More

This strikes me as the wrong way to proceed. First, I do not think that we should concede that affirmative action programs that explicitly use racial classifications are constitutionally invalid or doomed. If it is true that today’s textualism is incompatible with such affirmative action programs, then all the worse for today’s textualism. Indeed, I might be so bold as to say that is a reductio ad absurdum of textualism—and certainly not a reason to adopt the purportedly textualist but-for test. And insofar as Eyer is suggesting we fall in line with the Court’s mistaken jurisprudence, I humbly suggest we should instead hold our own.

Moreover, I am not at all convinced that the but-for test will be a useful tool in crafting a sensible jurisprudence for race-intentional policies that do not explicitly use racial classifications. Consider again the example of school integration. Suppose there is a de facto segregated municipality. The municipality undertakes a race-intentional policy that does not use explicit classifications in order to create a racially integrated school. Eyer states that “it seems a much more difficult claim to suggest that their actions were disparate treatment, i.e., that they would not have been taken ‘but for’ the race of those affected.”89 89.Id. at 1688.Show More This occurs to me as mistaken. By hypothesis, the policy is “race-intentional”; it thus takes into account the race of the affected individuals, even if not explicitly stated.90 90.Id. at 1686–88.Show More If the race of the affected individuals were different, we would certainly expect a different policy. Eyer considers the policy action of geographically locating the school.91 91.Id. at 1688.Show More If the racial makeup of the school district was substantially different in terms of percentages and geographical breakdown, wouldn’t we expect that the school would need to be located differently to maximize racial integration?92 92.One critical question is how we apply the but-for test to such a scenario. Specifically, what do we change in the scenario and how do we change it? Do we change the race of all the students that go to the school, and what would we change their race to? This raises the serious concern of whether the but-for test is coherent and sufficiently determinate when applied to such scenarios.Show More

If it is the case that such race-intentional policies that do not use explicit classifications are constitutionally valid under the but-for test, what mischief is in store? Can a race-intentional policy aimed at segregating schools pass constitutional muster? We could craft a similar example simply substituting the nefarious purpose that would analogously pass the but-for test. That is a clear reductio, suggesting that the but-for test cannot proffer a sensible jurisprudence of race-intentional policies that are explicitly neutral. Consequently, the but-for test neither preserves the important results of affirmative action, nor promises advancement with respect to race-intentional, but explicitly neutral policies. That is sufficient reason to think that the simple but-for test is just not the way forward for those who want a robust anti-discrimination law that aims at and is capable of rectifying historical oppression.

C. Requiring Ignorance

Finally, to show how expansive the simple but-for test would be, consider a hypothetical concerning an employee lying on paperwork.93 93.Ben Eidelson discusses a similar hypothetical in his forthcoming Article. Eidelson, supra note 72, at 29.Show More Suppose an employer, in the course of hiring, has paperwork that includes a self-identification survey that asks about race, sex, and sexual orientation. The paperwork is optional, but the employer adds a notation that, in filling out the paperwork, prospective employees should not lie about this information. Seems fair enough.

A prospective employee lies about their race, thinking that it will better their chances of getting hired. At the conclusion of a long process, they are ultimately hired. After some time, the employee states to other coworkers that they lied on the paperwork. One of the coworkers reports this to the hiring manager. The hiring manager examines the documentation and approaches the employee to ask them about it. The employee then confesses to lying about their race and the hiring manager fires the employee for lying on the application.

I think it’s intuitively clear that if the employer fires the employee for lying on the hiring paperwork about their race, that isn’t and shouldn’t be actionable discrimination under Title VII as race discrimination. But that is precisely the conclusion we might draw from applying the simple but-for test.

Suppose for example a white employee claims to be Black. Here is what we know about the employee: (1) They are white; and (2) they wrote on the paperwork that they were Black. If we are to change only one thing at a time, namely the employee’s race from white to Black, then the employee would not have lied about their race on the paperwork and wouldn’t be fired by the employer. Thus, the employee’s race was a but-for cause of the firing. Embracing the simple but-for test, we come to the conclusion that the employer fired the employee “because of” the employee’s race, in violation of Title VII. That occurs to me as wrong—and devastatingly so for the but-for test.

It may seem like a far-fetched example, but it’s not.94 94.See, e.g., Colleen Flaherty, More White Lies, Inside Higher Ed (Sept. 10, 2020), https://www.insidehighered.com/news/2020/09/10/more-allegations-racial-fraud-academe [https://perma.cc/G4FY-QKQY] (discussing two cases of people lying about racial identity in higher education).Show More And the potential overreach of the but-for test can have substantial consequences. It may severely restrict the ability of companies to promote diversity and equity in their ranks. If companies cannot even ask about diversity, trusting that they may obtain genuine and accurate information, how can they even run a diversity or affirmative action program?

Conclusion

I have shown that the but-for test would serve as a poor foundation for a progressive anti-discrimination law. It would fail to cover basic cases of discrimination, including on the basis of sexual orientation and trans status. And it would also prohibit important anti-bigotry and affirmative action policies in workplaces. But the question remains: How should we rebuild our anti-discrimination law in the wake of lingering conceptual confusions?

I think that pluralism is the way forward in interpreting anti-discrimination statutes like Title VII. Specifically, in interpreting and applying Title VII, I contend that one should attend to a variety of factors: original textual meaning, current meaning, legislative intentions and broader purposes, historical practice, avoiding unforeseen absurdities, and society’s shared moral commitments, among others. In many cases, these different modalities will align. When they don’t, we are confronted with a hard case; weighing the factors is not mechanical and it can be genuinely difficult and controversial.

For many, at least at first impression, this lack of certainty makes pluralism a disfavored approach. Eyer herself thinks that the lack of a simplified approach, for scholars and activists to unify behind, has been an obstacle in fixing anti-discrimination law.95 95.Eyer, supranote 11, at 1623–26.Show More

It shouldn’t be. There is good reason to favor pluralism in the context of constitutional interpretation,96 96.For favorable discussions of pluralism in constitutional interpretation, see, e.g., Philip Bobbitt, Constitutional Interpretation (1991); Richard A. Posner, The Problematics of Moral and Legal Theory (1999); David A. Strauss, The Living Constitution (2010); and Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325 (2018).Show More and many of those considerations translate to the statutory context.97 97.See generallyFrank B. Cross, The Significance of Statutory Interpretive Methodologies, 82 Notre Dame L. Rev. 1971 (2007) (discussing the Supreme Court’s embrace of pluralism in statutory interpretation).Show More With respect to anti-discrimination law in particular, I contend that a simplified theory, like simple but-for causation, will be narrow, unworkable, or both: it will wrongfully exclude cases of discrimination from its aegis or cover so many as to be rendered useless.

Most telling, I think, is that Eyer’s own analysis itself exhibits the hallmarks of pluralist analysis. She frames her defense of the simple but-for test in the context of the “basic promises” of anti-discrimination law.98 98.Eyer, supranote 11, at 1622.Show More In arguing that the but-for test fulfills these promises, Eyer appeals to the history and precedent of anti-discrimination law in grounding its aims.99 99.Id. at 1629–41.Show More She contends that the but-for theory is most consistent and consilient with the statutory text and the Court’s precedent.100 100.Id. at 1644–52.Show More And she argues that but-for causation best preserves our intuitions on what are valid discrimination claims.101 101.Id. at 1653–62.Show More To this point, she claims among other things that the but-for theory would enhance the prospects of plaintiffs bringing discrimination claims, while not hindering affirmative action programs.102 102.Id. at 1653–64, 1685–88.Show More

Now I have explained why I disagree about the purported benefits of the but-for test, finding it peppered with intuitive deficits and absurdities. But I agree that these are exactly the factors and modalities that we should consider in interpreting Title VII. Instead of searching for a simplified theory, like but-for causation, I contend we should embrace such a pluralist method. The pluralist method can be applied in each case, with careful attention to the statute’s legislative purposes, its text, current society’s shared moral commitments regarding the subject matter, and the feasible operation of the statute. That—and not simple but-for causation—is the method of interpretation that could rationally deliver the rightly celebrated result in Bostock.103 103.Berman & Krishnamurthi, supranote 15, at 44–46.Show More And that is the method that we should embrace in shaping our anti-discrimination law and continuing the march for equality.

  1. * Associate Professor, University of Oklahoma College of Law. Thanks to Mitchell Berman, Ben Eidelson, Jonah Gelbach, Talia Gillis, Charanya Krishnaswami, Alex Platt, Shalev Roisman, Peter Salib, Will Thomas, and James Tierney for helpful discussions and comments.

  2. 140 S. Ct. 1731 (2020).

  3. Id. at 1737.

  4. Id. at 1738–39 (quoting Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 346 (2013)).

  5. Id. at 1754–55 (Alito, J., dissenting); id. at 1823–25 (Kavanaugh, J., dissenting).

  6. Id. at 1755–56 (Alito, J., dissenting).

  7. Josh Blackman & Randy Barnett, Justice Gorsuch’s Halfway Textualism Surprises and Disappoints in the Title VII Cases, Nat’l Rev. (June 26, 2020), https://www.nationalreview.com/2020/06/justice-gorsuch-title-vii-cases-half-way-textualism-surprises-disappoints/ [https://perma.cc/V2RW-3M5W].

  8. Nelson Lund, Unleashed and Unbound: Living Textualism in Bostock v. Clayton County, 21 Federalist Soc’y Rev. 158, 167 (2020). See also, e.g., Steven D. Smith, The Mindlessness of Bostock, Law & Liberty (July 9, 2020), https://lawliberty.org/bostock-mindlessness/ [https://perma.cc/DN8N-ZU7B] (characterizing the interpretation of Title VII in Bostock as a “descent into mindlessness”); Howard Kurtz, Gorsuch Draws Personal Attacks for Breaking Ranks on Gay Rights, Fox News (June 17, 2020), https://www.foxnews.com/media/gorsuch-draws-personal-attacks-for-breaking-ranks-on-gay-rights [https://perma.cc/UJ7D-NJHV] (describing conservatives as “bitterly disappointed” to the point of “turning on” Justice Gorsuch); Josh Hammer, Neil Gorsuch Slapped Conservatives by Creating New Gay Rights, N.Y. Post (June 15, 2020), https://nypost.com/2020/06/15/neil-gorsuch-slapped-conservatives-by-creating-new-gay-rights [https://perma.cc/84CP-PBXT] (stating that the Court’s opinion was not textualism but instead “ivory-tower liberalism”); Ed Whelan, A ‘Pirate Ship’ Sailing Under a ‘Textualist Flag’, Nat’l Rev. (June 15, 2020), https://www.nationalreview.com/bench-memos/a-pirate-ship-sailing-under-a-textualist-flag/ [https://perma.cc/KDH8-R9TX] (agreeing with Justice Alito’s dissent and expressing disappointment with Justice Gorsuch and Chief Justice Roberts); Jeremy Stahl, Conservative Activists and Pundits Are Melting Down Over Gorsuch’s Embrace of LGBTQ Rights, Slate (June 15, 2020), https://slate.com/news-and-politics/2020/06/carrie-severino-meltdown-neil-gorsuch-lgbtq-rights.html [https://perma.cc/8JPS-KMBP] (relating conservatives’ belief that Justice Gorsuch “betrayed the Constitution”); Rena M. Lindevaldsen, Bostock v. Clayton County: A Pirate Ship Sailing Under A Textualist Flag, 33 Regent U. L. Rev. 39, 39 (2021) (warning that Bostock “ushers in new threats to the safety, well-being, and constitutional rights of many Americans”).

  9. See, e.g., Josh Hammer, Undoing the Court’s Supreme Transgression, Am. Mind (June 19, 2020), https://americanmind.org/memo/undoing-the-courts-supreme-transgression/ [https://perma.cc/7AF4-JF6J] (“There is no escaping the takeaway of Bostock v. Clayton County, Georgia, in which Federalist Society-vetted ‘originalist’ golden boy Neil Gorsuch became the latest member of the ignominious list of Republican nominees at the Court to cave on a civilization-defining cultural issue. That conclusion is both stark and depressing: The conservative legal movement, with all its attendant institutions, theories, and pedagogies, has failed conservatism.”).

  10. See, e.g., Adam Liptak, Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules, N.Y. Times (Oct. 14, 2021), https://www.nytimes.com/‌2020/06/15/us/gay-transgender-workers-supreme-court.html [https://perma.cc/FF5C-L4P7] (“The decision was both symbolic and consequential, and it followed in the tradition of landmark rulings on discrimination.”); Tim Fitzsimons, Supreme Court Sent ‘Clear Message’ with LGBTQ Ruling, Plaintiff Gerald Bostock Says, NBC News (June 16, 2020), https://www.nbcnews.com/feature/nbc-out/supreme-court-sent-clear-message-lgbtq-ruling-plaintiff-gerald-bostock-n1231190 [https://perma.cc/ZG5R-B36S] (“When the history books are written, Gerald Bostock’s name will grace the landmark case that on June 15, 2020, won LGBTQ people nationwide protection from workplace discrimination.”); Ian Millhiser, The Supreme Court’s Landmark LGBTQ Rights Decision, Explained In 5 Simple Sentences, Vox (June 15, 2020), https://www.vox.com/2020/6/15/21291515/supreme-court-bostock-clayton-county-lgbtq-neil-gorsuch [https://perma.cc/N252-3WE2] (“Bostock v. Clayton County, a landmark Supreme Court decision holding that federal law prohibits employment discrimination against LGBTQ workers, was a test of Justice Neil Gorsuch’s principles. He passed.”).

  11. See, e.g., Tara Leigh Grove, Comment, Which Textualism?, 134 Harv. L. Rev. 265, 266 (2020) (stating Bostock’s “result may be reason enough to reexamine some assumptions about textualism”).

  12. Katie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621 (2021).

  13. Id. at 1634.

  14. Id. at 1636–37.

  15. Id. at 1622. Eyer also observes that Comcast Corp. v. National Ass’n of African American-Owned Media, 140 S.Ct. 1009 (2020), employed the simple “but-for” test in the context of 42 U.S.C. § 1981 and the statutory language that affords “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” Eyer, supra note 11, at 1643–44 (citing Comcast, 140 S.Ct. at 1014–19).

  16. Mitchell N. Berman & Guha Krishnamurthi, Bostock Was Bogus: Textualism, Pluralism, and Title VII, 97 Notre Dame L. Rev. (forthcoming 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3777519 [https://perma.cc/8Z8E-9J4L] (all pin cites to manuscript page numbers).

  17. Id. at 5.

  18. Id. at 38.

  19. Id. at 5, 38.

  20. Id. at 5, 44–48.

  21. Bostock, 140 S. Ct. at 1737–38.

  22. Id. at 1738–43.

  23. Id. at 1741.

  24. 42 U.S.C. § 2000e-2(a).

  25. Bostock, 140 S. Ct. at 1738 (citing the statute).

  26. Id. at 1739 (internal quotation marks omitted); see also id. at 1743 (stating that this understanding of “because of” arose from “the straightforward application of legal terms with plain and settled meanings”).

  27. Id. at 1739.

  28. Id. at 1737–38.

  29. Id.

  30. Id. at 1741–42.

  31. Id. at 1742.

  32. Id. at 1731, 1738.

  33. Id. at 1741.

  34. Id. at 1741–42.

  35. See Berman & Krishnamurthi, supra note 15, at 29–31.

  36. Id. at 38–39.

  37. Id. at 38.

  38. Robert C. Stalnaker, Knowledge and Conditionals: Essays on the Structure of Inquiry 156 (2019) (stating “among the alternative ways of making the required changes, one must choose one that does the least violence to the correct description and explanation of the actual world”).

  39. The idea here might be that sex is more fundamental than sexual orientation, and that is why we should choose the comparator that varies the more fundamental trait—i.e., sex, instead of sexual orientation. One quick response is that it is not clear why a trait being more fundamental makes it more appropriate for variance in the but-for test. See Berman & Krishnamurthi, supra note 15, at 33 n.190.

  40. Eyer confirmed to me in private correspondence that this is not her own view. But others have taken this position. See Berman & Krishnamurthi, supra note 15, at 34 n.192.

  41. Berman & Krishnamurthi, supra note 15, at 34–40.

  42. Eyer, supra note 11, at 1645.

  43. Id. at 1670–71 (internal quotation marks omitted).

  44. Id. at 1633–34.

  45. Id. at 1634.

  46. Id. at 1637.

  47. Id. (citing Sandra F. Sperino & Suja A. Thomas, Unequal: How America’s Courts Undermine Discrimination Law 152–55 (2017)).

  48. Id. at 1644–45.

  49. Id. at 1646, 1664.

  50. Id. at 1662–64.

  51. Id. at 1647.

  52. Id. at 1647–48. It is not clear to me what Eyer has in mind as this more basic intent requirement. It appears to simply require that the employer have intentionally (or voluntarily) engaged in the discriminatory conduct, and nothing more. This would exclude cases where the employer engaged in the putative discriminatory conduct by accident, say. But it is unclear how much further would be required. And if nothing more is required then this might collapse the but-for standard (or in Eyer’s terms, the “disparate treatment” standard) into the disparate impact standard, though Eyer maintains that they are still distinct. Id. at 1632–34.

  53. Id. at 1644–50.

  54. Id. at 1664–81.

  55. Id. at 1664–65.

  56. Id. at 1646.

  57. Id. at 1646–47.

  58. See Berman & Krishnamurthi, supra note 15, at 37–39 (explaining how the Court’s but-for test leads to absurd results and providing the example of “Costock,” demonstrating that, under the simple but-for test, discrimination based on football allegiances can be transformed into discrimination based on sex, given particular factual scenarios).

  59. I don’t treat this definition of bisexual as canonical. Sometimes “bisexual” is defined to mean individuals who are romantically attracted to multiple genders. Under this definition, it is an umbrella term that includes pansexual. See, e.g., Zachary Zane, What’s the Real Difference Between Bi- and Pansexual?, Rolling Stone (June 29, 2018), https://www.rollingstone.com/culture/culture-features/whats-the-real-difference-between-bi-and-pansexual-667087/ [https://perma.cc/M9ZZ-QE8Q].

  60. See id.

  61. Bostock, 140 S. Ct. at 1741–42.

  62. Id.

  63. Id. at 1739 (emphasis added).

  64. Eyer, supra note 11, at 1664–81. Eyer contends that each of these accounts is unnecessary and superfluous if the but-for theory is adopted. However, it seems as though the but-for theory requires supplementation to achieve the correct results, and such supplementation could be used for the other theories as well. In that case, the but-for theory lacks any explanatory advantage.

  65. See id. at 1665–71 (discussing the anti-stereotyping account); Anthony Michael Kreis, Unlawful Genders, Law & Contemp. Probs.

     

    (forthcoming 2022), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3875489 [https://perma.cc/JU53-XELF] (criticizing Bostock for failing to endorse the anti-stereotyping principle and explicating the costs of this failure).

  66. Eyer, supra note 11, at 1669.

  67. See supra notes 50–52 and accompanying text.

  68. At a more basic level, the existence of the sexes—of men and women—quite literally gave rise to human life. Does every employment action whatsoever count as sex discrimination per Title VII?

  69. See infra Conclusion.

  70. Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, Yale J. Reg.: Notice & Comment (July 22, 2020), https://www.yalejreg.com/nc/bostock-and-conceptual-causation-by-guha-krishnamurthi-peter-salib/ [https://perma.cc/3JC5-6NEY].

  71. Id.

  72. Bostock, 140 S. Ct. at 1746 (“There is no way for an applicant to decide whether to check the homosexual or transgender box without considering sex. To see why, imagine an applicant doesn’t know what the words homosexual or transgender mean. Then try writing out instructions for who should check the box without using the words man, woman, or sex (or some synonym). It can’t be done.”).

  73. Benjamin Eidelson, Dimensional Disparate Treatment, 95 S. Cal. L. Rev. (forthcoming 2022).

  74. Berman & Krishnamurthi, supra note 15, at 44–48.

  75. David W. Robertson, William Powers, Jr., David A. Anderson & Olin Guy Wellborn III, Cases and Materials on Torts 167–68 (5th ed. 2017).

  76. I thank Mitch Berman for his insights here.

  77. Eyer, supra note 11, at 1685.

  78. See, e.g., Ronald J. Fiscus, The Constitutional Logic of Affirmative Action

    38 (

    Stephen L. Wasby ed., 1992

    ).

  79. See, e.g., Tseming Yang, Race, Religion, and Cultural Identity: Reconciling the Jurisprudence of Race and Religion, 73 Ind. L.J

    .

    119, 178–79 (1997).

  80. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (“[O]ur tradition and experience lend support to the view that the contribution of diversity is substantial.”).

  81. See, e.g., Michael J. Yelnosky, The Prevention Justification for Affirmative Action, 64 Ohio St. L.J. 1385, 1387 (2003).

  82. 443 U.S. 193, 204, 207–08 (1979) (holding that an affirmative action plan did not violate Title VII and was a legitimate effort to eliminate lingering employment discrimination).

  83. 480 U.S. 616, 642 (1987) (holding that an agency’s affirmative action hiring plan did not violate Title VII and represented “a moderate, flexible, case-by-case approach” to “improv[ing] . . . the representation of minorities and women in the Agency’s work force”).

  84. 480 U.S. 149, 185–86 (1987) (holding that an affirmative action promotion plan did not violate the Equal Protection Clause to remedy the organization’s past intentional hiring discrimination and discriminatory promotional procedures).

  85. One might object that this program does not fail the but-for test, because the nonminority that is not hired may not be particularly identifiable. It might be that any number of nonminority individuals may have had a chance at getting the job instead, and thus no Title VII claim can be maintained. This argument fails, because all that needs to be shown is a loss of a chance at fair hiring (which then must be priced accordingly at the damages stage). See, e.g., Alexander v. City of Milwaukee, 474 F.3d 437, 449 (7th Cir. 2007).

    Moreover, if this argument were to hold water, it would spell trouble for anti-discrimination law. Employers could design patently bigoted policies to escape Title VII’s reach by keeping the classifications nebulous and thereby obscuring the discrimination’s targeted nature.

  86. Jeannie Suk Gersen, Could the Supreme Court’s Landmark L.G.B.T.-Rights Decision Help Lead to the Dismantling of Affirmative Action?, New Yorker

    (

    June 27, 2020), https://www.newyorker.com/news/our-columnists/could-the-supreme-courts-landmark-lgbt-rights-decision-help-lead-to-the-dismantling-of-affirmative-action [https://perma.cc/8S4J-HPBD]; Cass R. Sunstein, Gorsuch Paves Way for Attack on Affirmative Action, Bloomberg (June 17, 2020, 8:30 PM), https://www.bloombergquint.com/gadfly/gorsuch-gay-rights-opinion-targets-affirmative-action [https://perma.cc/8GUQ-NJUL]; Jason Mazzone, Bostock: Were the Liberal Justices Namudnoed?, Balkinization

     

    (July 6, 2020), https://balkin.blogspot.com/2020/07/bostock-were-liberal-justices-namudnoed.html [https://perma.cc/RXK7-PM9Z].

  87. Eyer, supra note 11, at 1685–86.

  88. Id. at 1686–87.

  89. Id. at 1687.

  90. Id. at 1688.

  91. Id. at 1686–88.

  92. Id. at 1688.

  93. One critical question is how we apply the but-for test to such a scenario. Specifically, what do we change in the scenario and how do we change it? Do we change the race of all the students that go to the school, and what would we change their race to? This raises the serious concern of whether the but-for test is coherent and sufficiently determinate when applied to such scenarios.

  94. Ben Eidelson discusses a similar hypothetical in his forthcoming Article. Eidelson, supra note 72, at 29.

  95. See, e.g., Colleen Flaherty, More White Lies, Inside Higher Ed (Sept. 10, 2020), https://www.insidehighered.com/news/2020/09/10/more-allegations-racial-fraud-academe [https://perma.cc/G4FY-QKQY] (discussing two cases of people lying about racial identity in higher education).

  96. Eyer, supra note 11, at 1623–26.

  97. For favorable discussions of pluralism in constitutional interpretation, see, e.g., Philip Bobbitt, Constitutional Interpretation (1991); Richard A. Posner, The Problematics of Moral and Legal Theory (1999); David A. Strauss, The Living Constitution (2010); and Mitchell N. Berman, Our Principled Constitution, 166 U. Pa. L. Rev. 1325 (2018).

  98. See generally Frank B. Cross, The Significance of Statutory Interpretive Methodologies, 82 Notre Dame L. Rev. 1971 (2007) (discussing the Supreme Court’s embrace of pluralism in statutory interpretation).

  99. Eyer, supra note 11, at 1622.

  100. Id. at 1629–41.

  101. Id. at 1644–52.

  102. Id. at 1653–62.

  103. Id. at 1653–64, 1685–88.

  104. Berman & Krishnamurthi, supra note 15, at 44–46.

Some Notes on Courts and Courtesy

This Essay is a short reflection on misgendering by judges, told through a critical assessment of three cases from the Fifth and Eighth Circuits: Gibson v. Collier, United States v. Varner, and United States v. Thomason. In the trio, judges refused to refer to trans and nonbinary parties with the appropriate titles, honorifics, and pronouns, and offered eight rationalizations to defend their doing so.

The primary task of this Essay is to entertain the justifications. It finds they come up wanting. The arguments misconstrue precedent, or are incoherent, incomplete, or just plainly unpersuasive.

Against these inadequate defenses, the Essay’s second task is to offer one case against judicial misgendering. The argument focuses on the significance and institutionally protective nature of courtesy from members of the bench, which Gibson, Varner, and Thomason either overlooked or too hastily dismissed. Judicial courtesy serves to maintain the judiciary’s legitimacy, moral authority, and reputation—all essential to generate citizen confidence and compliance, and thus all necessary for the judiciary’s basic institutional function. Given these critical interests, the Essay concludes that courtesy calls judges to refer to parties with the appropriate pronouns, honorifics, and names.

Introduction

From the moment it was published, the Bostock v. Clayton County1.140 S.Ct. 1731 (2020) (holding that Title VII’s prohibition against sex discrimination in employment applies to gay and transgender individuals).Show More decision became a cause célèbre. Generating a cottage industry of commentary, thus far the case has been picked apart and scrutinized from a variety of angles. Most readily, commentators have taken on the author and method. Others have looked ahead, exploring what the decision portends.2.E.g., Rachel Slepoi, Bostock’s Inclusive Queer Frame, 107 Va. L. Rev. Online 67, 67-68, 82 (2020) (explaining the case’s inclusive account of sex-based discrimination, and underscoring the import for trans discrimination case law moving forward); Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, Yale J. Reg. Notice & Comment (July 22, 2020), https://www.yalejreg.com/nc/bostock-and-conceptual-causation-by-guha-krishnamurthi-peter-salib/ [https://perma.cc/WU2G-QZZV](using the case as a case study to tease out issues of multifactorial causation in antidiscrimination jurisprudence).Show More At the same time, naturally, Bostock has been both celebrated and reviled for becoming the first Supreme Court case directly considering and impacting the transgender community, all while adding another link in the ever-growing chain of Court victories for lesbians and gay men.3.Compare Adam Liptak, Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules, N.Y. Times (June 15, 2020), https://www.nytimes.com/2020/‌06/15/us/gay-transgender-workers-supreme-court.html [https://perma.cc/9NFA-URBN] (summarizing celebration of the holding),withHadley Arkes, A Morally Empty Jurisprudence, First Things (June 17, 2020), https://www.firstthings.com/web-exclusives/‌2020/06/a-morally-empty-jurisprudence [https://perma.cc/BH3Q-ZUEP] (calling the case “the Roe v. Wade for transgenderism [sic], with effects that will ripple out widely in our country, touching and disfiguring our private lives.”).Show More

Still, while Bostock’s substance—what the opinion means and does—has attracted and will continue to attract scholarly attention, Bostock’s equally noteworthy style—how the opinion says what it does—has not. Amidst the litany of commentary, fanfare, and criticism, an aesthetic aspect of the decision has largely4.Unsurprisingly, trans-antagonistic commentators have, however, been more wont to notice this. E.g.,Ed Whelan, Bostock Majority: A ‘Trans Woman’ Is Not a Woman, Nat’l Rev. (June 18, 2020), https://www.nationalreview.com/bench-memos/bostock-majority-a-trans-woman-is-not-a-woman/ (lamenting the Court’s “parrot[ing] . . . the rhetoric of transgender ideology” and calling the opinion’s reasoning “deeply unsound.”).Show More gone overlooked: The majority’s use of she/her pronouns when referencing Aimee Stephens.

This is not a trivial nicety. It represents the first time that a Supreme Court majority has used gender-appropriate language when discussing an openly transgender litigant. Until now, the Court has cautiously relied on gender-neutral language, choosing to address trans parties as “petitioner” “respondent,” or by last name sans gendered titles.5.E.g., Burt v. Titlow, 571 U.S. 12 (2013) (using the gender neutral “respondent” throughout); Farmer v. Brennan, 511 U.S. 825 (1994) (using the gender neutral “petitioner” throughout).Show More Bostock’s stark stylistic sea-change thus prompts some obvious questions. What, if any, is the significance of the Court’s choice to use gender-appropriate language when referring to Stephens? And, more generally speaking, how should courts reference and address trans parties in their writing moving forward?

Unfortunately, Bostock did not provide much by way of answers. But this Essay will fashion some. It does so primarily by reviewing three circuit court decisions, Gibson v. Collier,6.920 F.3d 212 (5th Cir. 2019).Show More United States v. Varner,7.948 F.3d 250 (5th Cir. 2020).Show More and United States v. Thomason.8.991 F.3d 910 (8th Cir. 2021).Show More In the three, panels deliberately misgendered the appellants, Vanessa Lynn Gibson, Katherine Nicole Jett, and Shawn Kelly Thomason, respectively. Said differently, where Bostock was courteous, Gibson, Varner, and Thomason decidedly were not. Juxtaposing the opinions’ approaches, therefore, provides an ideal platform to judge the cases both in favor and against courts addressing gender diverse parties with gender-appropriate language. Ultimately, the Essay concludes that Bostock’s approach—which is to say, deferring to the way litigants refer to themselves—is best.

I reach that verdict in roughly two steps. Part II examines the cases made by the trio of opinions in defense of their misgendering. It will show that none of the justifications offered are particularly persuasive and, as it turns out, many are simply unsound. Even so, of the many reasons offered, one is more troubling than the rest. Varner rejected the use of gender-appropriate language as “purely . . . a courtesy to parties.”9.948 F.3d at 255.Show More That statement casts judicial showings of courtesy as unimportant and dismissible, in addition to inviting reflection on the troubling prospect that respect, etiquette, and even mere kindness should not factor into the analysis of whether courts should misgender trans parties in their opinions.

Part III takes the bait. Using Varner’s last rationale as a provocative, Section III.A argues such a trivializing account is incorrect. It makes the case for judicial courtesy towards trans litigants by zeroing in on the institutional importance of courtesy. The resulting picture is that, far from inconsequential, judicial courtesy shores up the courts’ legitimacy, moral authority, and the esteem in which it is held, along with serving several practical benefits.

Section III.B closes the Essay by considering and refuting a probable antagonism to my argument: That misgendering in judicial opinions is an acknowledgement of an “objective truth,” such that, even if there was in fact a duty of courtesy to litigants, it would not require judges to employ gender-appropriate language in their writing.

I. Of Courts: Recent Arguments for Misgendering in Judicial Writing

This Part spells out the problems with defenses for misgendering in judicial writing, as offered by three recent cases. The cases warrant focus for a few reasons. One is that they are some of the most recent Circuit court decisions to misclassify the gender of a trans litigant. From the time of the first holding, the overwhelming majority of Circuit panels have employed gender appropriate language.10 10.United States v. Pinson, 835 F. App’x. 390 (10th Cir. 2020) (adopting gender appropriate language for trans litigant); accordUnited States v. Rivera, 824 F. App’x. 930 (11th Cir. 2020); accord Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020); accordJackson v. Kuepper, 813 F. App’x. 230 (7th Cir. 2020); Gomez-Ortega v. Barr, 804 F. App’x. 738 (9th Cir. 2020); accordArrivillaga v. Att’y Gen. United States, 811 F. App’x. 756 (3d Cir. 2020).Show More

Another reason is the extent of the misgendering. Thomason is addressed by male pronouns twenty-six times and Gibson is referred to as male some forty-six times. Far more egregiously, over the course of eleven pages, the Varner majority refers to Jett with he/him pronouns and her birth name a collective sixty-six times. Varner also goes as far as to alter any quotations that address her appropriately.

The most significant reason by far, however, is that the cases unabashedly defend their gender misclassifications. Conventionally, courts choosing to misgender trans persons provide little by way of explanation. Gibson, Varner, and Thomason, however, are anything but reticent. Between the three, the cases offered eight justifications for misaddressing the litigants.11 11.Before evaluating the justifications, a short caveat is probably in order. In engaging with the arguments, I will set aside the authoring judges’ alleged histories of anti-LGBT positions and even overt transphobia. See, e.g., 39 LGBT Groups Oppose Confirmation of Stuart Kyle Duncan, Lambda Legal (Jan. 17, 2018), https://www.lambdalegal.org/in-court/legal-docs/dc_20180117_opposition-of-stuart-kyle-duncan [https://perma.cc/S9QD-XAD4]; Lambda Legal Letter of Concern About the Nomination of James Ho, Lambda Legal (Dec. 6, 2017), https://www.lambdalegal.org/in-court/legal-docs/dc_20171206_letter-of-concern-about-james-ho [https://perma.cc/KRW3-NSMK]; Lisa Keen, A Look at the LGBT Records of Trump’s Potential Court Picks, Bay Area Reporter (May 25, 2016), https://www.ebar.com/news///246311 [https://perma.cc/B792-RTMZ].I will assume that, while reviewing the cases before them, the judges set those histories aside as well.Show More

A. Gibson v. Collier’s Arguments

In Gibson, the Fifth Circuit considered whether refusing Vanessa Lynn Gibson, a transgender prisoner with severe gender dysphoria, gender-confirmation surgery violated the Eighth Amendment.12 12.920 F.3d at 217.Show More The panel concluded it did not. In the course of doing so, the court defended misgendering Ms. Gibson in three ways. The opinion: (1) cited Texas Department of Criminal Justice policy (TDCJ), emphasizing that Gibson was placed in a male penal facility; (2) cited Frontiero v. Richardson for the proposition that sex “is an immutable characteristic determined solely by . . . birth,”13 13.Id. (citingFrontiero v. Richardson, 411 U.S. 677, 686 (1973)).Show More implying pronouns are strictly genitally-referent; and (3) cited Supreme Court and Fifth Circuit case law allegedly misgendering trans litigants. Can any of these reasons adequately justify misgendering Gibson? In a word, no.

Justification (1) rests on courts’ traditional deference to penal institutions, while ignoring whether the rationales for doing so were applicable. Ordinarily, courts defer to penal policies on the logic that institutions, rather than judges, are better equipped to determine how best to advance penological interests in security and rehabilitation. Here, however, neither interest applies. It is difficult to imagine how a court using gender-appropriate language for a trans litigant alters the safety of prisons and, if anything, more respectful conduct by actors in the criminal legal system would increase the chances of rehabilitation.14 14.See Konitzer v. Frank, 711 F. Supp. 2d., 874, 912 (E.D.Wis. 2010) (finding referring to an inmate by her correct pronouns “does not appear to impinge on any . . . security issues.”).Show More The failure to advance either penal interest renders the first justification deficient.

Justification (2) similarly misses the mark. Whether sex is immutable is wholly irrelevant.15 15.Recent Case:Gibson v. Collier, Harv. L. Rev. Blog (Apr. 12, 2019), https://blog.harvardlawreview.org/recent-case-_gibson-v-collier_/ [https://perma.cc/W37M-JEAA] (noting that the opinion “cit[ed] Frontiero out of context”).Show More For the majority of modern history, pronoun use has been unhinged from persons’ genital characteristics. Think, for example, of the centuries of male-generics, applied to women. Even at present, pronouns are most typically used based on perception-related assumptions; that is, perceived sex.16 16.See Chan Tov McNamarah, Misgendering as Misconduct, 68 UCLA L. Rev. Disc. 40, 52 (2020).Show More Said differently, we use language depending on what we see in others, rather than confirming facts about their bodies. This is why, for instance, we might use the incorrect forms of address for a short-haired woman, or on the phone with a man with a higher-pitched voice. So, based on how language is used in the real world, an argument based on persons’ physical features cannot work.

Concurrently, the reliance on case law for support on a technical matter, is a move as misguided as it is dangerous. Judges are not scientists, and the science on sex in general and trans persons specifically has drastically evolved since 1973, when Frontiero was decided. It cannot be reasonable to justify present conduct based on outdated science.

Justification (3) fails as well. The rationalization relies on citations to case law purportedly misgendering trans parties. To what end? The implication is that, in some way, these cited cases countenance Gibson’s own misgendering. Arguably, the opinion would not have offered support unless it was meant to lend credence or cover to its own conduct.

Here’s the rub. Contra Gibson’s account, the Farmer v. Brennan majority opinion, which Gibson cites as “using male pronouns for transgender prisoner born male,”17 17.Gibson, 920 F.3d at 217 n.2.Show More never actually does that. Throughout, the Farmer majority meticulously used the gender-neutral “petitioner” in all references to Dee Farmer.18 18.SeeBrief for the Petitioner, R.G. & G.R. Harris Funeral Homes, No. 18-107, 8 (U.S. Aug. 16, 2019) (“Out of respect for Stephens and following this Court’s lead in Farmer v. Brennan [citation omitted], Harris tries to avoid use of pronouns and sex-specific terms when referring to Stephens.”); Amicus Brief of Free Speech Advocates in Support of Petitioner at 2, R.G. & G.R. Harris Funeral Homes, No. 18-107, 2 (U.S. Aug. 22, 2019) (“In Farmer v. Brennan, a case involving a ‘transsexual’ prisoner ‘who is biologically male,’ this Court’s eight-Justice majority opinion, authored by Justice Souter, scrupulously (and presumably intentionally) avoided all pronouns in referring to the prisoner (except when directly quoting other sources) [citations omitted].”).Show More Tellingly, as well, at oral argument, the Justices referred to Ms. Farmer with the appropriate female language.19 19.See Ezra Ishmael Young, What the Supreme Court Could Have Heard inR.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, 11 Cal. L. Rev. Online 9, 33-34 (2020) (analyzing oral argument transcript).Show More Stated bluntly, at best, Gibson misreads the case it cites as support and, at worse, Gibson disfigures it.

B. United States v. Varner’s Arguments

In Varner the Fifth Circuit considered Kathrine Nicole Jett’s appeal from a district court’s denial of a motion to change the name on an earlier judgement.20 20.948 F.3d at 252 (5th Cir. 2020).Show More The panel vacated the denial for lack of jurisdiction. Then, in a seven-page soliloquy, the Court provided ample reasons why it rejected Jett’s simultaneous motion to “use female pronouns when addressing [her].”21 21.Id.at 253.Show More

The court defended the refusal on three grounds. That: (4) using gender-appropriate language would give the impression of wrongful partiality towards Jett; (5) that allowing Jett’s motion would open a slippery-slope whereby courts would be forced to use uncommon neo-pronouns (i.e., pronouns like ze, xe, etc.); and (6) that no authority exists persuading the court to use gender-appropriate language.

Perhaps there are some closer-to-satisfactory arguments for why an opinion contains misgendering language, but Varner didn’t offer any.22 22.To be clear, I think that an opinion using misgendering language differs from one mentioning or quoting it. See Paul Saka, Quotation and the Use-Mention Distinction, 107 Mind 113 (1998). To see the difference, imagine a discrimination case where the court is quoting misgendering language as proof of bias or prejudice. I could be convinced that there might be good reason to quote exactly what was said to aid the reader fully grasp the nature of the discriminatory context, at least with an inserted “sic.” SeeMcNamarah, supranote 16, at 60–61 (using that convention).Alternatively, the court could use the parenthetical “misgendering in original” after the citation, to distance itself from the language. See, e.g., Lihi Yona & Ido Katri, The Limits of Transgender Incarceration Reform, 31 Yale J.L. & Feminism 201, 212 n.39 (2020) (using that convention).Show More Justification (4), the warning that a court respecting the gender of a trans litigant implies improper bias is vastly exaggerated, if not just illogical. Many courts have respected trans parties, while ruling against them, or explicitly indicating that the language used had no bearing on the case. Varner, though, apparently fails to consider that possibility. What’s more, accepting the reasoning, the proper course to maintain judicial neutrality would appear to be employing gender-neutral language, rather than misgendering the trans party.23 23.Even that approach, though, would be problematic unless the court used gender-neutral references for all parties, rather than singling out gender diverse ones.Show More Strangely enough, the opinion conspicuously sidestepped that conclusion.

Next comes justification (5), a slippery-slope excuse. The contention is that, by respecting Jett’s binary gender pronouns, the court will have to respect less-common ones (i.e., gender neutral pronouns like they/them, or neopronouns like zhir/zhem etc.) in the future. Nothing compels that conclusion.24 24.The slope needn’t be slippery. For the sake of argument: A court could plausibly differentiate binary and gender-neutral pronouns from neopronouns on the argument that the former are widely used, while the latter are not. Put as such, neopronouns require the speaker or author to learn a completely new set of pronouns; binary and gender-neutral pronouns do not.Show More However, insofar as we credit the justification, Varner doesn’t even attempt to provide a convincing explanation why doing so would be undesirable. Surely, particularly during the present polarized times, most would agree that more respectful conduct by courts—and wider society—should be welcomed, rather than derided.

Even setting that issue aside, there is another. Much of the argument’s persuasiveness hinges on an empirically unsubstantiated prediction: Scores of non-binary litigants, using neopronouns, entering the legal system and requiring judges to learn and employ a litany of new pronouns. Yet, most studies suggest gender expansive persons account for less than 1 percent of the adult population25 25.SeeAndrew R. Flores et al., How Many Adults Identify as Transgender in the United States? 2 (Jun. 2016) (concluding transfolk account for 0.6% of the adult population).Show More and, of these, only 4-6 percent of trans individuals use neopronouns.26 26.See Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey 49-50 (2016) (finding only 29% of the 27,700+ trans respondents used they/them/their pronouns, 2% used ze/hir pronouns, and a mere 4% used neopronouns).Show More Thus, the chances of a judge actually overseeing a case that includes a trans litigant who uses neopronouns are borderline nonexistent. Quite tellingly, there are almost as many judicial opinions decrying the use of neo and gender-neutral pronouns, as there are cases with trans litigants actually requesting courts use them.27 27.Compare Bostock v. Clayton County at 1782 (Alito, J., dissenting), andVarner, 948 F.3d 257, with SAI v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 249 (D.D.C. 2018) (using the gender neutral they/them) andDoe v. Fedcap Rehab. Servs., 2018 U.S. Dist. LEXIS 71174 at *1 (S.D.N.Y. 2018) (same), andHenderson v. Minnesota, 2019 U.S. Dist. LEXIS 228230 at *2 n.2 (D. Minn. 2019).Show More

Last, to justification (6). The account claims that “no authority supports the proposition that we may require litigants, judges, court personnel, or anyone else to refer to gender-dysphoric litigants with pronouns matching their subjective gender identity.”28 28.Varner, 948 F.3d 250, 254–55 (5th Cir. 2020).Show More Going further, the court stated that “sometimes” federal courts have used gender-appropriate language, but the ones who have “have done so purely as a courtesy to parties. . . . None has adopted the practice as a matter of binding precedent, and none has purported to obligate litigants or others to follow the practice.”29 29.Id.at 255 (emphasis added).Show More

The justification is wrong thrice over. First, in direct contrast to the claim that no authority supports prohibiting misgendering, the Model Code of Judicial Conduct and the Code of Conduct for United States Judges both obligate judges to require respectful and courteous conduct from litigants, lawyers, and court staff.30 30.See Code of Conduct for United States Judges Canon 3(A)(3) (2019); Model Code Of Judicial Conduct Canon 2 r. 2.8(B) (Am. Bar Ass’n 2020).Show More Given that misgendering is, in fact, incredibly disrespectful and discourteous, it would seem the regulations apply. Second, the statement that no courts have obligated persons to use gender appropriate language or avoid misgendering is misrepresentative. Courts have done just that.31 31.E.g., Lynch v. Lewis, 2014 U.S. Dist. LEXIS 63111, at *4 n.3 (M.D. Ga. Mar. 24, 2014) (granting in part a trans plaintiff’s “Motion for Feminine Form of Address and Use of Female Pronouns” requiring defense use female pronouns in court and filings); Qz’Etax v. Ortiz, 170 Fed. App’x. 551, 553 (10th Cir. 2006) (upholding pro se trans appellant’s “motion for the continued usage of proper female pronouns”).Show More Third, the remark that “federal courts sometimes choose to refer to” trans parties with gender-appropriate language can be interpreted in at least one of two ways. “Sometimes,” suggests either that (i) the actual number of opinions using gender-appropriate/misgendering language is immeasurable; or (ii) only a minority of courts respect trans parties by using gender-appropriate language.

I’ve done the math. Both suggestions are misleading. Reviewing all cases involving transgender parties and discussions of pronouns from 1979 to 2018, yields a total of 335 cases.32 32.See Chan Tov McNamarah, Language Use in Cases Involving Trans Parties, 1979–2018, (unpublished manuscript on file).Show More From there, considering the language used when referring to the trans party, whether appropriate (i.e., uses titles and pronouns in-line with their current sex), misgendering (i.e., uses titles and pronouns at odds with their current sex), inconsistent (i.e., uses language both in-line and at odds with parties’ current sex) finds the overwhelming majority of courts defer to the gendered language of the trans party: Of the 335 cases, 282 or 84.17 percent use gender appropriate language. 33 33.The other results: 39 misgender trans parties (11.64%), 5 use inconsistent language (1.49%), and in 9 references the parties’ gender—and thus pronouns—are unclear (2.68%). Id.Show More Only some 8.5 percent misgender trans litigants. Thus, Varner’s final attempted defense also fails on the facts.

C. United States v. Thomason’s Arguments

In Thomason, the Eighth Circuit considered Shawn Kelly Thomason’s appeal from a sentence of a three-year term of supervised release.34 34.Thomason, 2021 U.S. App. LEXIS 7552 (8th Cir. Mar. 16, 2021).Show More Among their five other arguments, Thomason alleged prosecutorial misconduct based on the prosecutor’s use of masculine pronouns and labels (e.g., “gunman” and “boyfriend”) at trial.35 35.Id.at *5.Show More The Eighth Circuit rejected Thomason’s appeal, and while doing so, misgendered them on two bases: (7) to be “consistent with the proceedings in the district court”; and (8) for the sake of “clarity.”36 36.Id. at *6.Show More

Neither of these arguments holds water. Justification (7) appeals to consistency, the idea being that, once a lower court addresses a litigant in one way, appellate courts are bound to do the same. When pressed, the reasoning doesn’t work. Accepting that appellate courts are bound by factual determinations from below, the argument collapses because the lower court did not make—nor purport to make—a determination of Thomason’s sex. Further, insofar as the justification’s underpinning concern is that readers need to consistently identify Thomason over the course of multiple opinions, a note stating that in previous litigation the litigant was referred to by male pronouns but that the present opinion uses the gender-neutral pronouns, suffices.37 37.The rationale also ignores the number of appellate courts that have used gender-appropriate language, despite district courts in earlier proceedings misgendering litigants. Compare, e.g., Farmer v. Moritsugu, 742 F. Supp. 525, 526 (W.D. Wisc. 1990) (misgendering Dee Farmer), withFarmer v. Haas, 990 F.2d 319, 320 (7th Cir. 1993) (“Farmer prefers the female pronoun and we shall respect her preference”).Show More

Clarity does not convince either. To support justification (8), the opinion charged “[a]s the filings in this case illustrate, clarity suffers and confusion may follow when legal writing refers to a single individual as ‘they,’ especially when the materials advert to other actors who are naturally described as ‘they’ or ‘them’ in the traditional plural.”38 38.Thomason, 2021 U.S. App. LEXIS 7552at *6.Show More

The final defense overestimates any potential confusion and doubly underestimates readers. As a matter of fact, the gender-neutral “they” is quite widely used and understood.39 39.Cf. generallyDarren K. LaScotte, Singular They: An Empirical Study of Generic Pronoun Use, 91 Am. Speech 62 (2016); Evan D. Bradley, The Influence of Linguistic and Social Attitudes on Grammaticality Judgments of Singular ‘They,’ 78 Lang. Sci. 1, 1 (2020); Laura Louise Paterson, Epicene Pronouns in UK National Newspapers: A Diachronic Study, 35 ICAME J. 171 (2011).Show More And, to concerns about confusion, the countless opinions using they/them pronouns for non-binary parties or for parties whose gender is unknown, forcefully demonstrate that skillful drafting provides countless ways to minimize uncertainty.40 40.Chanticleer Holdings Inc., 2020 NLRB LEXIS 72, at *8 (Nat’l Lab. Rels. Bd. Feb. 19, 2020).Show More The opinion could easily use names instead of third-person language, or again, explicitly alert readers that the litigant uses gender-neutral pronouns. Seen as such, Thomason’s last defense also succumbs to reason.

* * *

Tallied up, the justifications offered by Gibson, Varner, and Thomason don’t appear to succeed.

II. Of Courtesy: One Case Against Misgendering in Judicial Writing

As we know, in Bostock the Supreme Court considered whether it violated Title VII for an employer to terminate a worker for being gay or transgender. And, as we know, the Court found it did. While doing so, the Court referred to one plaintiff, Aimee Stephens, with the appropriate pronouns and honorific.

At least three characteristics call us to view this choice as meaningful. First, as previously mentioned, the Court has never before used the appropriate language in a majority opinion. Second is the deliberateness inherent in writing; in judicial writing especially, very little is left to chance. Third, and perhaps most tellingly, several amici flagged the issue of gender-appropriate language prior to the holding. Trans-antagonistic briefs went as far as to counsel the Court to misgender Ms. Stephens, or else “un-gender”41 41.“To ‘ungender’ . . . involves the asymmetrical use of gendered titles, terms, or pronouns for cisgender people but not for gender-diverse ones. It may also involve the deliberate use of gender-neutral language where the referent explicitly” makes their gender known. Chan Tov McNamarah, Misgendering, 109 Cal. L. Rev. 101, 127 (2021).Ungendering is discriminatory because it involves disparate withholding of acknowledgement and respect from gender minorities, while offering it to cisgender persons—akin to historical examples of the refusal to use honorifics when addressing or referring to Black persons, or professional titles for women, while offering them to white persons and men, respectively. Id. at 128.Show More her by referring to her with no pronouns or titles at all.42 42.SeeBrief of Free Speech Advocates in Support of Petitioner at 2, R.G. & G.R. Harris Funeral Homes v. Equal Emp. Opportunity Comm’n, No. 18-107 (U.S. Aug. 22, 2019) (stating the “Court should either follow the Farmer model and simply refer to ‘Stephens’ or ‘respondent,’ or else . . . employ pronouns as they have been used since the dawn of language, namely, to refer to the biological sex of a person.”).Centuries of male generics used in reference for women or mixed-sex groups render the latter half of the brief’s reasoning historically inaccurate.Show More That the Court chose to ignore such counsel, again, suggests using the appropriate language in references to Ms. Stephens cannot be cast aside as a mistake or oversight.

But Bostock otherwise leaves us wanting for an explanation. In other words: What, precisely, justifies the Court’s choice to use gender-appropriate language? This Part presents one possibility, relying on the principles of courtesy Varner cavalierly cast aside, and Gibson and Thomason failed to consider altogether.

A. The Institutionally Protective Qualities of Judicial Courtesy

Most would agree that courteous conduct is important. At surface level, courtesy helps everyday life and interpersonal interactions go smoothly. At a deeper level, courtesy promotes social order and peace,43 43.Susan Burgess, Outing Courtesy: The Role of Rude Dissent in Rule of Law Systems, 38 L. & Soc. Inquiry 206, 207 (2013) (writing courtesy “facilitates interpersonal exchange and fosters social peace despite small or even great differences that arise in the course of everyday life.”); David McPherson, Manners and the Moral Life, inThe Theory and Practice of Virtue Education (2018) (arguing courtesy helps “social life to go well”).Show More and courtesy is a means of expressing our moral commitments to respect the equality and dignity of our fellow persons.44 44.Sarah Buss, Appearing Respectful: The Moral Significance of Manners, 109 Ethics 795, 796–97 (1999).Show More By some accounts, courtesy even aids in the preservation of democracy. On Justice Gorsuch’s telling, a functional democracy “turns on our treating each other as equals—as persons, with the courtesy and respect each person deserves—even when we vigorously disagree.”45 45.Neil M. Gorsuch, A Republic, If You Can Keep It 31 (2019).Show More

Courtesy is crucial at an institutional level as well. The modern civility movement has forcefully made the case that attorney courtesy and professionalism serve to preserve and enhance the legal system’s reputation in the eyes of the public.46 46.See Josh O’Hara, Creating Civility: Using Reference Group Theory to Improve Inter-Lawyer Relations, 31 Vermont L. Rev. 965, 968 (2007) (describing costs of lawyer incivility and the movement’s development in response to incivility); Kathleen P. Browe, A Critique of the Civility Movement: Why Rambo Will Not Go Away, 77 Marq. L. Rev. 751, 752–57 (1994) (detailing the history of lawyer civility efforts, and the harms of lawyer incivility).Show More

The same is even more true of judges. As the primary representatives of the law, judges have a duty to maintain “the perceived integrity of the Court.”47 47.Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107, 1125 (1995); cf Liteky v. United States, 510 U.S. 540, 565 (1994) (“In matters of ethics, appearance and reality often converge as one.”).Show More That is why, time and again, the Supreme Court and individual Justices have emphasized the necessity of judicial temperaments of patience, tolerance, and respect. To take just one example, the Court in in re Snyder emphasized that “[a]ll persons involved in the judicial process—judges, litigants, witnesses, and court officers—owe a duty of courtesy to all other participants.”48 48.In re Snyder, 472 U.S. 634, 647 (1985).Show More

This commentary gestures towards a conclusion, that I will make plain below: judicial courtesy serves several institutionally preservative functions and, because of these functions, it is imperative that judges maintain a courteous tone in their writing.

The functions are these. For one, judicial courtesy has practical benefits. When opinions are courteous, they avoid distracting from the underlying legal reasoning,49 49.Randall T. Shepard, The Special Professional Challenges of Appellate Judging, 35 Ind. L. Rev. 381, 389 (2002) (“Venomous language obscures the law . . .”).Show More and undercutting the judiciary’s most fundamental function: saying what the law is. Simultaneously, courteous opinions avoid spurring satellite disputes, which place additional pressure on the already overburdened court system.50 50.Following the Varner decision numerous amici joined appeal, specifically taking issue with the opinion’s egregious language. The time taken—both for the brief writers and for the appellate courts to sift through the briefs—could have easily been avoided.Show More On a final practical note, judicial courtesy invites advocate courtesy as well. Judges, through both their in-court conduct and opinion writing, set the tone from the top.51 51.SeeErwin Chemerinsky, The Jurisprudence of Justice Scalia: A Critical Appraisal, 22 U. Haw. L. Rev. 385, 386 (2000); J. Lyn Entrikin, Disrespectful Dissent: Justice Scalia’s Regrettable Legacy of Incivility, 18 J. App. Practice & Process 201, 263 (2017).Show More Discourteous writing, can contribute to, if not fuel, attorney incivility and the attendant problems it causes.52 52.In the aftermath of Varner attorneys have repeatedly cited the opinions to justify their own offensive misgendering in filings. E.g., Brief of Amicus Curiae Women’s Liberation Front in Support of Appellants and Reversal at 34–35, Hecox v. Little, 20-35813 (9th Cir. Nov. 19, 2020); Reply Memorandum in Support of Plaintiff’s Motion to Disqualify at 5, Soule v. Connecticut Assoc. Schools, 3:20-cv-00201-RNC (D. Conn. June 12, 2020).Show More

For two, courtesy advances the institutional goal of administering justice. Obviously, litigants are not likely to partake in processes in which they believe they will be disrespected.53 53.Brief of 83 Legal Ethics Professors as Amici Curiae in Support of Rehearing En Banc at 10, United States v. Varner, No. 19-40016 (5th Cir. 2020).Show More When opinions are discourteous, they increase the likelihood that persons will seek justice extrajudicially, rather than by invoking the judicial process. As such, judicial courtesy contributes to social order.

For three, courtesy avoids sanctioning societal oppression, thereby preserving public trust in the judiciary. Given the authority accorded to courts, when their members use discourteous language particularly towards minority group members, they provide cover for others to be discourteous as well. To see this point in action, consider that, following Varner, the appellant experienced “an increase in verbal and emotional abuse from prison officials and from fellow prisoners who . . . used the majority’s opinion as justification for their mockery.”54 54.Petition for Rehearing En Banc at 11, United States v. Varner, 948 F.3d 250 (5th Cir. 2020).Show More Courteous language avoids the appearance of judicial approval of discrimination.55 55.Cf.Code of Conduct for U.S. Judges Canon 2 cmt. (Am. Bar Ass’n 2019) (“[P]ublic manifestation by a judge of the judge’s knowing approval of invidious discrimination on any basis gives the appearance of impropriety . . . and diminishes public confidence in the integrity and impartiality of the judiciary.”).Show More Since faith in institutions is eroded where citizens view them as furthering oppression, judicial courtesy is important, as it avoids any diminution of public trust.56 56.Cf. Judge Vanessa Ruiz, The Role of Women Judges and a Gender Perspective in Ensuring Judicial Independence and Integrity, UNODC (n.d.), https://www.unodc.org/‌dohadeclaration/‌en/news/2019/01/the-role-of-women-judges-and-a-gender-perspective-in-ensuring-judicial-independence-and-integrity.html [https://perma.cc/L687-PKZC] (“The judiciary will not be trusted if it is viewed as a bastion of entrenched elitism, exclusivity, and privilege, oblivious to changes in society and to the needs of the most vulnerable. Indeed, citizens will find it hard to accept the judiciary as the guarantor of law and human rights if judges themselves act in a discriminatory manner.”).Show More

For four, courtesy preserves public confidence in the courts. The idea that the judiciary is honorable remains “indispensable to justice in our society.”57 57.Code of Conduct for U.S. Judges Canon 1 (Am. Bar Ass’n 2019).Show More A part of that confidence is maintained through judges’ conduct. 58 58.Leslie W. Abramson, Canon 2 of the Code of Judicial Conduct, 79 Marq. L. Rev. 949, 951 (1996) (“The public has confidence in judges who show character, impartiality, and diligence.”).Show More Understandably, the public has more confidence in, and views more favorably, a judge whose behaviors evidence a commitment to fairness and equality. And, as the main source of court-citizen contact, opinions are read to stand for the values of the judges who write them. Thus, courteous opinions shore up our faith in the judiciary.

For five, judicial courtesy maintains the appearance of impartial and principled judgement, and in doing so preserves the courts’ legitimacy.59 59.Brief of Amici Curiae Civil Rights Organizations in Support of Appellant’s Petition for Rehearing En Banc at 8, United States v. Varner, No.19-40016 (5th Cir. 2020) (“[R]efusal to respect a party’s self-identity . . . can suggest bias and call into question whether the litigant received a fair hearing.”); Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107, 1126(1995) (documenting “the view that public officials generally have a duty to maintain an appropriate appearance in order to foster the public trust necessary to their role . . .”).Show More Having “neither sword nor purse,” the judiciary relies on its institutional legitimacy to effectuate compliance.60 60.The Federalist No. 78 (Alexander Hamilton).Show More Discourteous writing threatens this, by raising questions of judicial bias and personal hostility, whether or not they actually exist.61 61.Liteky v. United States, 510 U.S. 540, 565 (1994) (“In matters of ethics, appearance and reality often converge as one.”).Show More Judicial courtesy, therefore, safeguards the legitimacy of the court by avoiding the cast of suspicion on holdings in individual cases,62 62.Joshua E. Kastenberg, Evaluating Judicial Standards of Conduct in the Current Political and Social Climate: The Need to Strengthen Impropriety Standards and Removal Remedies to Include Procedural Justice and Community Harm, 82 Albany L. Rev. 1495, 1506 (2019) (“In situations in which a judge has evidenced overt bias or lack of respect against an identifiable group . . . the judge may cause the result of his or her trials to be suspect”).Show More and on the legal system on the whole.

Viewed thusly, judicial courtesy serves purposes that Varner’s dismissive account clearly misses. Courteous opinions have several practical benefits in addition to promoting the administration of justice, and preserving public confidence and trust in the judiciary, and bolstering the legitimacy of the courts as an institution.

Weighed alongside the laxity of the defenses outlined in the above Part, the answer to how courts should address gender diverse parties appears straightforward. Given that their role inherently requires judges to preserve the courts as an institution, they must strive to be courteous. Judges, therefore, should address trans litigants by their appropriate names, pronouns, and honorifics in legal opinions.

B. A Probable Counter: Misgendering as a Not Discourteous Acknowledgement of “Objective Truth”

This final Section closes the Essay by preempting a likely objection to my notes on the implications of judicial courtesy for misgendering in legal opinions. The argument is that using language corresponsive to genitals or sex-assigned-at-birth is an acknowledgement of “objective truth,” such that, even if judges do owe a duty of courtesy that instructs them to avoid offensive language, misgendering would not qualify.

The protestation has recently been gaining traction. Repeatedly, advocates for anti-transgender positions have couched their misgendering in claims about objective, unimpeachable truths.63 63.See, e.g., Brief of Great Lakes Justice Center as Amicus Curiae in Support of Petitioner at 6, R.G. & G.R. Harris Funeral Homes v. v. Equal Emp. Opportunity Comm’n., No. 18-107 (U.S. Aug. 21, 2019) (claiming sex is “an objective reality” and “immutable, innate, and a biological truth.”); Brief of Amicus Curiae Dr. Paul R. McHugh, M.D., in Support of Petitioner at 4, Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. Jan. 10, 2017) (claiming sex is an “objective biological reality”).Show More For instance, in a recent motion to intervene in Hecox v. Little, attorneys for the anti-LGBT group Alliance Defending Freedom alleged that their misgendering was “neither said nor intended [to be] discourteous,” but instead was a statement of “necessary accuracy.”64 64.Reply Memorandum in Support of Motion to Intervene at 8, Hecox v. Little, 1:20-cv-00184-CWD (D. Idaho June 16, 2020) (arguing “to speak coherently about the goals, justifications, and validity of the Fairness in Women’s Sports Act, it is necessary rather than ‘uncivil’ to” misgender).Show More With the increasing popularity of the same and similar excuses, it is worth considering how the objection would play out in the context of court opinions.

In this case, as in others, the objection is unconvincing. Without conceding that there is any confirmable “objective truth” involved, at the most basic level, the objection mistakenly relies on the premise that by virtue of being true, a statement is rendered acceptable. Obviously, that isn’t right. Quite often, the truth hurts. And, regularly, tact calls us to avoid making truthful statements when doing so will disparage.

In particular, it is clear that misgendering easily qualifies as discourteous conduct. A concrete illustration will help make this plain. Suppose upon marriage a woman chooses not to publicly adopt her partner’s name. Instead, she uses her pre-marital name, along with the title “Ms.” rather than “Mrs.” In that scenario, for someone who knows her decision to insist on using “Mrs.” and referring to her by her spouse’s last name—or worse, with the convention, Mrs. Partner’s Name—would, quite clearly, be wrong. As would choosing to disparately refer to her by her first name, while using last names and titles for others, in an effort to avoid acknowledging the woman’s appropriate forms of address. In either case, the speaker’s references serve to treat the woman in a manner she has made known she dislikes, in addition to willfully ignoring the choices the woman has made for herself, disregarding her autonomy, and frustrating her asserted identity. For these and other reasons, we can agree those forms of address would be disrespectful, and perhaps even insulting. Misgendering, whether considered “objectively true” or not, is discourteous on the same logic.65 65.For a more extensive analysis of why misgendering is discourteous, offensive, discriminatory, and harmful, see McNamarah, supranote 40, at 131–60.Show More

At the same time, the objection assumes misgendering is the only means of capturing the “truth.” That reasoning is lacking. As we know, sometimes, courtesy requires us to use euphemisms without changing our point. It is quite possible to cut to the heart of the same matter in both offensive and non-offensive ways. If courts need to make a point differentiating between or specifying cisgender and transgender persons the language “cisgender” and “transgender” accomplishes just that.

Finally, the argument takes as given that the context and timing of the purported “truth” are meaningless. Again, that is false. Speaking what one views to be an “objective truth” may be appropriate in one situation, and inappropriate in another. This is particularly true for decisionmakers. Recall that in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court reasoned that a Commissioner’s statements that “religion has been used to justify all kinds of discrimination throughout history,” was evidence of anti-religious animus.66 66.Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1729 (2018).Show More

Yet, the Commissioner’s statements were ones of fact: objective truths, if you will. After all, countless forms of discrimination and oppression have advanced and been defended on religious grounds.67 67.Examples come easily. To take just one, anti-Black discrimination in American history, from enslavement to Jim Crow segregation and anti-miscegenation laws, has benefited from religious cover. SeeLeora F. Eisenstadt, Enemy and Ally: Religion in Loving v. Virginia and Beyond, 86 Ford. L. Rev. 2659, 2660–63 (2018); Kyle C. Velte, Recovering the Race Analogy in LGBTQ Religious Exemption Cases, 42 Cardozo L. Rev. 67, 74–76 (2020).Show More Strikingly, however, it was not the veracity of the statements that struck the Masterpiece Court as improper. Though the Commissioner’s statements were categorically true, it was the timing of the opinions that was inappropriate. If Masterpiece means anything, it is that the context of the purported “truths”—rather than their accuracy or reliability—which is the dispositive factor in determining when decisionmakers’ statements demonstrate bias. Accordingly, regardless of how “objectively true” one might view misgendering language to be, the context and timing makes it inappropriate for legal opinions.

Conclusion

The language judges use matters. No matter how insignificant the choice of words may seem, legal opinions send important messages about which citizens are respected, and how we should treat others. Recently, apparently ignoring those principles, judges have offered several reasons to justify their misgendering of gender diverse parties in their legal writing.

The arguments don’t work. As demonstrated, of the eight defenses of judicial misgendering examined here, most suffer from explanatory deficiencies, several are implausible, others misconstrue case law, and none are particularly convincing. Rather than giving unsound arguments in defense of their language, courts should instead remember the institutionally-protective qualities of judicial courtesy. Doing so finds courtesy calls courts to use gender appropriate forms of address in their written opinions.

  1. * Independent; J.D., Cornell Law School; B.A., Franklin & Marshall College. They/them pronouns. Thanks to Monty Zimmerman for early feedback, and to the participants in the 2021 Cornell Law School faculty summer workshop series, whose comments on a companion piece helped shaped my thoughts on this one as well. Many thanks also to the Virginia Law Review Online team, whose excellent editorial work made the Essay substantially better.

    This Essay builds upon and rounds out ideas introduced in prior work. See Chan Tov McNamarah, Misgendering as Misconduct, 68 UCLA L. Rev. Disc. 40 (2020); Chan Tov McNamarah, Misgendering, 109 Cal. L. Rev. 2227 (2021).

  2. 140 S.Ct. 1731 (2020) (holding that Title VII’s prohibition against sex discrimination in employment applies to gay and transgender individuals).
  3. E.g., Rachel Slepoi, Bostock’s Inclusive Queer Frame, 107 Va. L. Rev. Online 67, 67-68, 82 (2020) (explaining the case’s inclusive account of sex-based discrimination, and underscoring the import for trans discrimination case law moving forward); Guha Krishnamurthi & Peter Salib, Bostock and Conceptual Causation, Yale J. Reg. Notice & Comment (July 22, 2020), https://www.yalejreg.com/nc/bostock-and-conceptual-causation-by-guha-krishnamurthi-peter-salib/ [https://perma.cc/WU2G-QZZV](using the case as a case study to tease out issues of multifactorial causation in antidiscrimination jurisprudence).
  4. Compare Adam Liptak, Civil Rights Law Protects Gay and Transgender Workers, Supreme Court Rules, N.Y. Times (June 15, 2020), https://www.nytimes.com/2020/‌06/15/us/gay-transgender-workers-supreme-court.html [https://perma.cc/9NFA-URBN] (summarizing celebration of the holding), with Hadley Arkes, A Morally Empty Jurisprudence, First Things (June 17, 2020), https://www.firstthings.com/web-exclusives/‌2020/06/a-morally-empty-jurisprudence [https://perma.cc/BH3Q-ZUEP] (calling the case “the Roe v. Wade for transgenderism [sic], with effects that will ripple out widely in our country, touching and disfiguring our private lives.”).
  5. Unsurprisingly, trans-antagonistic commentators have, however, been more wont to notice this. E.g., Ed Whelan, Bostock Majority: A ‘Trans Woman’ Is Not a Woman, Nat’l Rev. (June 18, 2020), https://www.nationalreview.com/bench-memos/bostock-majority-a-trans-woman-is-not-a-woman/ (lamenting the Court’s “parrot[ing] . . . the rhetoric of transgender ideology” and calling the opinion’s reasoning “deeply unsound.”).
  6.  E.g., Burt v. Titlow, 571 U.S. 12 (2013) (using the gender neutral “respondent” throughout); Farmer v. Brennan, 511 U.S. 825 (1994) (using the gender neutral “petitioner” throughout).
  7. 920 F.3d 212 (5th Cir. 2019).
  8. 948 F.3d 250 (5th Cir. 2020).
  9. 991 F.3d 910 (8th Cir. 2021).
  10. 948 F.3d at 255.
  11. United States v. Pinson, 835 F. App’x. 390 (10th Cir. 2020) (adopting gender appropriate language for trans litigant); accord United States v. Rivera, 824 F. App’x. 930 (11th Cir. 2020); accord Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020); accord Jackson v. Kuepper, 813 F. App’x. 230 (7th Cir. 2020); Gomez-Ortega v. Barr, 804 F. App’x. 738 (9th Cir. 2020); accord Arrivillaga v. Att’y Gen. United States, 811 F. App’x. 756 (3d Cir. 2020).
  12. Before evaluating the justifications, a short caveat is probably in order. In engaging with the arguments, I will set aside the authoring judges’ alleged histories of anti-LGBT positions and even overt transphobia. See, e.g., 39 LGBT Groups Oppose Confirmation of Stuart Kyle Duncan, Lambda Legal (Jan. 17, 2018), https://www.lambdalegal.org/in-court/legal-docs/dc_20180117_opposition-of-stuart-kyle-duncan [https://perma.cc/S9QD-XAD4]; Lambda Legal Letter of Concern About the Nomination of James Ho, Lambda Legal (Dec. 6, 2017), https://www.lambdalegal.org/in-court/legal-docs/dc_20171206_letter-of-concern-about-james-ho [https://perma.cc/KRW3-NSMK]; Lisa Keen, A Look at the LGBT Records of Trump’s Potential Court Picks, Bay Area Reporter (May 25, 2016), https://www.ebar.com/news///246311 [https://perma.cc/B792-RTMZ].

    I will assume that, while reviewing the cases before them, the judges set those histories aside as well.

  13. 920 F.3d at 217.
  14. Id. (citing Frontiero v. Richardson, 411 U.S. 677, 686 (1973)).
  15. See Konitzer v. Frank, 711 F. Supp. 2d., 874, 912 (E.D.Wis. 2010) (finding referring to an inmate by her correct pronouns “does not appear to impinge on any . . . security issues.”).
  16.  Recent Case: Gibson v. Collier, Harv. L. Rev. Blog (Apr. 12, 2019), https://blog.harvardlawreview.org/recent-case-_gibson-v-collier_/ [https://perma.cc/W37M-JEAA] (noting that the opinion “cit[ed] Frontiero out of context”).
  17. See Chan Tov McNamarah, Misgendering as Misconduct, 68 UCLA L. Rev. Disc. 40, 52 (2020).
  18. Gibson, 920 F.3d at 217 n.2.
  19. See Brief for the Petitioner, R.G. & G.R. Harris Funeral Homes, No. 18-107, 8 (U.S. Aug. 16, 2019) (“Out of respect for Stephens and following this Court’s lead in Farmer v. Brennan [citation omitted], Harris tries to avoid use of pronouns and sex-specific terms when referring to Stephens.”); Amicus Brief of Free Speech Advocates in Support of Petitioner at 2, R.G. & G.R. Harris Funeral Homes, No. 18-107, 2 (U.S. Aug. 22, 2019) (“In Farmer v. Brennan, a case involving a ‘transsexual’ prisoner ‘who is biologically male,’ this Court’s eight-Justice majority opinion, authored by Justice Souter, scrupulously (and presumably intentionally) avoided all pronouns in referring to the prisoner (except when directly quoting other sources) [citations omitted].”).
  20. See Ezra Ishmael Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, 11 Cal. L. Rev. Online 9, 33-34 (2020) (analyzing oral argument transcript).
  21. 948 F.3d at 252 (5th Cir. 2020).
  22. Id. at 253.
  23. To be clear, I think that an opinion using misgendering language differs from one mentioning or quoting it. See Paul Saka, Quotation and the Use-Mention Distinction, 107 Mind 113 (1998). To see the difference, imagine a discrimination case where the court is quoting misgendering language as proof of bias or prejudice. I could be convinced that there might be good reason to quote exactly what was said to aid the reader fully grasp the nature of the discriminatory context, at least with an inserted “sic.” See McNamarah, supra note 16, at 60–61 (using that convention).

    Alternatively, the court could use the parenthetical “misgendering in original” after the citation, to distance itself from the language. See, e.g., Lihi Yona & Ido Katri, The Limits of Transgender Incarceration Reform, 31 Yale J.L. & Feminism 201, 212 n.39 (2020) (using that convention).

  24. Even that approach, though, would be problematic unless the court used gender-neutral references for all parties, rather than singling out gender diverse ones.
  25. The slope needn’t be slippery. For the sake of argument: A court could plausibly differentiate binary and gender-neutral pronouns from neopronouns on the argument that the former are widely used, while the latter are not. Put as such, neopronouns require the speaker or author to learn a completely new set of pronouns; binary and gender-neutral pronouns do not.
  26. See Andrew R. Flores et al., How Many Adults Identify as Transgender in the United States? 2 (Jun. 2016) (concluding transfolk account for 0.6% of the adult population).
  27. See Sandy E. James et al., The Report of the 2015 U.S. Transgender Survey 49-50 (2016) (finding only 29% of the 27,700+ trans respondents used they/them/their pronouns, 2% used ze/hir pronouns, and a mere 4% used neopronouns).
  28. Compare Bostock v. Clayton County at 1782 (Alito, J., dissenting), and Varner, 948 F.3d 257, with SAI v. Transp. Sec. Admin., 315 F. Supp. 3d 218, 249 (D.D.C. 2018) (using the gender neutral they/them) and Doe v. Fedcap Rehab. Servs., 2018 U.S. Dist. LEXIS 71174 at *1 (S.D.N.Y. 2018) (same), and Henderson v. Minnesota, 2019 U.S. Dist. LEXIS 228230 at *2 n.2 (D. Minn. 2019).
  29. Varner, 948 F.3d 250, 254–55 (5th Cir. 2020).
  30. Id. at 255 (emphasis added).
  31. See Code of Conduct for United States Judges Canon 3(A)(3) (2019); Model Code Of Judicial Conduct Canon 2 r. 2.8(B) (Am. Bar Ass’n 2020).
  32. E.g., Lynch v. Lewis, 2014 U.S. Dist. LEXIS 63111, at *4 n.3 (M.D. Ga. Mar. 24, 2014) (granting in part a trans plaintiff’s “Motion for Feminine Form of Address and Use of Female Pronouns” requiring defense use female pronouns in court and filings); Qz’Etax v. Ortiz, 170 Fed. App’x. 551, 553 (10th Cir. 2006) (upholding pro se trans appellant’s “motion for the continued usage of proper female pronouns”).
  33. See Chan Tov McNamarah, Language Use in Cases Involving Trans Parties, 1979–2018, (unpublished manuscript on file).
  34. The other results: 39 misgender trans parties (11.64%), 5 use inconsistent language (1.49%), and in 9 references the parties’ gender—and thus pronouns—are unclear (2.68%). Id.
  35. Thomason, 2021 U.S. App. LEXIS 7552 (8th Cir. Mar. 16, 2021).
  36. Id. at *5.
  37. Id. at *6.
  38. The rationale also ignores the number of appellate courts that have used gender-appropriate language, despite district courts in earlier proceedings misgendering litigants. Compare, e.g., Farmer v. Moritsugu, 742 F. Supp. 525, 526 (W.D. Wisc. 1990) (misgendering Dee Farmer), with Farmer v. Haas, 990 F.2d 319, 320 (7th Cir. 1993) (“Farmer prefers the female pronoun and we shall respect her preference”).
  39. Thomason, 2021 U.S. App. LEXIS 7552 at *6.
  40. Cf. generally Darren K. LaScotte, Singular They: An Empirical Study of Generic Pronoun Use, 91 Am. Speech 62 (2016); Evan D. Bradley, The Influence of Linguistic and Social Attitudes on Grammaticality Judgments of Singular ‘They,’ 78 Lang. Sci. 1, 1 (2020); Laura Louise Paterson, Epicene Pronouns in UK National Newspapers: A Diachronic Study, 35 ICAME J. 171 (2011).
  41. Chanticleer Holdings Inc., 2020 NLRB LEXIS 72, at *8 (Nat’l Lab. Rels. Bd. Feb. 19, 2020).
  42. “To ‘ungender’ . . . involves the asymmetrical use of gendered titles, terms, or pronouns for cisgender people but not for gender-diverse ones. It may also involve the deliberate use of gender-neutral language where the referent explicitly” makes their gender known. Chan Tov McNamarah, Misgendering, 109 Cal. L. Rev. 101, 127 (2021).

    Ungendering is discriminatory because it involves disparate withholding of acknowledgement and respect from gender minorities, while offering it to cisgender persons—akin to historical examples of the refusal to use honorifics when addressing or referring to Black persons, or professional titles for women, while offering them to white persons and men, respectively. Id. at 128.

  43. See Brief of Free Speech Advocates in Support of Petitioner at 2, R.G. & G.R. Harris Funeral Homes v. Equal Emp. Opportunity Comm’n, No. 18-107 (U.S. Aug. 22, 2019) (stating the “Court should either follow the Farmer model and simply refer to ‘Stephens’ or ‘respondent,’ or else . . . employ pronouns as they have been used since the dawn of language, namely, to refer to the biological sex of a person.”).

    Centuries of male generics used in reference for women or mixed-sex groups render the latter half of the brief’s reasoning historically inaccurate.

  44. Susan Burgess, Outing Courtesy: The Role of Rude Dissent in Rule of Law Systems, 38 L. & Soc. Inquiry 206, 207 (2013) (writing courtesy “facilitates interpersonal exchange and fosters social peace despite small or even great differences that arise in the course of everyday life.”); David McPherson, Manners and the Moral Life, in The Theory and Practice of Virtue Education (2018) (arguing courtesy helps “social life to go well”).
  45. Sarah Buss, Appearing Respectful: The Moral Significance of Manners, 109 Ethics 795, 796–97 (1999).
  46. Neil M. Gorsuch, A Republic, If You Can Keep It 31 (2019).
  47. See Josh O’Hara, Creating Civility: Using Reference Group Theory to Improve Inter-Lawyer Relations, 31 Vermont L. Rev. 965, 968 (2007) (describing costs of lawyer incivility and the movement’s development in response to incivility); Kathleen P. Browe, A Critique of the Civility Movement: Why Rambo Will Not Go Away, 77 Marq. L. Rev. 751, 752–57 (1994) (detailing the history of lawyer civility efforts, and the harms of lawyer incivility).
  48. Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107, 1125 (1995); cf Liteky v. United States, 510 U.S. 540, 565 (1994) (“In matters of ethics, appearance and reality often converge as one.”).
  49. In re Snyder, 472 U.S. 634, 647 (1985).
  50. Randall T. Shepard, The Special Professional Challenges of Appellate Judging, 35 Ind. L. Rev. 381, 389 (2002) (“Venomous language obscures the law . . .”).
  51. Following the Varner decision numerous amici joined appeal, specifically taking issue with the opinion’s egregious language. The time taken—both for the brief writers and for the appellate courts to sift through the briefs—could have easily been avoided.
  52. See Erwin Chemerinsky, The Jurisprudence of Justice Scalia: A Critical Appraisal, 22 U. Haw. L. Rev. 385, 386 (2000); J. Lyn Entrikin, Disrespectful Dissent: Justice Scalia’s Regrettable Legacy of Incivility, 18 J. App. Practice & Process 201, 263 (2017).
  53. In the aftermath of Varner attorneys have repeatedly cited the opinions to justify their own offensive misgendering in filings. E.g., Brief of Amicus Curiae Women’s Liberation Front in Support of Appellants and Reversal at 34–35, Hecox v. Little, 20-35813 (9th Cir. Nov. 19, 2020); Reply Memorandum in Support of Plaintiff’s Motion to Disqualify at 5, Soule v. Connecticut Assoc. Schools, 3:20-cv-00201-RNC (D. Conn. June 12, 2020).
  54. Brief of 83 Legal Ethics Professors as Amici Curiae in Support of Rehearing En Banc at 10, United States v. Varner, No. 19-40016 (5th Cir. 2020).
  55. Petition for Rehearing En Banc at 11, United States v. Varner, 948 F.3d 250 (5th Cir. 2020).
  56. Cf. Code of Conduct for U.S. Judges Canon 2 cmt. (Am. Bar Ass’n 2019) (“[P]ublic manifestation by a judge of the judge’s knowing approval of invidious discrimination on any basis gives the appearance of impropriety . . . and diminishes public confidence in the integrity and impartiality of the judiciary.”).
  57. Cf. Judge Vanessa Ruiz, The Role of Women Judges and a Gender Perspective in Ensuring Judicial Independence and Integrity, UNODC (n.d.), https://www.unodc.org/‌dohadeclaration/‌en/news/2019/01/the-role-of-women-judges-and-a-gender-perspective-in-ensuring-judicial-independence-and-integrity.html [https://perma.cc/L687-PKZC] (“The judiciary will not be trusted if it is viewed as a bastion of entrenched elitism, exclusivity, and privilege, oblivious to changes in society and to the needs of the most vulnerable. Indeed, citizens will find it hard to accept the judiciary as the guarantor of law and human rights if judges themselves act in a discriminatory manner.”).
  58. Code of Conduct for U.S. Judges Canon 1 (Am. Bar Ass’n 2019).
  59. Leslie W. Abramson, Canon 2 of the Code of Judicial Conduct, 79 Marq. L. Rev. 949, 951 (1996) (“The public has confidence in judges who show character, impartiality, and diligence.”).
  60. Brief of Amici Curiae Civil Rights Organizations in Support of Appellant’s Petition for Rehearing En Banc at 8, United States v. Varner, No.19-40016 (5th Cir. 2020) (“[R]efusal to respect a party’s self-identity . . . can suggest bias and call into question whether the litigant received a fair hearing.”); Deborah Hellman, The Importance of Appearing Principled, 37 Ariz. L. Rev. 1107, 1126 (1995) (documenting “the view that public officials generally have a duty to maintain an appropriate appearance in order to foster the public trust necessary to their role . . .”).
  61. The Federalist No. 78 (Alexander Hamilton).
  62. Liteky v. United States, 510 U.S. 540, 565 (1994) (“In matters of ethics, appearance and reality often converge as one.”).
  63. Joshua E. Kastenberg, Evaluating Judicial Standards of Conduct in the Current Political and Social Climate: The Need to Strengthen Impropriety Standards and Removal Remedies to Include Procedural Justice and Community Harm, 82 Albany L. Rev. 1495, 1506 (2019) (“In situations in which a judge has evidenced overt bias or lack of respect against an identifiable group . . . the judge may cause the result of his or her trials to be suspect”).
  64. See, e.g., Brief of Great Lakes Justice Center as Amicus Curiae in Support of Petitioner at 6, R.G. & G.R. Harris Funeral Homes v. v. Equal Emp. Opportunity Comm’n., No. 18-107 (U.S. Aug. 21, 2019) (claiming sex is “an objective reality” and “immutable, innate, and a biological truth.”); Brief of Amicus Curiae Dr. Paul R. McHugh, M.D., in Support of Petitioner at 4, Gloucester Cty. Sch. Bd. v. G.G., No. 16-273 (U.S. Jan. 10, 2017) (claiming sex is an “objective biological reality”).
  65. Reply Memorandum in Support of Motion to Intervene at 8, Hecox v. Little, 1:20-cv-00184-CWD (D. Idaho June 16, 2020) (arguing “to speak coherently about the goals, justifications, and validity of the Fairness in Women’s Sports Act, it is necessary rather than ‘uncivil’ to” misgender).
  66. For a more extensive analysis of why misgendering is discourteous, offensive, discriminatory, and harmful, see McNamarah, supra note 40, at 131–60.
  67. Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719, 1729 (2018).
  68. Examples come easily. To take just one, anti-Black discrimination in American history, from enslavement to Jim Crow segregation and anti-miscegenation laws, has benefited from religious cover. See Leora F. Eisenstadt, Enemy and Ally: Religion in Loving v. Virginia and Beyond, 86 Ford. L. Rev. 2659, 2660–63 (2018); Kyle C. Velte, Recovering the Race Analogy in LGBTQ Religious Exemption Cases, 42 Cardozo L. Rev. 67, 74–76 (2020).