Essay

Mail-In Ballots and Constraints on Federal Power Under the Electors Clause

Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. The Trump administration, nevertheless, proactively enacted policy changes to hamper the United States Postal Service’s (“USPS”) ability to effectively handle the rise in mail-in voting. Some states sued the Trump administration in response, raising a variety of claims in their lawsuits. One of the lesser discussed claims is that the executive’s actions violated Article II, § 1, cl. 2, otherwise known as the “Electors Clause.” This clause confers upon the states the exclusive power to appoint their electors “in such Manner as the Legislature thereof may direct.” Thus, the Electors Clause is unique in that it provides states one of their few enumerated constitutional powers—it is a power that may not be preempted by federal action. But when the federal government uses its own powers, such as the executive’s delegated authority over USPS, to undermine a state’s chosen manner of appointing its electors, such as popular vote by mail-in ballots, a conflict of powers arises. This Essay attempts to resolve this conflict of power, ultimately concluding that within the Electors Clause exists an implied obligation on the federal government to not deliberately undermine a state’s choice to use mail-in ballots in a presidential election.

Introduction

Crisis often begets crisis, and the COVID-19 pandemic has proven to be no exception. With rising concerns over crowding at the polls, many states during the 2020 elections opted to allow voters to use mail-in ballots to vote in the general election. Then-President Trump, nevertheless, came out openly against mail-in ballots, and beginning in April 2020 his administration proactively enacted policy changes to hamper the United States. Postal Service’s (“USPS”) ability to effectively handle the anticipated rise in mail-in voting. In response, a variety of states sued the Trump administration.

These states raised a variety of claims in their lawsuits, some constitutional and some statutory. One of the lesser discussed claims, though, is that the executive’s actions violated the “Electors Clause,” which confers upon the states the exclusive power to appoint their electors “in such Manner as the Legislature thereof may direct.”1 1.U.S. Const. art. II, § 1, cl. 2.Show More Thus, the Electors Clause is unique in that it provides states one of their few enumerated constitutional powers—it is a power that may not be preempted by federal action. But when the federal government uses its own powers, such as the executive’s delegated authority over USPS, to undermine a state’s chosen manner of appointing its electors during a presidential election, such as popular vote by mail-in ballots, a conflict of powers arises. Federal power clashes with state power. The COVID-19 pandemic has therefore elucidated a vertical separation-of-powers crisis that cannot be ignored.

This Essay attempts to resolve this conflict of power, ultimately concluding that within the Electors Clause exists an implied obligation on the federal government to not deliberately undermine a state’s choice to use mail-in ballots in a presidential election. The Essay proceeds as follows: Part I overviews the 2020 mail-in ballot crisis in the United States. Part II discusses the Electors Clause and what makes the clause a unique state power. Finally, Part III introduces the concept of the Electors Clause providing some constraints on using federal powers to influence presidential elections, thus supplying a vital check on an executive or congressional attempt to sabotage mail-in voting.2 2.It should be noted that this Essay does not cover the post-election litigation that former President Trump instigated to overturn the 2020 presidential election results. This is because such litigation did not present a vertical separation-of-powers conflict, as Trump was bringing forth such litigation as a candidate rather than using any executive power to overturn the results in Wisconsin, Georgia, Pennsylvania, Arizona, and Michigan. For a summary of such cases that were decided on the merits, see Compiling the Truth: A Resource to Refute Trump’s “Stolen Election” Lies, Campaign Legal Ctr. (Mar. 1, 2021), https://campaignlegal.org/‌update/compiling-truth-resource-refute-trumps-stolen-election-lies [https://perma.cc/CG2S-W6KJ].Show More

I. The 2020 Mail-In Ballot Crisis

What is worse than a pandemic? A pandemic in an election year. Such was the case of 2020, where COVID-19 forced the majority of states to reevaluate how they planned to have their citizens vote in the 2020 general election. Prior to the pandemic, only three states used widespread mail-in ballots in their elections.3 3.David Roberts, Voting by Mail Is Fair, Safe, and Easy. Why Don’t More States Use It?, Vox (May 27, 2017, 12:16 PM), https://www.vox.com/policy-and-politics/2017/5/27/‌15701708/voting-by-mail (Washington, Oregon, and Colorado).Show More By November 2020, forty-five states (and D.C.) permitted voters to either request a mail-in ballot or automatically receive one,4 4.See Benjamin Swasey, Map: Mail-In Voting Rules by State—And the Deadlines You Need, NPR (last updated Oct. 14, 2020, 3:00 PM), https://www.npr.org/2020/09/14/‌909338758/map-mail-in-voting-rules-by-state [https://perma.cc/WDA9-5EE4].Show More hoping to avoid mass crowds—and thus mass spreading of the coronavirus—at the polls. Accordingly, an unprecedented percentage of voters (about 46%) this past general election decided to vote by mail.5 5.Pew Rsch. Ctr., Sharp Divisions on Vote Counts, as Biden Gets High Marks for His Post-Election Conduct 19 (2020), https://www.pewresearch.org/politics/2020/11/20/sharp-divisions-on-vote-counts-as-biden-gets-high-marks-for-his-post-election-conduct/ [https://perma.cc/N8FP-B39F]. This helped to create the highest voter turnout in a U.S. presidential election in over a century. See Kevin Schaul, Kate Rabinowitz & Ted Mellnik, 2020 Turnout Is the Highest in over a Century, Wash. Post (last updated Dec. 28, 2020, 4:29 PM), https://www.washingtonpost.com/graphics/2020/elections/voter-turnout/ [https://perma‌.cc/9U2U-5UPW].Show More

The federal government, however, was less than supportive of this state-led exodus to mail-in voting. Rather, examples abound of outright hostility and obstruction from the executive. Since the beginning of the pandemic, former President Trump had expressed open contempt toward mail-in voting, stating that it “doesn’t work out well for Republicans.”6 6.Donald Trump (@realDonaldTrump), Twitter (Apr. 8, 2020, 8:20 AM), https://www.thetrumparchive.com/?dates=%5B%222020-04-07%22%2C%222020-04-08%22%5D [https://perma.cc/6CC4-S4YE].Show More Following this, Postmaster General Louis DeJoy—head of USPS—began issuing a variety of policy changes over the summer of 2020 overhauling agency operations critical to the timely and effective delivery of mail. These changes included the removal of hundreds of collection boxes and high-speed sorting machines, the reduction of overtime, the prohibition of necessary late trips and extra trips, the introduction of a pilot program that disrupted the processing of mail in almost 400 localities, and the refusal to treat election-related mail as First Class Mail.7 7.Complaint at 2–3, New York v. Trump (D.D.C. filed Aug. 25, 2020) (No. 1:20-cv-02340).Show More Following these changes, USPS’s general counsel sent letters to states warning that USPS could not guarantee that mail-in ballots would be delivered in time for the November general election.8 8.See id. at 3; see also Tara O’Neill, USPS Warns CT: Mail-In Ballots Not Guaranteed by November Election, CTPost (Aug. 14, 2020, 8:35 PM), https://www.ctpost.com/‌local/article/USPS-warns-CT-Mail-in-ballots-not-guaranteed-by-15485399.php [https://perma.cc/53SJ-6P8J] (explaining that at least 46 states and D.C. received letters).Show More In response, House members in August 2020 voted—with most Democrats in favor and most Republicans opposed—to pass a $25 billion relief package for USPS.9 9.Rachael Bade & Donna Cassata, House Passes Bill to Boost U.S. Postal Service amid Trump Attacks, Wash. Post (Aug. 22, 2020, 6:43 PM), https://www.washingtonpost.com/‌powerpost/house-poised-to-pass-bill-to-boost-us-postal-service-amid-trump-attacks/2020/08/21/c9196fa8-e3c6-11ea-8181-606e603bb1c4_story.html [https://perma.cc/LXJ7-VHX8].Show More President Trump, however, explicitly stated that he planned to block the relief package in an effort to thwart the use of mail-in ballots.10 10.See Deb Riechmann & Anthony Izaguirre, Trump Admits He’s Blocking Postal Cash to Stop Mail-In Votes, AP News (Aug. 13, 2020), https://apnews.com/article/‌14a2ceda724623604cc8d8e5ab9890ed [https://perma.cc/JUN5-UMNS]. Trump eventually signed a stimulus bill granting $10 billion to USPS for Covid-19-related costs, though this happened post-election. See Trump Signs Stimulus Bill with $10 Billion for USPS, PostalReporter.com (Dec. 28, 2020), https://www.postal-reporter.com/blog/trump-signs-stimulus-bill-with-10-billion-for-usps/ [https://perma.cc/7JRE-PHZX].Show More

In the face of this executive action, over twenty states sued Trump and DeJoy, fearful of the effects the USPS changes would have on their residents’ ability to vote.11 11.See Alison Durkee, New York AG Files Multistate Lawsuit, Joins More Than 20 States Suing Postal Service Over DeJoy’s Changes, Forbes (Aug. 25, 2020, 3:09 PM), https://www.forbes.com/sites/alisondurkee/2020/08/25/more-than-20-states-attorneys-general-suing-postal-service-usps-changes-despite-dejoy-reversal/?sh=65898ebb4533 [https://perma.cc/2CCJ-LZKD].Show More The suing states’ arguments ranged from constitutional to statutory, and at least three courts issued preliminary injunctions barring USPS from further implementing its policy changes.12 12.See New York v. Trump, No. 20-cv-2340 (EGS), 2020 WL 5763775, at *13 (D.D.C. Sept. 27, 2020); Jones v. USPS, No. 20 Civ. 6516 (VM), 2020 WL 5627002, at *28–29 (S.D.N.Y. Sept. 21, 2020); Washington v. Trump, No. 1:20-cv-03127-SAB, 2020 WL 5568557, at *6–7 (E.D. Wash. Sept. 17, 2020).Show More The crisis, nonetheless, raises two important questions: Does the federal government have a proper grant of power to manipulate USPS in a manner that undermines mail-in voting, and if so, how? With usage of mail-in ballots likely to remain prevalent in the future, it will be important to answer these questions so that states can shield themselves from further political federal encroachment in forthcoming presidential elections. Accordingly, this Essay seeks to explore these questions, finding the ultimate answer to be that it depends on the federal government’s motive. For now, though, it is enough to say that the executive and Congress wield a wide range of legitimate powers that generally grant them the ability to fund and run USPS as they see fit.13 13.The federal government’s subsidization and regulation of USPS is rooted in at least five federal powers—two legislative and three executive:1. The Postal Clause – The Constitution empowers Congress “[t]o establish Post Offices and post Roads.” U.S. Const. art. I, § 8, cl. 7. The Postal Clause grants Congress the power to regulate “the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents.” Ex parte Jackson, 96 U.S. 727, 732 (1877). Thus, when Congress established USPS, it was vested exclusive control over “the processing, transmission[,] and delivery” of mail shipped through USPS. See Commonwealth v. Nat’l Fed’n of the Blind, 335 A.2d 832, 838 (Pa. Commw. Ct. 1975). Moreover, the Postal Clause allows Congress to control the administration of USPS. See, e.g., Sarah Anderson, Scott Klinger & Brian Wakamo, How Congress Manufactured a Postal Crisis — And How to Fix It, Inst. for Pol’y Stud. (July 15, 2019), https://ips-dc.org/how-congress-manufactured-a-postal-crisis-and-how-to-fix-it/ [https://perma.cc/4PET-7UF4] (examining how Congress has used its power to control USPS through its retirement funding).2. The Appropriations Clause – The power to fund USPS—and all federal agencies—is vested in Congress under the Appropriations Clause, establishing that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. Consequently, the Appropriations Clause accords Congress the “power of the purse” to, for instance, grant USPS a $25 billion relief package. See Sean M. Stiff, Cong. Rsch. Serv., R46417, Congress’s Power over Appropriations: Constitutional and Statutory Provisions 1 (2020), https://crsreports.congress.gov/product/pdf/R/R46417 [https://perma.cc/LE9R-SWET].3. The Presentment Clause – The President has the power to veto “[e]very [b]ill” passed by Congress, including an appropriations bill. See U.S. Const. art. I, § 7, cl. 2. Under this power, the President may veto a $25 billion USPS relief package, as Trump threatened during his Presidency. See Riechmann & Izaguirre, supra note 10. Congress would need a two-thirds majority to override said veto.4. The Vesting & Take Care Clauses – Many scholars would agree that the executive has the power—if not duty—to faithfully execute powers delegated to it by Congress. See, e.g., Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 280–81 (2021). The Constitution, after all, vests “[t]he executive Power” in “a President of the United States,” and states that the executive “shall take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. art. II, § 3. Congress delegates much rulemaking authority to the Postmaster General. See, e.g., 18 U.S.C. § 3061(c)(4)(A) (2018). Thus, nondelegation doctrine concerns aside, the Postmaster General—wielding executive power—may “faithfully execute” their congressionally assigned role by “promulgat[ing] regulations generally as to the conduct of [USPS],” including policy changes such as refusing to treat election-related mail as First-Class Mail. See Daniel L. Pines, The Central Intelligence Agency’s “Family Jewels”: Legal Then? Legal Now?, 84 Ind. L.J. 637, 672 n.306 (2009) (quoting Ex parte Willman, 277 F. 819, 821 (S.D. Ohio 1921)).Naturally, one may be able to point to other powers, but the preceding five seem to be most relevant, at least in the context of mail-in voting.Show More

This Essay, nevertheless, does not concern itself with which federal power is implicated. This does not matter. Rather, as Part II will demonstrate, so long as the federal government is using any of these powers to undermine a state’s decision to use mail-in ballots—which it has14 14.See supra notes 7–10 and accompanying text.Show More—then a vertical separation-of-powers problem arises between said federal powers and the states’ exclusive power under the Electors Clause to choose the manner of appointing electors.

II. The Electors Clause: A Unique Exclusive State Power

The Constitution explicitly enumerates very few exclusive state powers. Rather, powers not delegated within the Constitution exclusively to the federal government are either reserved to the states,15 15.See U.S. Const. amend. X.Show More or run concurrent between the federal and state governments.16 16.See, e.g., infra section III.A.Show More One of the few exclusive state powers that exists, however, resides in Article II, § 1, cl. 2, known by some scholars as the Electors Clause.17 17.See, e.g., Nathaniel F. Rubin, The Electors Clause and the Governor’s Veto, 106 Cornell L. Rev. Online 57, 60 (2021).Show More Accordingly, this clause grants states a unique defense against federal encroachment into elections, or at the very least presidential elections. This Part will overview this power, its relationship to mail-in voting, and its seeming collision with the federal powers implicated in the 2020 mail-in ballot crisis.

A. The Electors Clause

Article II, § 1, cl. 2 of the Constitution provides that “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.”18 18.U.S. Const. art. II, § 1, cl. 2.Show More This does not mean state legislatures carry some of the power to choose the manner of appointing their state’s electors, but all of the power to do so.19 19.Cf. Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting) (asserting that the language of the Vesting Clause “does not mean some of the executive power, but all of the executive power”); see also Robert G. Natelson, The Enumerated Powers of States, 3 Nev. L.J. 469, 470 n.11 (2003) (listing the Electors Clause as one of the few exclusive state powers enumerated in the Constitution).Show More As of 2020, all states have chosen to appoint their electors by some method of popular vote, and all but two states have chosen to do this through a traditional winner-take-all method based on state-wide results.20 20.The two exceptions being Maine and Nebraska, which appoint two electors based on the statewide vote and the rest based on results within each congressional district. Meilan Solly, Why Do Maine and Nebraska Split Their Electoral Votes?, Smithsonian Mag. (Nov. 5, 2020), https://www.smithsonianmag.com/smart-news/why-do-maine-and-nebraska-split-their-electoral-votes-180976219/ [https://perma.cc/7AMV-MVK6].Show More In doing so, the states have exercised their Electors Clause power—the “manner” chosen by the state legislature is a popular vote, which then determines whether a Democratic slate of electors or Republican slate of electors will be appointed to vote for the President and Vice President.

The importance of the exclusivity of a state’s power under the Electors Clause cannot be overstated. Compare the clause with the Elections Clause, which governs congressional elections. The Elections Clause says that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof,” somewhat mirroring the Electors Clause; however, the Elections Clause goes on to say that “Congress may at any time by Law make or alter such Regulations.”21 21.U.S. Const. art. I, § 4, cl. 1.Show More In other words, states may regulate congressional elections, but Congress may preempt said regulations. This preemptive power was illustrated recently in Arizona v. Inter Tribal Council, in which the Supreme Court held that the National Voter Registration Act’s (NVRA) requirement for states to “accept and use” a Federal Form to register voters for congressional elections preempted Arizona’s additional evidence-of-citizenship requirement for registration.22 22.See Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 13–15 (2013).Show More If, however, Arizona’s evidence-of-citizenship requirement had hypothetically been limited to registration for the presidential election, the Court might have come to a different conclusion.23 23.See infra Part III.A.Show More Unlike the Elections Clause, the Electors Clause grants no express preemptive powers to Congress—or any federal branch—thus showcasing the unique power it confers upon the states.24 24.See Michael T. Morley, Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections, 111 Nw. U.L. Rev. Online 103, 108 (2017) (noting that there is “a strong textual basis for believing that Congress’s authority over presidential elections is limited to its powers to enforce the constitutional right to vote and under the Spending Clause”).Show More

B. The Electors Clause & Mail-In Ballots

This power is not only uniquely exclusive, but broad in scope—broad enough to cover a state’s choice to appoint electors by popular mail-in voting. Last year, the Supreme Court provided a rare analysis of the Electors Clause in Chiafalo v. Washington, which upheld state laws fining faithless electors. The Chiafalo Court began by describing the Electors Clause as “‘conveying the broadest power of determination’ over who becomes an elector.”25 25.Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (emphasis added) (quoting McPherson v. Blacker, 146 U.S. 1, 27 (1892)).Show More As Justice Kagan states, “[t]he Constitution is barebones about electors.”26 26.Id.Show More Consequently, a state may appoint its electors “in whatever way it likes.”27 27.Id.Show More And if, according to the Court, a state’s choice to punish faithless electors is covered by the Electors Clause, surely a state’s choice to use popular voting by combination of in-person and mail-in ballots (or exclusively mail-in, as is the case in states like Oregon28 28.Sen. Ron Wyden, Opinion, Oregon Has Used Vote by Mail Since Electing Me in 1996. Those Who Say It Can’t Work Are Lying., NBC News (Apr. 30, 2020, 9:00 AM), https://www.nbcnews.com/think/opinion/oregon-has-used-vote-mail-electing-me-1996-those-who-ncna1195646 [https://perma.cc/PU6T-PWTV].Show More) as its manner of appointing electors also falls under the clause’s protection.29 29.Cf. Oregon v. Mitchell, 400 U.S. 112, 291 (1970) (Stewart, J., concurring in part and dissenting in part) (noting that hosting a “popular election” qualifies as a “manner” of appointing electors).Show More Some may, nevertheless, point out that the decision to implement mail-in ballots has often been made by state election commissions rather than the legislature. However, even when this is the case, courts have suggested that this falls under “Manner.”30 30.See, e.g., Trump v. Wis. Elections Comm’n, 983 F.3d 919, 926–27 (7th Cir. 2020) (citing Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring)) (“Chief Justice Rehnquist suggested that the proper inquiry under the Electors Clause is to ask whether a state conducted the election in a manner substantially consistent with the ‘legislative scheme’ for appointing electors.”).Show More

Therefore, when the President or Congress uses their own powers to undermine a state’s decision to utilize mail-in ballots in a presidential election (e.g., vetoing USPS funding), the result appears to be a conflict of powers between the federal and state governments. The next section will discuss this in more detail.

C. When Powers Collide

Let us begin with a realistic hypothetical: The Pennsylvania General Assembly is severely concerned about an ongoing pandemic and wants to avoid crowding during the presidential election. The Assembly thus passes a bill requiring mail-in ballots to automatically be sent to every registered voter in Pennsylvania—said ballots include the presidential candidates. Concerned that swing states moving to mail-in voting will hurt his reelection chances, the president vetoes an appropriations bill that includes USPS funding, and orders the Postmaster General to have USPS no longer treat election-related mail as First-Class Mail. Due to the President’s actions, hundreds of thousands of Pennsylvanians are not able to receive or send in their ballot in time, and thus may not vote in the presidential election (among other elections).

Pennsylvania sues the president’s administration, arguing that its actions violate Pennsylvania’s exclusive power under the Electors Clause to appoint its electors in a manner chosen by its legislature: mail-in voting.31 31.Two states in fact raised this argument in lawsuits leading up to the 2020 general election. See Complaint at 7, 63, Pennsylvania v. DeJoy, No. 2:20-cv-04096 (E.D. Pa. filed Aug. 21, 2020); Complaint at 107–08, Washington v. Trump, No. 1:20-cv-03127 (E.D. Wash. filed Aug. 18, 2020).Show More The president’s administration responds by asserting that it has the power under the Presentment Clause and Take Care Clause to do what it did. Who wins here? There is, as of now, no clear answer, for it took the COVID-19 pandemic to highlight that this conflict of powers even exists.

Perhaps some may argue that Pennsylvania has no real claim because the federal government never had to create USPS in the first place,32 32.But see John Nichols, Congress Has a Constitutional Duty to Preserve and Promote the Post Office, Nation: Budgets Blog (Mar. 22, 2013), https://www.thenation.com/‌article/archive/congress-has-constitutional-duty-preserve-and-promote-post-office (arguing that the Postal Clause creates a congressional “responsibility” to establish a post office).Show More meaning Pennsylvania is not entitled to its service. This Essay submits that the answer is not so simple though. For example, suppose a traveler comes across a river and is told she has two choices to cross said river: a bridge or a boat. She is affirmed by, of all people, the boat’s owner that this choice is hers alone to make. The traveler ultimately chooses the boat. Moments before the traveler enters the boat, however, the boat owner dismantles the engine, rendering the boat inoperable. The traveler exclaims, “Hold on, I thought you said that I had the power to choose how to cross the river?” The boat owner responds, “Yes, you had the power to choose how to cross the river, but I have the power as the boat’s owner to dismantle its engine. Now you must use the bridge!” Are we to pretend that the traveler really had a choice here? That does not feel right. Sure, the boat owner had no obligation to provide the boat in the first place, but it is nevertheless there. And so long as it is there, and travelers are told that they have the power to choose to use it to cross the river, it seems disingenuous to claim that they really have this power if the boat owner can make the boat unusable at any moment to disrupt a traveler’s choice.

Likewise, USPS exists. Perhaps it does not need to exist,33 33.See Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835–37, 89 Nw. U.L. Rev. 785, 827–28 (1995) (“The postal power included the power not to establish post offices and post roads.”). But see Nichols, supra note 32.Show More but it does. And so long as it exists, the states have the exclusive power to choose to use popular vote by mail-in ballots as their manner of appointing electors. Otherwise, if we accept the notion that the federal government can use its powers to deliberately sabotage a state’s choice to use mail-in ballots in the presidential election, then the Electors Clause is essentially made null. It would not convey the “broadest power of determination” to the states.34 34.Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (quoting McPherson v. Blacker, 146 U.S. 1, 27 (1892)).Show More

With this said, the question then becomes how to balance the states’ exclusive power under the Electors Clause to run their presidential elections by mail-in ballot with the federal government’s powers to fund and manage USPS. The Supreme Court itself has no clear or consistent method for determining when one constitutional provision takes precedent over another.35 35.Andrew M. Hetherington, Comment, Constitutional Purpose and Inter-Clause Conflict: The Constraints Imposed on Congress by the Copyright Clause, 9 Mich. Telecomm. Tech. L. Rev. 457, 485 (2003).Show More Part III posits, nevertheless, that the solution rests within the very subtext of our Constitution.

III. Constraints on Federal Power Under the Electors Clause

In one corner of the ring, we have the federal government. In the other corner, we have the states. Both claim authority over the power to control the use of mail-in ballots in presidential elections. Perhaps, though, there is no need for such a fight. Perhaps the solution to this conflict can be solved easily by simply reframing the issue. This Part does just that. Instead of viewing the mail-in ballot crisis as a conflict between powers, this Part asserts that these powers should be recognized as concurrent. That is, both the federal government and states have legitimate claims to power over the use of mail-in ballots in presidential elections. When framed this way, it becomes possible to look to constitutional doctrines that arise in other instances of concurrent powers, such as the Dormant Commerce Clause, to conclude that within the Electors Clause exists an inferred restraint on federal powers that can be used to balance the competing interests of the federal government and the states in the case of mail-in ballots. This Part lays out such a theory and then goes into said theory’s implications and potential critiques.

A. The Theory

The theory is this: If the federal government uses its powers to discriminate against a state’s power under the Electors Clause to determine the manner in which its electors are appointed, the federal government’s action is per se unconstitutional. If the federal government, nevertheless, uses a legitimate power in a manner that only incidentally impacts a state’s appointment of electors, then this action is permissible so long as the burden is not excessive. Now, how do we get here?

The first step is to recognize that when, say, the president vetoes an appropriations bill to fund USPS, and state X’s legislature votes to conduct its 2020 elections—including the presidential election—entirely by mail-in voting, the two constitutional powers implicated in these decisions are not entirely exclusive. Rather, imagine a Venn diagram, where one bubble is the president’s Presentment Clause power and the other is state X’s Electors Clause power. For the most part, these bubbles do not overlap; however, there is a tiny sliver where the bubbles touch, and in this sliver, it states, “Determining whether mail-in ballots will be a viable form of voting for state X’s citizens in the presidential election.” Thus, within that tiny sliver, the federal government’s power to fund and manage USPS and the states’ power to determine the manner of appointing their electors transform from being exclusive powers into what can best be described as concurrent.

When we accept this concurrent nature, we can look to how the Supreme Court has historically resolved state–federal power conflicts in which the powers were exclusive in some ways but “concurrent . . . [in] other ways.”36 36.See Commerce Clause Limitations on State Regulation, UMKC, http://law2.umkc.edu/‌faculty/projects/ftrials/conlaw/statecommerce.htm [https://perma.cc/5L7E-E6XZ] (last visited Mar. 22, 2021).Show More For instance, we can look to the Dormant Commerce Clause, which arises in cases in which a state’s action impacts interstate commerce. The Commerce Clause confers upon Congress the power to, among other things, “regulate Commerce . . . among the several States.”37 37.U.S. Const. art. I, § 8, cl. 3.Show More This power has, however, been deemed “not absolutely exclusive,” given the clause’s silence on the states’ power to regulate interstate commerce.38 38.See Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution 41 (2009).Show More Faced with this uncertainty, the Supreme Court laid out the following standard that has become known as the Dormant Commerce Clause: When a state statute intentionally discriminates against interstate commerce, the statute is per se unconstitutional, and will only survive if demonstrated that there is “no other means to advance a legitimate local purpose.”39 39.United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338–39 (2007). This is, needless to say, an extraordinarily high bar to meet.Show More If, however, said statute’s effects on interstate commerce are “only incidental,” the statute will only be struck down if it imposes an undue burden on interstate commerce.40 40.See id. at 346 (quoting Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978)).Show More

Given the uncertainty surrounding how federal and state powers interact in situations like the 2020 mail-in ballot crisis, it seems only reasonable to turn to the Dormant Commerce Clause as a helpful doctrinal analogy to provide guidance on navigating through this state–federal powers conflict. And in doing so, we arrive at the following conclusion: The federal government may not use its federal powers to purposefully discriminate against the states’ choosing of a manner of appointing electors; it may, however, generally use its federal powers in a way that only incidentally impacts the states’ Electors Clause powers.

There is, naturally, one key difference between the Dormant Commerce Clause and the Electors Clause, in that the former resolves a conflict between an enumerated federal power and an implied state power, whereas the latter is intended to resolve a conflict between two enumerated powers. This is why this Essay is not claiming there to be a “Dormant Electors Clause”; rather, the constraint on federal powers is derived from the explicit structure of the U.S. Constitution. This is also why it seems necessary to include a disclaimer that this Essay’s theory could presumably work in reverse: A state may not use its Electors Clause power to discriminate against the practice of a federal power (though one may need to get extra creative to imagine what such a scenario might look like). Regardless, turning to the Dormant Commerce Clause jurisprudence for guidance to develop a doctrinal framework in these Electors Clause cases appears to be the fairest and most constitutionally sound method to respect both federal and state government interests while resolving the conflicts of power that have arisen in the mail-in ballot crisis.

B. The Implications

If a court were to recognize and apply this federal constraint, at least two important implications would follow for mail-in voting. First, the federal government could not use its powers over USPS to deliberately undermine a state’s decision to use mail-in ballots in a presidential election. Accordingly, when then-President Trump openly stated that he was vetoing an appropriations bill to fund USPS specifically because he did not want the funding to assist mail-in voting, he behaved unconstitutionally. Conversely, if, say, Congress defunded USPS for some neutral reason (e.g., obsession with free market values) that only incidentally made it harder to vote by mail, this would almost assuredly be permissible. Of course, the question then becomes how courts would remedy a violation. It seems quite unlikely, for instance, that they could enjoin the President from vetoing a bill. At the very least, the lawsuits against the Trump administration suggest that courts could enjoin USPS from instituting policy changes aimed at making mail-in voting more difficult.41 41.See supra text accompanying note 12.Show More

Furthermore, this federal constraint could indirectly preserve mail-in voting for other elections beyond the presidential one. As noted in Part II.A, the Elections Clause grants Congress exclusive preemptive authority over the regulation of congressional elections, meaning states would have a tougher time arguing that Congress, and the executive by delegation, violated the Constitution by making it more difficult to use mail-in ballots in congressional elections. These elections, however, do not exist on separate ballots. Typically, a ballot will contain all elections relevant to a voter, including presidential, congressional, gubernatorial, etc. Consequently, if a court enjoined the federal government from certain actions negatively impacting mail-in voting because it found discrimination against states’ Electors Clause powers, this would mean that all elections on a ballot containing the presidential election would be protected by proxy.42 42.Midterm elections would naturally not benefit from this though, since there would be no presidential election on the ballot.Show More

C. The Critiques

One critique of this Essay’s theory could be that it violates the Supremacy Clause. It seems odd, after all, to claim that a state action can displace a federal action. The Supremacy Clause, however, has no relevance here, since the Electors Clause is part of the enumerated Constitution, and thus part of the “supreme Law of the Land.”43 43.U.S. Const. art. VI, cl. 2.Show More And since the Supreme Court rejects any hierarchy of constitutional provisions, the Electors Clause may not be preempted.44 44.See Ken Hyle, When Constitutional Rights Clash: Masterpiece Cakeshop’s Potential Legacy, 9 ConLawNOW 200, 202 (2018).Show More

Another critique may point to the fact that the Supreme Court has previously held that Congress has some regulatory powers over presidential elections. In Burroughs v. United States, for example, the Court upheld an act requiring candidate committees, including those for presidential candidates, to keep account of all contributions received or donated by them.45 45.290 U.S. 534, 548 (1934).Show More The Burroughs Court reasoned that Congress possessed the power to preserve the integrity of presidential elections.46 46.See id. at 544–45.Show More As Professors Dan Coenen and Edward Larson note though, there is a difference between controlling the manner in which electors are appointed (e.g., popular vote by mail-in ballots) and adopting electoral procedures necessary to implement said manner (e.g., campaign finance laws to quell the possibility of corruption within a popular election).47 47.See Dan T. Coenen & Edward J. Larson, Congressional Power over Presidential Elections: Lessons from the Past and Reforms for the Future, 43 Wm. & Mary L. Rev. 851, 904 (2002) (“Ballot-and-equipment laws simply do not control systems for selecting electors, substantive selection criteria, or candidates who might qualify as proper electors. Rather such laws concern only the implementing procedures to be used if one available substantive manner of selection—that is, the election manner—is chosen by the state.”).Show More Hence, Burroughs does not support any notion that the federal government may encroach on the states’ Electors Clause powers.

Conclusion

The Covid-19 pandemic revealed a conflict of federal and state powers that shook the 2020 election to its core. And while the 2020 election has passed, the practice of mail-in voting will likely remain prevalent in the future. Moreover, unforeseeable future crises could further change up how states choose to conduct their elections. Consequently, this conflict must be resolved, and this Essay argues that restraining federal powers from being used to discriminate against states’ Electors Clause powers is a fair and constitutional means of doing so.

  1. * J.D. Candidate 2021, Columbia Law School. The author would like to thank Professors Henry P. Monaghan, Jessica Bulman-Pozen, and Richard Briffault for their comments and guidance. Any faults in this Essay are my own. ↑
  2. U.S. Const. art. II, § 1, cl. 2. ↑
  3. It should be noted that this Essay does not cover the post-election litigation that former President Trump instigated to overturn the 2020 presidential election results. This is because such litigation did not present a vertical separation-of-powers conflict, as Trump was bringing forth such litigation as a candidate rather than using any executive power to overturn the results in Wisconsin, Georgia, Pennsylvania, Arizona, and Michigan. For a summary of such cases that were decided on the merits, see Compiling the Truth: A Resource to Refute Trump’s “Stolen Election” Lies, Campaign Legal Ctr. (Mar. 1, 2021), https://campaignlegal.org/‌update/compiling-truth-resource-refute-trumps-stolen-election-lies [https://perma.cc/CG2S-W6KJ]. ↑
  4. David Roberts, Voting by Mail Is Fair, Safe, and Easy. Why Don’t More States Use It?, Vox (May 27, 2017, 12:16 PM), https://www.vox.com/policy-and-politics/2017/5/27/‌15701708/voting-by-mail (Washington, Oregon, and Colorado). ↑
  5. See Benjamin Swasey, Map: Mail-In Voting Rules by State—And the Deadlines You Need, NPR (last updated Oct. 14, 2020, 3:00 PM), https://www.npr.org/2020/09/14/‌909338758/map-mail-in-voting-rules-by-state [https://perma.cc/WDA9-5EE4]. ↑
  6. Pew Rsch. Ctr., Sharp Divisions on Vote Counts, as Biden Gets High Marks for His Post-Election Conduct 19 (2020), https://www.pewresearch.org/politics/2020/11/20/sharp-divisions-on-vote-counts-as-biden-gets-high-marks-for-his-post-election-conduct/ [https://perma.cc/N8FP-B39F]. This helped to create the highest voter turnout in a U.S. presidential election in over a century. See Kevin Schaul, Kate Rabinowitz & Ted Mellnik, 2020 Turnout Is the Highest in over a Century, Wash. Post (last updated Dec. 28, 2020, 4:29 PM), https://www.washingtonpost.com/graphics/2020/elections/voter-turnout/ [https://perma‌.cc/9U2U-5UPW]. ↑
  7. Donald Trump (@realDonaldTrump), Twitter (Apr. 8, 2020, 8:20 AM), https://www.thetrumparchive.com/?dates=%5B%222020-04-07%22%2C%222020-04-08%22%5D [https://perma.cc/6CC4-S4YE]. ↑
  8. Complaint at 2–3, New York v. Trump (D.D.C. filed Aug. 25, 2020) (No. 1:20-cv-02340). ↑
  9. See id. at 3; see also Tara O’Neill, USPS Warns CT: Mail-In Ballots Not Guaranteed by November Election, CTPost (Aug. 14, 2020, 8:35 PM), https://www.ctpost.com/‌local/article/USPS-warns-CT-Mail-in-ballots-not-guaranteed-by-15485399.php [https://perma.cc/53SJ-6P8J] (explaining that at least 46 states and D.C. received letters). ↑
  10. Rachael Bade & Donna Cassata, House Passes Bill to Boost U.S. Postal Service amid Trump Attacks, Wash. Post (Aug. 22, 2020, 6:43 PM), https://www.washingtonpost.com/‌powerpost/house-poised-to-pass-bill-to-boost-us-postal-service-amid-trump-attacks/2020/08/21/c9196fa8-e3c6-11ea-8181-606e603bb1c4_story.html [https://perma.cc/LXJ7-VHX8]. ↑
  11. See Deb Riechmann & Anthony Izaguirre, Trump Admits He’s Blocking Postal Cash to Stop Mail-In Votes, AP News (Aug. 13, 2020), https://apnews.com/article/‌14a2ceda724623604cc8d8e5ab9890ed [https://perma.cc/JUN5-UMNS]. Trump eventually signed a stimulus bill granting $10 billion to USPS for Covid-19-related costs, though this happened post-election. See Trump Signs Stimulus Bill with $10 Billion for USPS, PostalReporter.com (Dec. 28, 2020), https://www.postal-reporter.com/blog/trump-signs-stimulus-bill-with-10-billion-for-usps/ [https://perma.cc/7JRE-PHZX]. ↑
  12. See Alison Durkee, New York AG Files Multistate Lawsuit, Joins More Than 20 States Suing Postal Service Over DeJoy’s Changes, Forbes (Aug. 25, 2020, 3:09 PM), https://www.forbes.com/sites/alisondurkee/2020/08/25/more-than-20-states-attorneys-general-suing-postal-service-usps-changes-despite-dejoy-reversal/?sh=65898ebb4533 [https://perma.cc/2CCJ-LZKD]. ↑
  13. See New York v. Trump, No. 20-cv-2340 (EGS), 2020 WL 5763775, at *13 (D.D.C. Sept. 27, 2020); Jones v. USPS, No. 20 Civ. 6516 (VM), 2020 WL 5627002, at *28–29 (S.D.N.Y. Sept. 21, 2020); Washington v. Trump, No. 1:20-cv-03127-SAB, 2020 WL 5568557, at *6–7 (E.D. Wash. Sept. 17, 2020). ↑
  14. The federal government’s subsidization and regulation of USPS is rooted in at least five federal powers—two legislative and three executive:1. The Postal Clause – The Constitution empowers Congress “[t]o establish Post Offices and post Roads.” U.S. Const. art. I, § 8, cl. 7. The Postal Clause grants Congress the power to regulate “the carriage of the mail, and all measures necessary to secure its safe and speedy transit, and the prompt delivery of its contents.” Ex parte Jackson, 96 U.S. 727, 732 (1877). Thus, when Congress established USPS, it was vested exclusive control over “the processing, transmission[,] and delivery” of mail shipped through USPS. See Commonwealth v. Nat’l Fed’n of the Blind, 335 A.2d 832, 838 (Pa. Commw. Ct. 1975). Moreover, the Postal Clause allows Congress to control the administration of USPS. See, e.g., Sarah Anderson, Scott Klinger & Brian Wakamo, How Congress Manufactured a Postal Crisis — And How to Fix It, Inst. for Pol’y Stud. (July 15, 2019), https://ips-dc.org/how-congress-manufactured-a-postal-crisis-and-how-to-fix-it/ [https://perma.cc/4PET-7UF4] (examining how Congress has used its power to control USPS through its retirement funding).

    2. The Appropriations Clause – The power to fund USPS—and all federal agencies—is vested in Congress under the Appropriations Clause, establishing that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.” U.S. Const. art. I, § 9, cl. 7. Consequently, the Appropriations Clause accords Congress the “power of the purse” to, for instance, grant USPS a $25 billion relief package. See Sean M. Stiff, Cong. Rsch. Serv., R46417, Congress’s Power over Appropriations: Constitutional and Statutory Provisions 1 (2020), https://crsreports.congress.gov/product/pdf/R/R46417 [https://perma.cc/LE9R-SWET].

    3. The Presentment Clause – The President has the power to veto “[e]very [b]ill” passed by Congress, including an appropriations bill. See U.S. Const. art. I, § 7, cl. 2. Under this power, the President may veto a $25 billion USPS relief package, as Trump threatened during his Presidency. See Riechmann & Izaguirre, supra note 10. Congress would need a two-thirds majority to override said veto.

    4. The Vesting & Take Care Clauses – Many scholars would agree that the executive has the power—if not duty—to faithfully execute powers delegated to it by Congress. See, e.g., Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 Colum. L. Rev. 277, 280–81 (2021). The Constitution, after all, vests “[t]he executive Power” in “a President of the United States,” and states that the executive “shall take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 1, cl. 1; id. art. II, § 3. Congress delegates much rulemaking authority to the Postmaster General. See, e.g., 18 U.S.C. § 3061(c)(4)(A) (2018). Thus, nondelegation doctrine concerns aside, the Postmaster General—wielding executive power—may “faithfully execute” their congressionally assigned role by “promulgat[ing] regulations generally as to the conduct of [USPS],” including policy changes such as refusing to treat election-related mail as First-Class Mail. See Daniel L. Pines, The Central Intelligence Agency’s “Family Jewels”: Legal Then? Legal Now?, 84 Ind. L.J. 637, 672 n.306 (2009) (quoting Ex parte Willman, 277 F. 819, 821 (S.D. Ohio 1921)).

    Naturally, one may be able to point to other powers, but the preceding five seem to be most relevant, at least in the context of mail-in voting. ↑

  15. See supra notes 7–10 and accompanying text. ↑
  16. See U.S. Const. amend. X. ↑
  17. See, e.g., infra section III.A. ↑
  18. See, e.g., Nathaniel F. Rubin, The Electors Clause and the Governor’s Veto, 106 Cornell L. Rev. Online 57, 60 (2021). ↑
  19. U.S. Const. art. II, § 1, cl. 2. ↑
  20. Cf. Morrison v. Olson, 487 U.S. 654, 705 (1988) (Scalia, J., dissenting) (asserting that the language of the Vesting Clause “does not mean some of the executive power, but all of the executive power”); see also Robert G. Natelson, The Enumerated Powers of States, 3 Nev. L.J. 469, 470 n.11 (2003) (listing the Electors Clause as one of the few exclusive state powers enumerated in the Constitution). ↑
  21. The two exceptions being Maine and Nebraska, which appoint two electors based on the statewide vote and the rest based on results within each congressional district. Meilan Solly, Why Do Maine and Nebraska Split Their Electoral Votes?, Smithsonian Mag. (Nov. 5, 2020), https://www.smithsonianmag.com/smart-news/why-do-maine-and-nebraska-split-their-electoral-votes-180976219/ [https://perma.cc/7AMV-MVK6]. ↑
  22. U.S. Const. art. I, § 4, cl. 1. ↑
  23. See Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 13–15 (2013). ↑
  24. See infra Part III.A. ↑
  25. See Michael T. Morley, Dismantling the Unitary Electoral System? Uncooperative Federalism in State and Local Elections, 111 Nw. U.L. Rev. Online 103, 108 (2017) (noting that there is “a strong textual basis for believing that Congress’s authority over presidential elections is limited to its powers to enforce the constitutional right to vote and under the Spending Clause”). ↑
  26. Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (emphasis added) (quoting McPherson v. Blacker, 146 U.S. 1, 27 (1892)). ↑
  27. Id. ↑
  28. Id. ↑
  29. Sen. Ron Wyden, Opinion, Oregon Has Used Vote by Mail Since Electing Me in 1996. Those Who Say It Can’t Work Are Lying., NBC News (Apr. 30, 2020, 9:00 AM), https://www.nbcnews.com/think/opinion/oregon-has-used-vote-mail-electing-me-1996-those-who-ncna1195646 [https://perma.cc/PU6T-PWTV]. ↑
  30. Cf. Oregon v. Mitchell, 400 U.S. 112, 291 (1970) (Stewart, J., concurring in part and dissenting in part) (noting that hosting a “popular election” qualifies as a “manner” of appointing electors). ↑
  31. See, e.g., Trump v. Wis. Elections Comm’n, 983 F.3d 919, 926–27 (7th Cir. 2020) (citing Bush v. Gore, 531 U.S. 98, 113 (2000) (Rehnquist, C.J., concurring)) (“Chief Justice Rehnquist suggested that the proper inquiry under the Electors Clause is to ask whether a state conducted the election in a manner substantially consistent with the ‘legislative scheme’ for appointing electors.”). ↑
  32. Two states in fact raised this argument in lawsuits leading up to the 2020 general election. See Complaint at 7, 63, Pennsylvania v. DeJoy, No. 2:20-cv-04096 (E.D. Pa. filed Aug. 21, 2020); Complaint at 107–08, Washington v. Trump, No. 1:20-cv-03127 (E.D. Wash. filed Aug. 18, 2020). ↑
  33. But see John Nichols, Congress Has a Constitutional Duty to Preserve and Promote the Post Office, Nation: Budgets Blog (Mar. 22, 2013), https://www.thenation.com/‌article/archive/congress-has-constitutional-duty-preserve-and-promote-post-office (arguing that the Postal Clause creates a congressional “responsibility” to establish a post office). ↑
  34. See Michael Kent Curtis, The Curious History of Attempts to Suppress Antislavery Speech, Press, and Petition in 1835–37, 89 Nw. U.L. Rev. 785, 827–28 (1995) (“The postal power included the power not to establish post offices and post roads.”). But see Nichols, supra note 32. ↑
  35. Chiafalo v. Washington, 140 S. Ct. 2316, 2324 (2020) (quoting McPherson v. Blacker, 146 U.S. 1, 27 (1892)). ↑
  36. Andrew M. Hetherington, Comment, Constitutional Purpose and Inter-Clause Conflict: The Constraints Imposed on Congress by the Copyright Clause, 9 Mich. Telecomm. Tech. L. Rev. 457, 485 (2003). ↑
  37. See Commerce Clause Limitations on State Regulation, UMKC, http://law2.umkc.edu/‌faculty/projects/ftrials/conlaw/statecommerce.htm [https://perma.cc/5L7E-E6XZ] (last visited Mar. 22, 2021). ↑
  38. U.S. Const. art. I, § 8, cl. 3. ↑
  39. See Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution 41 (2009). ↑
  40. United Haulers Ass’n, Inc. v. Oneida-Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 338–39 (2007). This is, needless to say, an extraordinarily high bar to meet. ↑
  41. See id. at 346 (quoting Philadelphia v. New Jersey, 437 U.S. 617, 624 (1978)). ↑
  42. See supra text accompanying note 12. ↑
  43. Midterm elections would naturally not benefit from this though, since there would be no presidential election on the ballot. ↑
  44. U.S. Const. art. VI, cl. 2. ↑
  45. See Ken Hyle, When Constitutional Rights Clash: Masterpiece Cakeshop’s Potential Legacy, 9 ConLawNOW 200, 202 (2018). ↑
  46. 290 U.S. 534, 548 (1934). ↑
  47. See id. at 544–45. ↑

  48. See Dan T. Coenen & Edward J. Larson, Congressional Power over Presidential Elections: Lessons from the Past and Reforms for the Future, 43 Wm. & Mary L. Rev. 851, 904 (2002) (“Ballot-and-equipment laws simply do not control systems for selecting electors, substantive selection criteria, or candidates who might qualify as proper electors. Rather such laws concern only the implementing procedures to be used if one available substantive manner of selection—that is, the election manner—is chosen by the state.”). ↑

Foreword

Somehow we’ve weathered and witnessed

a nation that isn’t broken

but simply unfinished1 1.Read: Youth Poet Laureate Amanda Gorman’s Inaugural Poem, CNNPolitics (Jan. 20, 2021), https://www.cnn.com/2021/01/20/politics/amanda-gorman-inaugural-poem-transcript/index.html [https://perma.cc/AX6X-GU86].Show More

Amanda Gorman

If a foreword were to be limited to one word, and one word only, this foreword’s one word would be joy. It is a joy to introduce to you a diverse group of authors and their writings on the past, present, and future of a social justice movement that we now know must be founded on intersectional solidarity.

The papers in this collection are blunt. Their messages are confident and unapologetic. The authors trace our faltering progress in a century-long struggle for legal and social justice for people of color, for women, for LGBTQ+ folks, and for others whom white supremacy has silenced and erased. The authors do not hesitate to call out some of their would-be fellow travelers—including, I dare say, themselves—for failures to listen and lift up marginalized points of view. The authors address divergent topics and apply distinct methodologies, but, I suggest, their objectives converge as each seeks to articulate the conditions necessary for an intersectional understanding that produces durable alliances.

So, as you move ahead into these papers, prepare yourself for joy: The joy of listening to authors voicing complex concepts clearly. The joy of hearing about the ancestors whose works they have studied and deployed. The joy of feeling the energy that is produced as we begin to learn how to resist, even as we never deny, the suffering imposed by the conjoint forces of racism, sexism, homophobia, and classism. The joy of finding new alliances as we work to shed our own “public and private rituals” that have “help[ed] maintain the culture of domination.”2 2.bell hooks, Teaching To Transgress: Education as the Practice of Freedom 27 (1994).Show More The joy of knowing that it “is not a naive fantasy” for us to try to act “as a catalyst for social change across false boundaries.”3 3.Id. at 72.Show More

  1. * Lewis F. Powell, Jr., Professor of Law, University of Virginia School of Law. ↑
  2. Read: Youth Poet Laureate Amanda Gorman’s Inaugural Poem, CNNPolitics (Jan. 20, 2021), https://www.cnn.com/2021/01/20/politics/amanda-gorman-inaugural-poem-transcript/index.html [https://perma.cc/AX6X-GU86]. ↑
  3. bell hooks, Teaching To Transgress: Education as the Practice of Freedom 27 (1994). ↑
  4. Id. at 72. ↑

Bostock’s Inclusive Queer Frame

Bostock v. Clayton County is the Supreme Court’s first major decision on gay rights written since Justice Kennedy’s retirement. It is a victory for the LGBT community—a momentous one. But this Essay argues that Bostock is even more momentous than its holding. The case’s central syllogism is hidden beneath a deceptively straightforward reading of Title VII. Bostock says, simply and clearly, that sex equality requires queer equality, and that trans rights are human rights.

Bostock’s logic is universal and inclusive. This Essay centers its analysis on trans identity to explain how and why that matters. It shows how Bostock arrives at its expansive frame for queer rights, and why its careful textual analysis leads it to an ostensibly progressive conclusion. This logic is unusual. Courts confronted with queer plaintiffs usually adopt more minoritarian frames. But in Bostock, inclusivity wins out. That is a good thing: an inclusive account of anti-queerness is straightforward and logical. It accurately describes the way sex-based discrimination operates. It accommodates difference well but remains robust enough to account for core instances of sex discrimination. It is promising, pragmatic, and adaptable. And finally, because it shows the deep interdependence of sex-based identities, the inclusive frame is profound.

[Q:] How has it been for you living as a trans person during this time?

[A:] Well, you’re referring to the Bostock . . . decision, which I think was huge for trans people, especially, because it established that [we] are protected in the workplace. And that’s extraordinary because it’s a protection that doesn’t depend upon privacy in the way that the Lawrence v. Texas decision . . . depended on privacy in order to defend gay sex.

It doesn’t depend on the kind of inherent dignity of the marriage form [that] Obergefell [did]—or the kind of redemptive qualities of love which may or may not chime with your experiences of love; they don’t always chime with mine—but the fact of work and the fact of the public. And it’s kind of amazing to think that that happened. I don’t think any of us really saw that coming. And it was a huge deal.*† Steven Rascón, Transitioning with Grace: Coming Out in Academia, Calif. Mag. (Fall 2020), https://alumni.berkeley.edu/california-magazine/fall-2020/transitioning-with-grace-lavery-coming-out-in-academia [https://perma.cc/8FKF-67PJ].Show More†

I. Introduction

Bostock v. Clayton County turned a traumatic quarantine summer into a watershed year for LGBT rights. Bostock’s holding is crystal clear, but as 2020 comes to an end, the decision as a whole remains difficult to characterize neatly. When it was issued in late June, it immediately became a jurisprudential Rorschach test. Maybe Bostock was principled and textual.1 1.Ezra Ishmael Young, Bostock Is a Textualist Triumph, Jurist (June 25, 2020, 3:53 PM), https://www.jurist.org/commentary/2020/06/ezra-young-bostock-textualist-triumph/ [https://perma.cc/R4T7-TGTV].Show More Or maybe it was autocratic diktat2 2.See Bostock v. Clayton County, 140 S. Ct. 1731, 1755–56 (2020) (Alito, J., dissenting); Ross Douthat, Opinion, The Tempting of Neil Gorsuch, N.Y. Times (June 20, 2020), https://www.nytimes.com/2020/06/20/opinion/sunday/neil-gorsuch-supreme-court.html [https://perma.cc/CMH8-SZ6S].Show More—or a trojan horse3 3.Joe Patrice, Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion, Above L. (June 15, 2020, 1:22 PM), https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion.Show More—or even the death of conservative judging itself.4 4.E.g.,Josh Hawley, Was It All for This? The Failure of the Conservative Legal Movement, Pub. Discourse (June 16, 2020), https://www.thepublicdiscourse.com/2020/06/65043/ [https://perma.cc/55EL-FR7L].Show More But no matter what the decision might augur for the Roberts Court, it remains true that an employer who fires a person for being gay or transgender violates Title VII of the Civil Rights Act.5 5.Bostock, 140 S. Ct. at 1754.Show More

For transgender Americans, Bostock means even more than what it says: the decision humanizes us in a setting where we are only rarely seen.6 6.See, e.g., Chase Strangio, The Trans Future I Never Dreamed Of, Atlantic (June 24, 2020), https://www.theatlantic.com/ideas/archive/2020/06/trans-future-i-never-dreamed/613­405/ [https://perma.cc/2SGX-EMFH].Show More This was the second time the Supreme Court found in a trans plaintiff’s favor,7 7.The first time the Court did so, it described the plaintiff as a “preoperative transsexual.” Farmer v. Brennan, 511 U.S. 825, 829 (1994) (addressing Eighth Amendment violations in prison housing).Show More but it was the first time the Court addressed transgender status head-on. Bostock is historic, and that makes it especially poignant in an election year that has spurred politicians to target trans identity.8 8.See, e.g., Stephanie Saul, A Virginia House Candidate Campaigns by Attacking ‘a Man Dressed as a Woman’, N.Y. Times (Aug. 16, 2020), https://www.nytimes.com/­2020/08/16/us/politics/lgbt-bob-good-congress-va.html [https://perma.cc/B2L4-3Y9R]; Sydney Bauer, Facebook Axes Political Ad Saying Trans Athletes Will ‘Destroy Girls Sports’, NBC News (Sept. 16, 2020, 5:22 PM), https://www.nbcnews.com/feature/nbc-out/facebook-axes-political-ad-saying-trans-athletes-will-destroy-girls-n1240262 [https://perma.cc/6CF6-AQHB].Show More

The critical reaction has been full of sound and fury, but the Bostock opinion itself has little bombast and less melodrama. Even more strangely, it seems to have no frame for trans identity at all. Transness9 9.I.e., transgender status. Susan Stryker’s glossary is recommended for those new to all these terms. Susan Stryker, Transgender History: The Roots of Today’s Revolution ch. 1, 1–44 (2d ed. 2017).Show More is taken for granted and presented without a scrap of theory. Even the old standby of gender identity appears precisely once in the majority opinion.10 10.See Bostock, 140 S. Ct. at 1739. Justice Kavanaugh barely mentions transness, seeid. at 1823 n.1 (Kavanaugh, J., dissenting), but Justice Alito frequently refers to “gender identity,” and he addresses the majority’s avoidance of the term. Id. at 1756 n.6 (Alito, J., dissenting).Show More Trans people simply have “one sex identified at birth and another today.”11 11.Id. at 1746 (majority opinion).Show More Without difficulty, without philosophizing, and without a single cite to Judith Butler,12 12.Judith Butler (they/she) is one of the world’s foremost philosophers of gender. Their anti-essentialist theory of gender has been incalculably influential. See Alona Ferber, Judith Butler on the Culture Wars, JK Rowling and Living in “Anti-intellectual Times,” New Statesman (Sept. 22, 2020), https://www.newstatesman.com/international/2020/09/judith-butler-culture-wars-jk-rowling-and-living-anti-intellectual-times [https://perma.cc/4Y34-CA8S]. Their work, particularly 1990’s Gender Trouble, midwifedthe field now known as queer theory. See id.; Cathy J. Cohen, Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?, 3 GLQ 437, 438 (1997). It is impossible to write about gender in a theoretical sense without referring to their work.Show More the majority isolates a straightforwardly textual (and surprisingly radical) argument: gender, identity, presentation, expression, sexuality, and physicality are ultimately inextricable from sex.13 13.See Bostock, 140 S. Ct. at 1742 (“[H]omosexuality and transgender status are inextricably bound up with sex.”); see alsoKatherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 8 (1995) (arguing that “[t]he wrong of sex discrimination must be understood to include all gender role stereotypes,” and that such a theory necessarily would protect transgender people); Ido Katri, Transgender Intrasectionality: Rethinking Anti-discrimination Law and Litigation, 20 U. Pa. J.L. & Soc. Change 51, 79 (2017) (arguing that “gender performance” is the common, “epistemological basis of . . . sex, sexual orientation, gender identity, and gender expression”).Show More Nothing is lost by avoiding “gender dysphoria” and “gender identity”; in fact, much is gained in the omission of these terms. The trans plaintiff can just be treated like everybody else. The angst and drama and ontology and metaphysics were never truly needed.

But Judith Butler still participates in Bostock, though she remains a background character. Bostock is more in accord with her thinking than one might expect: in a feat of convergent evolution, textualism and poststructuralism14 14.The critical framework that undergirds much of Butler’s work; in Butler’s view, poststructuralism is generally opposed to essentialism, binarism, and presumptions of universal meaning. See Bernard E. Harcourt, An Answer to the Question: ‘What is Poststructuralism?’ 2 (U. Chi. Pub. L. & Legal Theory Working Paper, Paper No. 156, 2007), https://ssrn.com/abstract=970348 [https://perma.cc/A3SH-KYTD].Show More arrive at similar results. This Essay seeks to explain how. First, I will describe an inclusive, trans-centered model of sex discrimination. Second, I will show how and why Bostock’s reasoning fits this inclusive model well. Third, I will note that other courts and lawyers may have hesitated to adopt this line of reasoning because of a commitment to a minoritarian frame that is both incomplete and counterproductive. Ultimately, trans equality is implicit in sex equality. By acknowledging this, Bostock empowers an inclusive theory of queer15 15.I use “queer” in its broadest sense, capturing all identities associated with the LGBT+ community. See Stryker, supra note 9, at 30–31.Show More and trans rights.

II. What Is Sex Discrimination?

A. Perception Theory

Philosophers, judges, and legal thinkers have long presumed a rigid distinction between the terms “gender” and “sex.”16 16.See, e.g., Judith Butler, Sex and Gender in Simone de Beauvoir’sSecond Sex, 72 Yale French Stud. 35, 35 (1986); J.E.B. v. Alabama, 511 U.S. 127, 157 n.1 (1994) (Scalia, J., dissenting); Melina C. Bell, Gender Essentialism and American Law: Why and How To Sever the Connection, 23 Duke J. Gender L. & Pol’y 163, 172 (2016).Show More Gender, the story goes, is composed of social norms and activities. Since its content is an artifact of culture, it is not entirely inherent; therefore, in the long run, gender can be altered—or even reconstituted into something else.17 17.See Butler, supra note 16, at 35; cf. Judith Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, 40 Theatre J. 519, 526 (1988) [hereinafter Butler, Performative Acts] (suggesting that gender is communicated through a performance, just as a role in a theatrical production is).Show More Sex, by contrast, is understood to comprise only biological facts.18 18.See, e.g., Richard A. Epstein, Gender Is for Nouns, 41 DePaul L. Rev. 981, 982–83 (1992). But seeFranke, supranote 13, at 5. It is possible to productively discuss sex and gender without resorting to prescriptive definitions. See, e.g., Maayan Sudai, Toward a Functional Analysis of “Sex” in Federal Antidiscrimination Law, 42 Harv. J.L. & Gender 421, 460–61 (2019).Show More

In practice, though, the distinction is less clear. “Sex” and “gender” were confused before this framework emerged, and they remained so even after it became more dominant.19 19.See David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 87 (2004).Show More Some are understandably frustrated by this overlap.20 20.See, e.g., J.E.B., 511 U.S. at 156 (Scalia, J., dissenting); Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev. (forthcoming 2020) (manuscript at 10), https://ssrn.com/abstract=3546552 [https://perma.cc/H4NU-KQ6P].Show More But the elision of “gender” and “sex” is natural, especially in the context of discrimination. The terms are fuzzy because the concepts themselves are too.

In society as currently constituted, sex and gender are intimately linked. To deny this is to confuse gender theory with gender fact.21 21.See Elizabeth Barnes, Gender and Gender Terms, 54 Noûs 704, 715 (2020).Show More Law has no choice but to acknowledge what is present: most children labeled with an “M” at birth are expected to behave and present in one way, and most children labeled with an “F” are expected to behave and present in another. Even if “sex” is assumed to refer only to physical traits and “gender” only to social ones, the two are not separable: social norms connect one to the other.22 22.See Katri, supra note 13, at 69–70.Show More And because sex and gender are connected, a person’s perceived sex will dictate which gender norms they are held to. Gendered discrimination—whomever it is applied to and whatever shape it takes—must always be “because of sex.”

B. Transing Price Waterhouse

Price Waterhouse v. Hopkins ably illustrates that link. Here are the facts: Ann Hopkins was up for promotion at her firm, but she was denied. Male partners thought that she was “macho” and needed “a course in charm school.” Her behavior was unacceptable; at Price Waterhouse, women were expected to maintain their femininity.23 23.Price Waterhouse v. Hopkins, 490 U.S. 228, 231, 235–36 (1989) (plurality opinion).Show More Under a standard of “but-for” causation, Hopkins made out a prima facie case for recovery under Title VII.24 24.Id. at 262–63, 279 (O’Connor, J., concurring in the judgment); accord Bostock v. Clayton County, 140 S. Ct. 1731, 1739–40 (2020).Show More Had Hopkins not been female, her masculinity would have been acceptable to the partnership. Therefore, she was disadvantaged “‘because of’ sex”—and Price Waterhouse violated the Civil Rights Act.25 25.Price Waterhouse, 490 U.S. at 241, 258.Show More

At first glance, Price Waterhouse seems simple. There’s a problem, though; one link is missing in the syllogism. How did the firm know that Hopkins was female?26 26.Let us assume that sex comprises only physical traits present at birth. Bostock, 140 S. Ct. at 1739.Show More Presumably, it did not inspect her genitals or karyotype her blood. That is not how anyone would evaluate an employee’s sex. Instead, Hopkins probably held herself out as a woman. She marked “female” on her job application. When she showed up to work, she dressed in a way that did not undermine that presumption, and when her co-workers looked at her, they did not see any physical traits inconsistent with the femaleness they assumed was there. What mattered was her perceived sex: because Ann Hopkins was understood to be female, she was expected to behave femininely too. Gender norms applied to her “because of sex.”

Now imagine this: it is 2021, and the facts of Price Waterhouse repeat. This time, though, the plaintiff is a trans woman. Call her Alice. She passes; she’s stealth27 27.A trans person “passes” when they are seen as cis. They have “gone stealth” when nobody in their everyday life knows that they are trans. See Meredith Talusan, Along with Pain, the Joy of Stealth, them. (May 26, 2020), https://www.them.us/story/along-with-pain-the-joy-of-stealth-meredith-talusan-fairest [https://perma.cc/WXT2-DNTY].Show More and has been for years; and she is always perceived as a woman. Just like Ann Hopkins thirty-two years before, she becomes a senior project manager at a major accounting firm. But she curses, acts “too macho,” and is denied a shot at partnership. She sues, pleading violations of Title VII. Since Alice’s facts are just like Ann’s, she survives her firm’s motion to dismiss, and the case proceeds to discovery. One way or another, the firm discovers Alice’s medical records and is simply delighted to learn that she is trans. What a boon! This woman was male all along.28 28.I.e., she has a penis and testes, and the firm reads these traits as proof of maleness. See Bostock, 140 S. Ct. at 1739.Show More Bostock’s holding does not apply because Alice was not dismissed for being trans. In fact, the firm never even knew she was transgender while she was employed. The but-for test fails, since Alice would have been fired just the same even if she had been cisgender. And the firm argues that Price Waterhouse is not on point, either: Alice’s dismissal could not have been “because of sex,” it says, because she actually conformed with sex stereotypes by being a masculine male. Maybe her dismissal was irrational and capricious; maybe her employer intended to discriminate and failed. But Title VII could not have been violated.

This result seems intuitively incorrect. And it is—because what matters is how Alice is seen. Sex discrimination is a social phenomenon, and for social purposes, Alice is indisputably female. Her legal sex is “F”; she presents herself as a woman; and not a thing suggested to her firm that she might lack a woman’s normative anatomy. In truth, her firm understood her as a woman. It treated her like a woman, and it fired her like one too. Title VII “prohibits certain motives, regardless of the state of the actor’s knowledge,” and so the firm’s perception is what makes the difference.29 29.EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (Scalia, J.); see Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“What matters . . . is that in the mind of the perpetrator the discrimination is related to the sex of the victim.”); Benjamin Eidelson, Discrimination and Disrespect 19–20 (2015).Show More

C. Trans Visibility

As Alice shows us, a passing trans woman suffers precisely the same sex discrimination that a cis woman does.30 30.Conversely, a closeted trans man also looks like a cis woman to an observer—and is therefore discriminated against as if he were one.Show More But what happens if a trans woman doesn’t pass? In that case, her transness is visible to a casual observer. Her “maleness” is apparent: the masculinity of her body clashes with the femininity of her presentation. This “clash” is often unpleasant for the observer, who may experience it as visceral revulsion.31 31.In the movies, a straight man will often vomit when he discovers that a woman he is attracted to is trans. See Disclosure, at 64:00–68:00 (Netflix 2020) (collecting examples).Show More It is unpleasant for the trans woman too, who may experience it as gender dysphoria.32 32.See Stryker, supra note 9, at 17–20. Anyone can feel gender dysphoria. The discomfort a woman might feel when she’s called “Sir” on the phone is gender dysphoria; so is the distress most men might feel if forced to wear a dress. Cf. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1117–18 (9th Cir. 2006) (en banc) (Kozinski, J., dissenting) (“Imagine, for example, a rule that all judges wear [makeup] while on the bench. . . . I would find such a regime burdensome and demeaning . . . . I suspect many of my colleagues would feel the same way.”).Show More Because of this incongruence, an identifiably trans woman cannot be treated like a cis man, no matter how “male” she looks.33 33.See Natalie Wynn, Gender Critical | ContraPoints, YouTube, at 13:51 (Mar. 30, 2019), https://youtu.be/1pTPuoGjQsI?t=831 [https://perma.cc/BX68-H7XY] (“When a trans woman doesn’t pass, it’s not like society simply treats her like a man. No, you get treated as monster gender, pronouns ‘it’ and ‘spit.’”).Show More Instead, she is an outlier.34 34.See Barnes, supra note 21, at 717; Katri, supra note 13, at 73.Show More Her form contradicts itself. That contradiction provokes disgust, which metastasizes into discrimination: she should not exist.

So once again, perception is what matters. A person who sees a misalignment can use it to infer transness, and that inference can motivate discrimination. It can also work the other way around: an employer can learn of a transition, interpret it as a per se misalignment, and dismiss an employee because of an ideological conviction that somebody appearing to be a man is estopped into that state forever.35 35.This conviction also motivated some courts to rule against trans plaintiffs. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984) (doubting that “a woman [could] be . . . created from what remains of a man”); Sonia K. Katyal, TheNumerus Clausus of Sex, 84 U. Chi. L. Rev. 389, 431–34 (2017).Show More This is what happened to Aimee Stephens, Bostock’s transgender plaintiff.36 36.See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 569 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020).Show More In Butlerian terms, the employer reads a visibly trans person as performing their gender incorrectly.37 37.See Butler, Performative Acts, supra note 17, at 527–28; Katri, supra note 13, at 71 (citing Judith Butler, Critically Queer, 1 GLQ 17, 17–32 (1993)).Show More The “wrongness” of a non-passing trans woman is a rejection of a person perceived to be “doing gender wrong.”

Price Waterhouse made it far more difficult to argue that discriminating against those “doing gender wrong” is permitted under Title VII.38 38.See Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“[T]he perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like’ one.”). But see Bostock, 140 S. Ct. at 1777–78 (Alito, J., dissenting).Show More Because perceived sex determines how one interprets a gender performance, perceived sex is central to transness itself. Discrimination is not and could not be a mere question of semantics.

D. Sex and Its Penumbrae

With this understanding of transphobia in hand, one can extend it to other kinds of discrimination too. It is easy to begin with trans identity; it is clear how closely trans is linked to sex. That is why this Essay began there, and maybe that is also why the federal courts have been friendly to trans plaintiffs for some time.39 39.See Paisley Currah, Transgender Rights Without a Theory of Gender?, 52 Tulsa L. Rev. 441, 445 (2017); Ezra Ishmael Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, 11 Calif. L. Rev. Online 9, 15–16 & n.33 (2020) (collecting cases).Show More In general terms, a discriminator assesses someone’s sex, determines that their behavior or presentation is inappropriate for that sex, and metes out punishment. Discriminating against an incorrect gender performance is sex discrimination; trans people are seen as doing gender wrong; and therefore, anti-transness relies on sex discrimination too.

This discriminatory process is general, and it can be applied to many kinds of nonconformity. Imagine the archetypal woman. What characterizes her? She appears to have a female and feminine body. She presents and holds herself out as a woman. And, of course, she prefers the company of men. All of these qualities are normatively associated with one another and linked up through her sex.40 40.Butler calls this phenomenon “the heterosexual matrix.” See David Gauntlett, Media, Gender and Identity 148 (2d ed. 2008).Show More And because these qualities are sex-related, they can all result in sex discrimination. Price Waterhouse is a perfect example: Ann Hopkins’s masculine behaviors are seen as inappropriate precisely because she is seen (and holds herself out as) a woman. The femininity of her body clashes with the masculinity of her presentation—and so, she is punished.41 41.Price Waterhouse v. Hopkins, 490 U.S. 228, 235–36 (1989).Show More Though she’s cis, she still performs her gender incorrectly. She is discriminated against in the same way and for the same reasons a trans plaintiff might be.42 42.See Young, supra note 39, at 22.Show More

Sex is at the center, and its penumbrae tend to generate identities that are often blurry, complex, ambiguous, or multivalent.43 43.See J. Halberstam, Transgender Butch: Butch/FTM Border Wars and the Masculine Continuum, 4 GLQ 287, 293–95 (1998). Many people see these identities as inherent to them; many do not. Focusing on perception frees us from having to decide which view is right. Cf. Currah, supra note 39, at 444 (describing the way debates about transgender rights often descend into debates about the nature of gender).Show More But this does not mean that sex must be a stable background. None of this must imply that trans women are simply “men in dresses”; that butch lesbians are merely inchoate trans men; or that nonbinary people are “just” nonconforming members of their sex (as assigned or perceived). Homophobia, transphobia, and sexism are not the same. But these forms of discrimination are similar—and even more importantly, they are interrelated. They are connected by a “complicated network of similarities.”44 44.Ludwig Wittgenstein, Philosophical Investigations ¶ 66 (P.M.S. Hacker & Joachim Schulte eds., G.E.M. Anscombe, P.M.S. Hacker & Joachim Schulte trans., 4th ed. 2009); see Butler, Performative Acts, supra note 17, at 529.Show More They intersect with, converge on, and return to sex, and focusing on sex will capture all of them at once.

Courts have struggled mightily to disentangle discrimination because of sex, gender, sexuality, and transness. But because these forms of bias are so closely linked, it is impossible to distinguish them consistently. As a consequence, the doctrine of sex equality descended into incoherence.45 45.Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minn. L. Rev. Headnotes 1, 10–11 (2020).Show More Some courts supposed that claims of sex discrimination were actually because of “sexual preference” and dismissed them;46 46.E.g., Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326 (5th Cir. 1978).Show More others emphasized that Title VII protected gender-nonconforming conduct, but that status was outside its bounds.47 47.E.g., Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1258 (11th Cir. 2017) (W. Pryor, J., concurring).Show More Some courts elided queerness and sex;48 48.E.g., Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492, 493 (9th Cir. 2009) (per curiam). The panel in Kastl included then-Judge Gorsuch, sitting by designation. Id.; see Young, supra note 39, at 31 (characterizing the decision as “pure Gorsuch”).Show More and finally, some concluded that the distinction was untenable and quit the field entirely.49 49.E.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2d Cir. 2018) (en banc) (Cabranes, J., concurring in the judgment) (“Zarda’s sexual orientation is a function of his sex. . . . That should be the end of the analysis.”), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020).Show More As the Eleventh Circuit put it:

A person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes. “[T]he [sic] very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.” There is thus a congruence between discriminating against transgender and transsexual individuals and discrimination on the basis of gender-based behavioral norms.50 50.Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (quoting Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Calif. L. Rev. 561, 563 (2007)). The panel, composed of Judges Barkett, W. Pryor, and Kravitch, was unanimous in its decision, suggesting that this was not a partisan finding. Id. at 1313; see Young, supra note 39, at 16 n.35.Show More

Price Waterhouse simply made it impossible to keep every queer plaintiff out. As more and more of them brought their claims, the line drawing became impossible, the categories became confused, and their entanglement was laid bare for all to see.51 51.See Jessica A. Clarke, How the First Forty Years of Circuit Precedent Got Title VII’s Sex Discrimination Provision Wrong, 98 Tex. L. Rev. Online 83, 113–17 (2019).Show More Over time, it became undeniably clear that the feminine man, the gay man, and the (visibly) trans man are punished for essentially the same transgression.52 52.See Katri, supra note 13, at 70.Show More As the courts saw, sex is a powerful thing—it has deep roots and manifold effects. And so, addressing sex discrimination often means attacking anti-queerness too.

III. Why Bostock Got It Right . . . 

Bostock’s theory of sex discrimination is nothing new. It is not new to activists,53 53.SeeCary Franklin, The Anti-stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 115–16 (2010).Show More academics,54 54.See, e.g.,Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208 (1994).Show More or judges.55 55.See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1750–51 (2020); Winstead v. Lafayette Cnty. Bd. of Cnty. Comm’rs, 197 F. Supp. 3d 1334, 1346–47 (N.D. Fla. 2016).Show More Courts, however, have distinguished an “analytic” or per se theory of queer protections from one that derives from the sex-stereotyping holding of Price Waterhouse.56 56.SeeWinstead, 197 F. Supp. 3d at 1343–46.Show More Bostock makes clear, once and for all, that these theories are one and the same. Sex stereotyping is per se “because of sex”; anti-queer discrimination is per se sex stereotyping. No matter how you get there, anti-queer discrimination must be “because of sex.” Remember: a person’s queer status is defined by queer conduct, and queer conduct is marked only because it transgresses gender norms. These norms, in turn, are deeply linked to sex.

Bostock’s logic is textual, but it sees this fact-based argument—and that means that it acknowledges how sex discrimination truly works. The Court was not ignorant of the mechanics of sex discrimination. One amicus brief clarified just how difficult distinguishing sex-based and sexuality-based discrimination is in the world at large.57 57.SeeBrief of Serv. Emps. Int’l Union, Int’l Brotherhood of Teamsters & Jobs with Just. as Amici Curiae in Support of the Employees at 8, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107).Show More Another noted that “[t]he oppression of women and that of gay people are interdependent and spring from the same roots, though they take different forms.”58 58.Brief of Historians as Amici Curiae in Support of Employees at 31–32, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107) (internal quotations omitted).Show More

This emphasis on the diversity, fluidity, and breadth of sex discrimination produces Bostock. And that universalizing push guides the opinion to a general theory of sex discrimination that supersedes the reasoning of Price Waterhouse. Gender nonconformity is not a separate cause of action under Title VII—it never was.59 59.See alsoEvans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1260 (11th Cir. 2017) (W. Pryor, J., concurring) (“The doctrine of gender nonconformity is not an independent vehicle for relief.”).Show More But under Bostock’s logic, a person fired for gender nonconformity is necessarily fired “because of sex.” Had the employee been seen as a member of a different sex, their behavior would have been normative, and no dismissal would have occurred.

The Bostock test is inclusive, and that makes it flexible and robust. Picture this: a lesbian lawyer holds a “same-sex commitment ceremony” and is fired. The employer claims that she was fired not for being gay but for “flaunting her homosexuality.”60 60.Kenji Yoshino, Covering, 111 Yale L.J. 769, 776 (2002) (summarizing Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc)).Show More But Bostock still provides a cause of action. After all, had the lawyer been a man, “flaunting [his] sexuality” by honoring commitment to a woman would not have been offensive.61 61.See Bostock, 140 S. Ct. at 1741 (explaining that an employer who fires a man “for traits or actions it tolerates in his female colleague” violates Title VII).Show More The lesbian lawyer’s womanhood is a but-for cause of her dismissal. Thanks to Bostock, nobody needs to litigate whether the true cause of the dismissal was sex, gender expression, sexuality, or something else. Primary causation is irrelevant. Everything sex touches is included.

IV. . . . And Others Got It Wrong

If this approach is so natural, why did it take so long to accept it? Here is one answer: past courts were motivated by animosity to write queer people out of the law. Now that queer identity is less stigmatized, even-handedness is possible.62 62.See Clarke, supra note 51, at 121–22. Past courts also mistakenly focused on group rather than individual rights. See Anthony M. Kreis, Dead Hand Vogue, 54 U. Rich. L. Rev. 705, 707–08 (2020).Show More That is surely part of the story, but something else may also be at work.

Lawyers litigating civil rights are motivated to frame queer and trans people as a “discrete and insular minority.”63 63.United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938).Show More That is what the Supreme Court has said is needed to find protected status, after all.64 64.See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (describing “traditional indicia of suspectness”); id. at 104–05 (Marshall, J., dissenting) (citing Carolene Products to explain why certain classifications “call for close[r] judicial scrutiny”).Show More This minoritarian move is natural in American anti-discrimination law, whose principal target is racism. But race discrimination is not a neat analogue for anti-queerness. Neither race, ethnicity, nor national origin are chosen; therefore, their immutability seems to make them wrongful bases for discrimination.65 65.See Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 14–16 (2015).Show More By analogy, other wrongful bases are presumed to be immutable as well. Extending anti-discrimination protections to new groups prompts lawyers to characterize those groups in terms of immutable or near-immutable traits.66 66.See id. at 23–26.Show More That search for unchangeable qualities focuses the inquiry on status and obscures the contribution of behavior.

But immutability is not necessarily what makes a trait protected,67 67.Cf. Deborah Hellman, When Is Discrimination Wrong? 133 (2008) (suggesting that a characteristic shared between classic forms of wrongful discrimination may be mere “correlation” rather than the cause of their wrongfulness).Show More and relying on it is inappropriate. Transness is an identity, but when it is assumed to be stable, inherent, and immovable, the case for trans rights starts to sound like an argument for accommodation, rendered necessary by the harmful consequences of untreated gender dysphoria.68 68.See Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1292–93 (11th Cir. 2020); Jennifer L. Levi, Clothes Don’t Make the Man (or Woman), but Gender Identity Might, 15 Colum. J. Gender & L. 90, 104–10 (2006) (defending this approach).Show More The argument starts to sound like an excuse: transness must be tolerated not because it is worthy of respect but because dysphoria cannot be treated otherwise. The poor things just can’t help it.

A minoritizing emphasis on immutability is inaccurate as well. A status-first, “no-choice” analysis only really holds for vertical, heritable traits. These vertical identities are passed down generationally and therefore feel (or truly are) immutable. One is born into them. Queerness is entirely different: it is a “horizontal” trait that is usually not shared across generations.69 69.See Andrew Solomon, Far from the Tree: Parents, Children, and the Search for Identity 2–3 (2012).Show More Because it is a horizontal identity, queerness is adopted (identified with) more often than it is ascribed. Queerness requires coming out: first to yourself, then to others. It requires a chosen act.

And so, the behavior has pride of place because the identity is defined by its associated acts, whether they are actually performed or merely longed for. The act is inextricable: nobody can know that they are gay until they feel a gay desire. One must at least desire transition to be trans, and one must choose to manifest that status in some way: there is always a choice, even if the choice is effectively between transition and death.70 70.For many, dysphoria is so intense that transition truly feels like a matter of life and death. See Stephen T. Russell, Amanda M. Pollitt, Gu Li & Arnold H. Grossman, Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation and Behavior Among Transgender Youth, 63 J. Adolescent Health 503, 505 (2018) (finding that proxies for social transition predict decreases in suicidal behavior). For others, dysphoria merely impairs one’s quality of life. See Emily VanDerWerff, The Catastrophist, or: On Coming Out as Trans at 37, Vox (June 3, 2019, 10:00 AM), https://www.vox.com/culture/2019/6/3/18647615/­coming-out-transgender-handmaids-tale-emily-todd-vanderwerff (“I could have lived as a man for the rest of my life . . . . I did not find it literally impossible, as so many trans women do. And yet to live as a man was to take such bad care of myself that ‘the rest of my life’ drastically shortened.”). I could have kept living too—but it would have been a very stunted life.Show More Discrimination requires visibility; visibility requires being out; and being out means choosing to be out. Thus, to imagine a queer identity that can be subject to discrimination as something separable from chosen acts is to deeply, fundamentally misunderstand that identity.

Queerness is therefore a poor fit for an anti-discrimination law focused on immutability. But its act-contingent nature makes it perfect for the conduct-focused Title VII. The Title VII analysis need not presume some stable category; it does not need to classify status to confer protection. Bostock acknowledges this, and it arrives at inclusivity by centering behavior: “Employers fire, single out, discriminate (against), penalize. Infants are ‘identified as’ male or female. . . . Individuals are penalized for particular ‘traits or actions.’”71 71.Paisley Currah, How a Conservative Legal Perspective Just Saved LGBT Rights, Bos. Rev. (June 19, 2020), https://www.bostonreview.net/gender-sexuality/paisley-currah-how-conservative-legal-perspective-just-saved-lgbt-rights [https://perma.cc/6Q2L-7UKH] (inter­nal quotations omitted).Show More

Because Bostock correctly centers conduct and not status, its choice of language should not be surprising. Why does the decision avoid “gender identity”? Maybe gender has little place in a law dedicated to sex; maybe gender necessarily brings sex along with it. Or maybe gender identity is the wrong way to think about transness. After all, a trans woman and a cis woman have precisely the same gender identity: woman. When gender identity becomes the key to transness, what results is language that only permits trans people to identify, whereas cis people are simply permitted to be.72 72.Florence Ashley, The Constitutive In/visibility of the Trans Legal Subject: A Case Study, 28 UCLA Women’s L.J. (forthcoming 2021) (manuscript at 29–30) (on file with author).Show More Gender identity is certainly part of the puzzle, since anti-trans discrimination is “because of” gender identity just as it is “because of” sex. But gender identity is not what separates in-group from out-group. It comes as no surprise, then, that Bostock cautiously avoids it.

“Gender identity” has an even bigger problem. Applying the concept to transgender status not only decouples transness from sex but also renders it alien, foreign, and other.73 73.See id. (manuscript at 29); Paisley Currah & Shannon Minter, Unprincipled Exclusions: The Struggle To Achieve Judicial and Legislative Equality for Transgender People, 7 Wm. & Mary J. Women & L. 37, 50–51 (2000).Show More The word “identity” sounds flimsy: it could easily be arbitrary or chosen. By comparison, “sex” feels stable, constant, and determined. When transness is asserted to hinge on gender and not sex, it seems perfectly logical to suppose that trans people are similarly situated to cis members of the sex they were assigned at birth.74 74.See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610 n.10 (4th Cir. 2020), reh’g en banc denied, 2020 WL 5667294 (Sept. 22, 2020).Show More “Gender identity” makes it too easy to assume that a trans man is a “biological female” who merely identifies as male—and that therefore he is more like a cis woman than a cis man.75 75.See id. at 628 (Niemeyer, J., dissenting); Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1311 (11th Cir. 2020) (W. Pryor, C.J., dissenting).Show More The subjective language of identity combined with the pathologizing language of dysphoria can lead a judge to conclude that transness is no more than a delusion.76 76.This rhetorical tendency surfaces in the Grimm and Adams majorities, see infranote 79, and led, I believe, to the skeptical epistemic attitudes of the dissents. See supra note 75.Show More “Identifying as a man” becomes ridiculous, a flight of fancy no more reasonable than imagining oneself a helicopter.77 77.See Harper Shalloe, “I Sexually Identify as an Attack Helicopter”, 6 TSQ 667, 667–68 (2019).Show More

V. Consequences and Conclusions

Bostock has begun working its way into lower court opinions. As it arrives, its clarifying power seems immense. This is easiest to see in August’s “bathrooms cases,” where divided panels of the Fourth and Eleventh Circuits found that schools that ban trans men from using the men’s bathroom violate both the Equal Protection Clause and Title IX.78 78.Grimm, 972 F.3d at 593; Adams, 968 F.3d at 1292.Show More The cases’ Equal Protection analyses wander here and there when describing transness: they touch on gender identity, dysphoria, stereotyping, and subordination on their way to describing their plaintiffs and the differential treatment that they suffered.79 79.See, e.g., Grimm, 972 F.3d at 608–10; Adams, 968 F.3d at 1291, 1302–04.Show More By contrast, the Title IX discussions are clear as day. Bostock makes equivocation and justification unnecessary. The decision obviates the endless rhetoric of stereotype and permits a simple finding that the plaintiffs were harmed because of their sex.80 80.See Grimm, 972 F.3d at 616; Adams, 968 F.3d at 1305. While Grimm cited Bostock for its Title IX analysis, the court also found that Price Waterhouse permitted a distinct “sex-stereotyping” claim. Grimm, 972 F.3d at 617 n.15. But seesupra Part III.Show More

So maybe Bostock’s odd directness is its genius; maybe queerness always was this simple. Maybe we never needed identity, dysphoria, psychology, pathology, endocrinology. All we needed were judges willing to see queer and trans people as they are.81 81.See Currah, supra note 39, at 446–47.Show More Bostock takes the implications of “sex” fully and seriously, and that makes sex’s implications easy to understand. Seneca Falls may not have been Stonewall,82 82.Bostock v. Clayton County, 140 S. Ct. 1731, 1828–29 (Kavanaugh, J., dissenting).Show More but it had the seeds of Stonewall in it. In the end, we are all included in Bostock. And trans rights always were human rights.

  1. * J.D. Candidate, University of Virginia School of Law (expected 2022). Endless thanks are owed, inter alios, to Florence Ashley, Holly Chaisson, D Dangaran, Chloe S. Fife, Brian L. Frye, J. Remy Green, Deborah Hellman, Leslie Kendrick, Hanaa Khan, Kevin Krotz, Kevin G. Schascheck, Jack Vallar, and Sarah Stewart Ware. ↑
  2. † Steven Rascón, Transitioning with Grace: Coming Out in Academia, Calif. Mag. (Fall 2020), https://alumni.berkeley.edu/california-magazine/fall-2020/transitioning-with-grace-lavery-coming-out-in-academia [https://perma.cc/8FKF-67PJ]. ↑
  3. Ezra Ishmael Young, Bostock Is a Textualist Triumph, Jurist (June 25, 2020, 3:53 PM), https://www.jurist.org/commentary/2020/06/ezra-young-bostock-textualist-triumph/ [https://perma.cc/R4T7-TGTV]. ↑
  4. See Bostock v. Clayton County, 140 S. Ct. 1731, 1755–56 (2020) (Alito, J., dissenting); Ross Douthat, Opinion, The Tempting of Neil Gorsuch, N.Y. Times (June 20, 2020), https://www.nytimes.com/2020/06/20/opinion/sunday/neil-gorsuch-supreme-court.html [https://perma.cc/CMH8-SZ6S]. ↑
  5. Joe Patrice, Neil Gorsuch Lays Landmines Throughout LGBTQ Discrimination Opinion, Above L. (June 15, 2020, 1:22 PM), https://abovethelaw.com/2020/06/neil-gorsuch-lays-landmines-throughout-lgbtq-discrimination-opinion. ↑
  6. E.g.,Josh Hawley, Was It All for This? The Failure of the Conservative Legal Movement, Pub. Discourse (June 16, 2020), https://www.thepublicdiscourse.com/2020/06/65043/ [https://perma.cc/55EL-FR7L]. ↑
  7. Bostock, 140 S. Ct. at 1754. ↑
  8. See, e.g., Chase Strangio, The Trans Future I Never Dreamed Of, Atlantic (June 24, 2020), https://www.theatlantic.com/ideas/archive/2020/06/trans-future-i-never-dreamed/613­405/ [https://perma.cc/2SGX-EMFH]. ↑
  9. The first time the Court did so, it described the plaintiff as a “preoperative transsexual.” Farmer v. Brennan, 511 U.S. 825, 829 (1994) (addressing Eighth Amendment violations in prison housing). ↑
  10. See, e.g., Stephanie Saul, A Virginia House Candidate Campaigns by Attacking ‘a Man Dressed as a Woman’, N.Y. Times (Aug. 16, 2020), https://www.nytimes.com/­2020/08/16/us/politics/lgbt-bob-good-congress-va.html [https://perma.cc/B2L4-3Y9R]; Sydney Bauer, Facebook Axes Political Ad Saying Trans Athletes Will ‘Destroy Girls Sports’, NBC News (Sept. 16, 2020, 5:22 PM), https://www.nbcnews.com/feature/nbc-out/facebook-axes-political-ad-saying-trans-athletes-will-destroy-girls-n1240262 [https://perma.cc/6CF6-AQHB]. ↑
  11. I.e., transgender status. Susan Stryker’s glossary is recommended for those new to all these terms. Susan Stryker, Transgender History: The Roots of Today’s Revolution ch. 1, 1–44 (2d ed. 2017). ↑
  12. See Bostock, 140 S. Ct. at 1739. Justice Kavanaugh barely mentions transness, see id. at 1823 n.1 (Kavanaugh, J., dissenting), but Justice Alito frequently refers to “gender identity,” and he addresses the majority’s avoidance of the term. Id. at 1756 n.6 (Alito, J., dissenting). ↑
  13. Id. at 1746 (majority opinion). ↑
  14. Judith Butler (they/she) is one of the world’s foremost philosophers of gender. Their anti-essentialist theory of gender has been incalculably influential. See Alona Ferber, Judith Butler on the Culture Wars, JK Rowling and Living in “Anti-intellectual Times,” New Statesman (Sept. 22, 2020), https://www.newstatesman.com/international/2020/09/judith-butler-culture-wars-jk-rowling-and-living-anti-intellectual-times [https://perma.cc/4Y34-CA8S]. Their work, particularly 1990’s Gender Trouble, midwifed the field now known as queer theory. See id.; Cathy J. Cohen, Punks, Bulldaggers, and Welfare Queens: The Radical Potential of Queer Politics?, 3 GLQ 437, 438 (1997). It is impossible to write about gender in a theoretical sense without referring to their work. ↑
  15. See Bostock, 140 S. Ct. at 1742 (“[H]omosexuality and transgender status are inextricably bound up with sex.”); see also Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 8 (1995) (arguing that “[t]he wrong of sex discrimination must be understood to include all gender role stereotypes,” and that such a theory necessarily would protect transgender people); Ido Katri, Transgender Intrasectionality: Rethinking Anti-discrimination Law and Litigation, 20 U. Pa. J.L. & Soc. Change 51, 79 (2017) (arguing that “gender performance” is the common, “epistemological basis of . . . sex, sexual orientation, gender identity, and gender expression”). ↑
  16. The critical framework that undergirds much of Butler’s work; in Butler’s view, poststructuralism is generally opposed to essentialism, binarism, and presumptions of universal meaning. See Bernard E. Harcourt, An Answer to the Question: ‘What is Poststructuralism?’ 2 (U. Chi. Pub. L. & Legal Theory Working Paper, Paper No. 156, 2007), https://ssrn.com/abstract=970348 [https://perma.cc/A3SH-KYTD]. ↑
  17. I use “queer” in its broadest sense, capturing all identities associated with the LGBT+ community. See Stryker, supra note 9, at 30–31. ↑
  18. See, e.g., Judith Butler, Sex and Gender in Simone de Beauvoir’s Second Sex, 72 Yale French Stud. 35, 35 (1986); J.E.B. v. Alabama, 511 U.S. 127, 157 n.1 (1994) (Scalia, J., dissenting); Melina C. Bell, Gender Essentialism and American Law: Why and How To Sever the Connection, 23 Duke J. Gender L. & Pol’y 163, 172 (2016). ↑
  19. See Butler, supra note 16, at 35; cf. Judith Butler, Performative Acts and Gender Constitution: An Essay in Phenomenology and Feminist Theory, 40 Theatre J. 519, 526 (1988) [hereinafter Butler, Performative Acts] (suggesting that gender is communicated through a performance, just as a role in a theatrical production is). ↑
  20. See, e.g., Richard A. Epstein, Gender Is for Nouns, 41 DePaul L. Rev. 981, 982–83 (1992). But see Franke, supra note 13, at 5. It is possible to productively discuss sex and gender without resorting to prescriptive definitions. See, e.g., Maayan Sudai, Toward a Functional Analysis of “Sex” in Federal Antidiscrimination Law, 42 Harv. J.L. & Gender 421, 460–61 (2019). ↑
  21. See David Haig, The Inexorable Rise of Gender and the Decline of Sex: Social Change in Academic Titles, 1945–2001, 33 Archives Sexual Behav. 87, 87 (2004). ↑
  22. See, e.g., J.E.B., 511 U.S. at 156 (Scalia, J., dissenting); Naomi Schoenbaum, The New Law of Gender Nonconformity, 105 Minn. L. Rev. (forthcoming 2020) (manuscript at 10), https://ssrn.com/abstract=3546552 [https://perma.cc/H4NU-KQ6P]. ↑
  23. See Elizabeth Barnes, Gender and Gender Terms, 54 Noûs 704, 715 (2020). ↑
  24. See Katri, supra note 13, at 69–70. ↑
  25. Price Waterhouse v. Hopkins, 490 U.S. 228, 231, 235–36 (1989) (plurality opinion). ↑
  26. Id. at 262–63, 279 (O’Connor, J., concurring in the judgment); accord Bostock v. Clayton County, 140 S. Ct. 1731, 1739–40 (2020). ↑
  27. Price Waterhouse, 490 U.S. at 241, 258. ↑
  28. Let us assume that sex comprises only physical traits present at birth. Bostock, 140 S. Ct. at 1739. ↑
  29. A trans person “passes” when they are seen as cis. They have “gone stealth” when nobody in their everyday life knows that they are trans. See Meredith Talusan, Along with Pain, the Joy of Stealth, them. (May 26, 2020), https://www.them.us/story/along-with-pain-the-joy-of-stealth-meredith-talusan-fairest [https://perma.cc/WXT2-DNTY]. ↑
  30. I.e., she has a penis and testes, and the firm reads these traits as proof of maleness. See Bostock, 140 S. Ct. at 1739. ↑
  31. EEOC v. Abercrombie & Fitch Stores, Inc., 135 S. Ct. 2028, 2033 (2015) (Scalia, J.); see Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“What matters . . . is that in the mind of the perpetrator the discrimination is related to the sex of the victim.”); Benjamin Eidelson, Discrimination and Disrespect 19–20 (2015). ↑
  32. Conversely, a closeted trans man also looks like a cis woman to an observer—and is therefore discriminated against as if he were one. ↑
  33. In the movies, a straight man will often vomit when he discovers that a woman he is attracted to is trans. See Disclosure, at 64:00–68:00 (Netflix 2020) (collecting examples). ↑
  34. See Stryker, supra note 9, at 17–20. Anyone can feel gender dysphoria. The discomfort a woman might feel when she’s called “Sir” on the phone is gender dysphoria; so is the distress most men might feel if forced to wear a dress. Cf. Jespersen v. Harrah’s Operating Co., 444 F.3d 1104, 1117–18 (9th Cir. 2006) (en banc) (Kozinski, J., dissenting) (“Imagine, for example, a rule that all judges wear [makeup] while on the bench. . . . I would find such a regime burdensome and demeaning . . . . I suspect many of my colleagues would feel the same way.”). ↑
  35. See Natalie Wynn, Gender Critical | ContraPoints, YouTube, at 13:51 (Mar. 30, 2019), https://youtu.be/1pTPuoGjQsI?t=831 [https://perma.cc/BX68-H7XY] (“When a trans woman doesn’t pass, it’s not like society simply treats her like a man. No, you get treated as monster gender, pronouns ‘it’ and ‘spit.’”). ↑
  36. See Barnes, supra note 21, at 717; Katri, supra note 13, at 73. ↑
  37. This conviction also motivated some courts to rule against trans plaintiffs. See Ulane v. E. Airlines, Inc., 742 F.2d 1081, 1087 (7th Cir. 1984) (doubting that “a woman [could] be . . . created from what remains of a man”); Sonia K. Katyal, The Numerus Clausus of Sex, 84 U. Chi. L. Rev. 389, 431–34 (2017). ↑
  38. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560, 569 (6th Cir. 2018), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020). ↑
  39. See Butler, Performative Acts, supra note 17, at 527–28; Katri, supra note 13, at 71 (citing Judith Butler, Critically Queer, 1 GLQ 17, 17–32 (1993)). ↑
  40. See Schwenk v. Hartford, 204 F.3d 1187, 1202 (9th Cir. 2000) (“[T]he perpetrator’s actions stem from the fact that he believed that the victim was a man who ‘failed to act like’ one.”). But see Bostock, 140 S. Ct. at 1777–78 (Alito, J., dissenting). ↑
  41. See Paisley Currah, Transgender Rights Without a Theory of Gender?, 52 Tulsa L. Rev. 441, 445 (2017); Ezra Ishmael Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee Stephens, 11 Calif. L. Rev. Online 9, 15–16 & n.33 (2020) (collecting cases). ↑
  42. Butler calls this phenomenon “the heterosexual matrix.” See David Gauntlett, Media, Gender and Identity 148 (2d ed. 2008). ↑
  43. Price Waterhouse v. Hopkins, 490 U.S. 228, 235–36 (1989). ↑
  44. See Young, supra note 39, at 22. ↑
  45. See J. Halberstam, Transgender Butch: Butch/FTM Border Wars and the Masculine Continuum, 4 GLQ 287, 293–95 (1998). Many people see these identities as inherent to them; many do not. Focusing on perception frees us from having to decide which view is right. Cf. Currah, supra note 39, at 444 (describing the way debates about transgender rights often descend into debates about the nature of gender). ↑
  46. Ludwig Wittgenstein, Philosophical Investigations ¶ 66 (P.M.S. Hacker & Joachim Schulte eds., G.E.M. Anscombe, P.M.S. Hacker & Joachim Schulte trans., 4th ed. 2009); see Butler, Performative Acts, supra note 17, at 529. ↑
  47. Andrew Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, 105 Minn. L. Rev. Headnotes 1, 10–11 (2020). ↑
  48. E.g., Smith v. Liberty Mut. Ins. Co., 569 F.2d 325, 326 (5th Cir. 1978). ↑
  49. E.g., Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1258 (11th Cir. 2017) (W. Pryor, J., concurring). ↑
  50. E.g., Kastl v. Maricopa Cnty. Cmty. Coll. Dist., 325 F. App’x 492, 493 (9th Cir. 2009) (per curiam). The panel in Kastl included then-Judge Gorsuch, sitting by designation. Id.; see Young, supra note 39, at 31 (characterizing the decision as “pure Gorsuch”). ↑
  51. E.g., Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2d Cir. 2018) (en banc) (Cabranes, J., concurring in the judgment) (“Zarda’s sexual orientation is a function of his sex. . . . That should be the end of the analysis.”), aff’d sub nom. Bostock v. Clayton County, 140 S. Ct. 1731 (2020). ↑
  52. Glenn v. Brumby, 663 F.3d 1312, 1316 (11th Cir. 2011) (quoting Ilona M. Turner, Sex Stereotyping Per Se: Transgender Employees and Title VII, 95 Calif. L. Rev. 561, 563 (2007)). The panel, composed of Judges Barkett, W. Pryor, and Kravitch, was unanimous in its decision, suggesting that this was not a partisan finding. Id. at 1313; see Young, supra note 39, at 16 n.35. ↑
  53. See Jessica A. Clarke, How the First Forty Years of Circuit Precedent Got Title VII’s Sex Discrimination Provision Wrong, 98 Tex. L. Rev. Online 83, 113–17 (2019). ↑
  54. See Katri, supra note 13, at 70. ↑
  55. See Cary Franklin, The Anti-stereotyping Principle in Constitutional Sex Discrimination Law, 85 N.Y.U. L. Rev. 83, 115–16 (2010). ↑
  56. See, e.g., Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. Rev. 197, 208 (1994). ↑
  57. See, e.g., Bostock v. Clayton County, 140 S. Ct. 1731, 1750–51 (2020); Winstead v. Lafayette Cnty. Bd. of Cnty. Comm’rs, 197 F. Supp. 3d 1334, 1346–47 (N.D. Fla. 2016). ↑
  58. See Winstead, 197 F. Supp. 3d at 1343–46. ↑
  59. See Brief of Serv. Emps. Int’l Union, Int’l Brotherhood of Teamsters & Jobs with Just. as Amici Curiae in Support of the Employees at 8, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107). ↑
  60. Brief of Historians as Amici Curiae in Support of Employees at 31–32, Bostock, 140 S. Ct. 1731 (Nos. 17-1618, 17-1623, 18-107) (internal quotations omitted). ↑
  61. See also Evans v. Ga. Reg’l Hosp., 850 F.3d 1248, 1260 (11th Cir. 2017) (W. Pryor, J., concurring) (“The doctrine of gender nonconformity is not an independent vehicle for relief.”). ↑
  62. Kenji Yoshino, Covering, 111 Yale L.J. 769, 776 (2002) (summarizing Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) (en banc)). ↑
  63. See Bostock, 140 S. Ct. at 1741 (explaining that an employer who fires a man “for traits or actions it tolerates in his female colleague” violates Title VII). ↑
  64. See Clarke, supra note 51, at 121–22. Past courts also mistakenly focused on group rather than individual rights. See Anthony M. Kreis, Dead Hand Vogue, 54 U. Rich. L. Rev. 705, 707–08 (2020). ↑
  65. United States v. Carolene Prods. Co., 304 U.S. 144, 152 n.4 (1938). ↑
  66. See, e.g., San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 28 (1973) (describing “traditional indicia of suspectness”); id. at 104–05 (Marshall, J., dissenting) (citing Carolene Products to explain why certain classifications “call for close[r] judicial scrutiny”). ↑
  67. See Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 14–16 (2015). ↑
  68. See id. at 23–26. ↑
  69. Cf. Deborah Hellman, When Is Discrimination Wrong? 133 (2008) (suggesting that a characteristic shared between classic forms of wrongful discrimination may be mere “correlation” rather than the cause of their wrongfulness). ↑
  70. See Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1292–93 (11th Cir. 2020); Jennifer L. Levi, Clothes Don’t Make the Man (or Woman), but Gender Identity Might, 15 Colum. J. Gender & L. 90, 104–10 (2006) (defending this approach). ↑
  71. See Andrew Solomon, Far from the Tree: Parents, Children, and the Search for Identity 2–3 (2012). ↑
  72. For many, dysphoria is so intense that transition truly feels like a matter of life and death. See Stephen T. Russell, Amanda M. Pollitt, Gu Li & Arnold H. Grossman, Chosen Name Use Is Linked to Reduced Depressive Symptoms, Suicidal Ideation and Behavior Among Transgender Youth, 63 J. Adolescent Health 503, 505 (2018) (finding that proxies for social transition predict decreases in suicidal behavior). For others, dysphoria merely impairs one’s quality of life. See Emily VanDerWerff, The Catastrophist, or: On Coming Out as Trans at 37, Vox (June 3, 2019, 10:00 AM), https://www.vox.com/culture/2019/6/3/18647615/­coming-out-transgender-handmaids-tale-emily-todd-vanderwerff (“I could have lived as a man for the rest of my life . . . . I did not find it literally impossible, as so many trans women do. And yet to live as a man was to take such bad care of myself that ‘the rest of my life’ drastically shortened.”). I could have kept living too—but it would have been a very stunted life. ↑
  73. Paisley Currah, How a Conservative Legal Perspective Just Saved LGBT Rights, Bos. Rev. (June 19, 2020), https://www.bostonreview.net/gender-sexuality/paisley-currah-how-conservative-legal-perspective-just-saved-lgbt-rights [https://perma.cc/6Q2L-7UKH] (inter­nal quotations omitted). ↑
  74. Florence Ashley, The Constitutive In/visibility of the Trans Legal Subject: A Case Study, 28 UCLA Women’s L.J. (forthcoming 2021) (manuscript at 29–30) (on file with author). ↑
  75. See id. (manuscript at 29); Paisley Currah & Shannon Minter, Unprincipled Exclusions: The Struggle To Achieve Judicial and Legislative Equality for Transgender People, 7 Wm. & Mary J. Women & L. 37, 50–51 (2000). ↑
  76. See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610 n.10 (4th Cir. 2020), reh’g en banc denied, 2020 WL 5667294 (Sept. 22, 2020). ↑
  77. See id. at 628 (Niemeyer, J., dissenting); Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1311 (11th Cir. 2020) (W. Pryor, C.J., dissenting). ↑
  78. This rhetorical tendency surfaces in the Grimm and Adams majorities, see infra note 79, and led, I believe, to the skeptical epistemic attitudes of the dissents. See supra note 75. ↑
  79. See Harper Shalloe, “I Sexually Identify as an Attack Helicopter”, 6 TSQ 667, 667–68 (2019). ↑
  80. Grimm, 972 F.3d at 593; Adams, 968 F.3d at 1292. ↑
  81. See, e.g., Grimm, 972 F.3d at 608–10; Adams, 968 F.3d at 1291, 1302–04. ↑
  82. See Grimm, 972 F.3d at 616; Adams, 968 F.3d at 1305. While Grimm cited Bostock for its Title IX analysis, the court also found that Price Waterhouse permitted a distinct “sex-stereotyping” claim. Grimm, 972 F.3d at 617 n.15. But see supra Part III. ↑
  83. See Currah, supra note 39, at 446–47. ↑
  84. Bostock v. Clayton County, 140 S. Ct. 1731, 1828–29 (Kavanaugh, J., dissenting). ↑
©Virginia Law Review Association. All rights reserved.