Home Slideshow

Editing Classic Books: A Threat to the Public Domain?

Over the past few years, there has been a growing trend in the publishing industry of hiring sensitivity readers to review books for offensive tropes or racial, gender, or sexual stereotypes. In February 2023, for instance, reports that Puffin Books had edited several classics by Roald Dahl—in consultation with sensitivity readers—generated immediate backlash from the public and several renowned authors and politicians. While most of that backlash focused on accusations of “censorship” and “cancel culture,” this Essay examines an actual legal consequence of revising classic books: the creation of copyrightable derivative works in updated editions. Derivative works are new works based on or built off of preexisting works. The creator of a derivative work can obtain copyright protection by adding sufficient original expression to the preexisting work. The creation of derivative works, especially from public domain works, is generally encouraged because derivative works can foster creativity, disseminate culture and knowledge, and allow original works to reach new audiences. However, this right can also be misused and misapplied. Specifically, while copyright in derivative works only extends to the new materials added to an underlying work, there are instances where overreaching copyright claims and ambiguous lines between the original work and the derivative work can have the practical effect of extending exclusive rights in the original underlying works. This Essay examines instances where editors have claimed copyright in new illustrations or new editions of classic books. More specifically, it considers the potential creation of copyrightable derivative works when editors revise and publish new editions that remove cultural, ethnic, and gender stereotypes. It argues that copyright law must strike a balance to ensure that follow-on creativity is encouraged and editors are rewarded for updating classic books to suit a modern readership, but it must also guard against the inadvertent consequence of diminishing the public domain of classic books.

Introduction

Some called it “absurd censorship.”1 1.Salman Rushdie (@SalmanRushdie), Twitter (Feb. 18, 2023, 5:41 PM), https://twitter.‌com/‌SalmanRushdie/status/1627075835525210113 [https://perma.cc/28DV-U‌NWF].Show More Others labeled it “corporate safetyism.”2 2.Helen Lewis, Roald Dahl Can Never Be Made Nice, Atlantic (Feb. 21, 2023), https://www.theatlantic.com/ideas/archive/2023/02/without-nastiness-roald-dahl-isnt-roald-dahl/673141/ [https://perma.cc/73B5-NEXP].Show More It was criticized as “cultural vandalism,”3 3.Brendan O’Neill, The Rewriting of Roald Dahl Is an Act of Cultural Vandalism, Spectator (Feb. 19, 2023, 10:57 AM), https://www.spectator.co.uk/article/the-rewriting-of-roald-dahl-is‌-an-act-of-cultural-vandalism/ [https://perma.cc/SAG9-USZ4].Show More “the woke’s ‘war’ against culture,”4 4.Sky News Austl., ‘Vandalism’: Roald Dahl the ‘Latest Victim’ of the Woke’s ‘War’ Against Culture, YouTube (Feb. 20, 2023), https://www.youtube.com/watch?v=K7crI‌cZ‌3qM [https://perma.cc/6VKJ-VMNU].Show More and “gobblefunk[ing] around with words.”5 5.William James, UK PM Sunak Condemns ‘Gobblefunk’ Changes to Roald Dahl’s Books, Reuters (Feb. 20, 2023, 10:25 AM), https://www.reuters.com/lifestyle/uk-pm-sunak-condemn‌s-gobblefunk-changes-roald-dahls-books-2023-02-20/ [https://perma.cc/WNV2-QUGP].Show More In February 2023, news outlets reported that Puffin Books, a subsidiary of Penguin Random House and publisher of Roald Dahl’s books, had edited at least ten of Dahl’s classic children’s books to “make them less offensive and more inclusive.”6 6.Derrick Bryson Taylor, Roald Dahl’s Books Are Rewritten to Cut Potentially Offensive Language, N.Y. Times (Feb. 20, 2023), https://www.nytimes.com/2023/02/20/books/roald-dahl-books-changes.html [https://perma.cc/2X6N-8R4X]. See generally Ed Cumming, Abigail Buchanan, Genevieve Holl-Allen & Benedict Smith, Roald Dahl Rewritten: The Hundreds of Changes Made to Suit a New ‘Sensitive’ Generation, Telegraph (Feb. 24, 2023, 4:20 PM), https://www.telegraph.co.uk/news/2023/02/17/‌roald-dahl-books-rewritten-offensi‌v‌e-matilda-witches-twits/#:~:text=By%20comparing%20the%20latest%20editions,‌are%‌2‌0n‌ow%20the%20Cloud%2DPeople [https://perma.cc/C89B-HDG2] (comparing older and newer excerpts from Roald Dahl’s books).Show More With the public’s increasing awareness of racial, gender, and sexual stereotypes in classic books, more publishers appear to be hiring sensitivity readers to review books for offensive tropes and insensitive content. In consultation with sensitivity readers, Puffin Books published new editions of Dahl’s classic books, altering words used to describe characters’ appearances, race, gender, weight, and mental health. These edits included, for instance, removing descriptions of children as “fat,” women as “ugly,” and people as “crazy,” replacing phrases like “you old hag” with “you old crow,” and updating “weird African language” so it was no longer “weird.”7 7.Cumming et al., supra note 6.Show More The public backlash to the news was immediate and attracted criticism from several high-profile public figures, including renowned authors Salman Rushdie and Philip Pullman,8 8.Rushdie, supra note 1; Taylor, supra note 6.Show More filmmaker Wes Anderson,9 9.Christian Holub, Wes Anderson Criticizes Editing of Roald Dahl Books to Remove ‘Offensive’ Language: ‘What’s Done Is Done,’ Ent. Wkly. (Sept. 1, 2023, 1:36 PM), https://ew.com/movies/wes-anderson-criticizes-editing-of-roald-dahl-books-i-dont-even-wan‌t-the-artist-to-modify-their-work/ [https://perma.cc/5QHS-83LX].Show More U.K. Prime Minister Rishi Sunak,10 10.James, supra note 5.Show More U.K. Queen Consort Camilla,11 11.Jane Dalton, Queen Consort Attacks Censorship of Authors as Roald Dahl Row Rages, Independent (Feb. 23, 2023, 5:49 PM), https://www.independent.co.uk/life-style/royal-family/camilla-queen-roald-dahl-censorship-b2288196.html [https://perma.cc/TXN2-MV‌KA].Show More and the CEO of powerful nonprofit organization PEN America.12 12.Armani Syed, Why Rewrites to Roald Dahl’s Books Are Stirring Controversy, Time (Feb. 21, 2023, 1:21 PM), https://time.com/6256980/roald-dahl-censorship-debate/ [https://perma.‌cc/82ST-AF2S].Show More Shortly after the Dahl controversy, certain media outlets reported that Scholastic Corporation had similarly revised R.L. Stine’s popular Goosebumps series, and publishers had hired sensitivity readers to review and suggest updates to classic works by Agatha Christie and Ian Fleming, causing further public criticism.13 13.See, e.g., Lucy Knight, Sensitivity Readers: What Publishing’s Most Polarising Role Is Really About, Guardian (Mar. 15, 2023, 4:00 AM), https://www.theguardian.com/books/‌2023/mar/15/sensitivity-readers-what-publishings-most-polarising-role-is-really-about [https://perma.cc/THS6-VA2T]; Althea Legaspi, Agatha Christie Novels Edited to Remove Racist Language, Rolling Stone (Mar. 27, 2023), https://www.rollingstone.com/culture/‌culture-news/agatha-christie-novels-edited-remove-racist-language-1234704199/ [https://perma.cc/54GT-JE2T].Show More In spite of the significant media coverage and public discussion of those announcements, little attention has been paid to any actual legal controversy of revising classic books.

This Essay focuses on one possible legal consequence of revising classic books: the creation of copyrighted “derivative works” in updated editions of classics. Derivative works are new works based on or built off of preexisting works. The creator of a derivative work can obtain a copyright to the original expression that they add to the preexisting work. The creation of derivative works, especially from public domain works, is generally encouraged because they can foster creation, disseminate culture and knowledge, and allow original works to reach new audiences.14 14.The Public Domain and New Derivative Works, Authors All. (Jan. 12, 2021), https://www.authorsalliance.org/2021/01/12/the-public-domain-and-new-derivative-works/. [https://perma.cc/MNF9-ZAX3].Show More However, in certain circumstances, this right can have the practical effect of extending exclusive rights in original underlying works. Even though copyright in derivative works only extends to the new materials added to an underlying work, the difference between the original work and the derivative work is not always clear. Additionally, overreaching copyright claims and copyright assertions to trivial edits to classic books can threaten the public domain of classic books and disrupt the copyright bargain between creators and the public.

This Essay examines the potential creation of derivative works when editors revise and publish new editions of classic books to remove cultural, ethnic, and gender stereotypes, and how granting copyright to those new editions of classic books can incentivize the creation of socially valuable edits but also threaten the public domain of classic books. It proceeds as follows: Part I briefly highlights the many updates to classic books, especially children’s books, over the past decades. This history shows that revising classic books to update offensive terms or remove stereotypes is not a new practice. Part II explains the legal right that allows authors, copyright owners, and publishers to revise classic books, and provides some of the arguments for and against revising classic books. Part III describes how new editions of classic books could be considered copyrightable derivative works and provides examples of editors claiming copyright in their updated editions of classic books. Finally, Part IV examines some of the overreaching practices of editors claiming copyright in updated books to the detriment of the public domain.

I. A Brief History of Revising Classic Books

Editing books is not a new practice. Sometimes classic books are edited for accuracy and relevance, other times to decrease page numbers, and often to remove outdated or offensive racial stereotypes to make books more palatable to modern readers. Authors have often updated their own books. In 1974, ten years after Roald Dahl first published Charlie and the Chocolate Factory, he changed the Oompa Loompas from pygmies that Willy Wonka shipped from “the very deepest and darkest part of the African jungle where no white man had ever been before” to white people from Loompaland with long hair and rosy cheeks.15 15.Livia Gershon, Roald Dahl’s Anti-Black Racism, JSTOR Daily (Dec. 10, 2020), https://daily.jstor.org/roald-dahls-anti-black-racism/ [https://perma.cc/AU7X-87PL].Show More In 1978, Theodore Seuss Geisel, more commonly known as “Dr. Seuss,” removed the bright yellow skin and pigtail from an Asian character in his 1937 book And to Think That I Saw It on Mulberry Street and changed the accompanying text from “[a] Chinaman [w]ho eats with sticks” to “[a] Chinese man [w]ho eats with sticks.”16 16.Taylor Weik, Why Dr. Seuss Got Away with Anti-Asian Racism for So Long, NBC News (Mar. 12, 2021, 2:46 PM), https://www.nbcnews.com/news/asian-america/dr-seuss-got-away-anti-asian-racism-long-rcna381 [https://perma.cc/6KQL-8ZFV]; Katie Ishizuka & Ramón Stephens, The Cat Is Out of the Bag: Orientalism, Anti-Blackness, and White Supremacy in Dr. Seuss’s Children’s Books, 1 Rsch. on Diversity Youth Literature, Feb. 2019, at 1, 15, https://sophia.stkate.edu/cgi/viewcontent.cgi?article=1050&context=rdyl [https://perma.cc/6KQL-8ZFV].Show More Beginning in 1980, Richard Scarry updated his 1963 Best Word Book Ever to include father-bunny cooking in the kitchen alongside mother-bunny, change gendered terms like “pretty stewardess” to “flight attendant” and “policeman” to “police officer,” add a menorah to a holiday scene, and remove a stereotypical Native American outfit and feather headdress from a mouse in a canoe.17 17.Laura Willard, 8 Changes That Were Made to a Classic Richard Scarry Book to Keep Up with the Times. Progress!, Upworthy (Feb. 17, 2023), https://www.upworthy.com/8-changes-that-were-made-to-a-classic-richard-scarry-book-to-keep-up-with-the-times-progress [https://perma.cc/C82F-KKC7].Show More

There are other instances where authors’ heirs and copyright holders to classic books are faced with difficult decisions about how to keep classic works relevant, up-to-date, and unproblematic. In the afterword of the 1988 edition of his father Hugh Lofting’s 1920 The Story of Doctor Dolittle, Christopher Lofting summed up his challenge with making changes in that new edition.18 18.Christopher Lofting, Afterword toHugh Lofting, The Story of Doctor Dolittle 152–54 (1988).Show More On the one hand, a publisher’s job is to publish, not to censor. And, where classic works are involved, there is a principled argument they should not be tampered with at all. On the other hand, there was never an intent for Dolittle to be offensive, and the potentially offensive content was not an integral or important part of the story. Should Christopher Lofting nonetheless stand on principle, refuse to make changes, disrespect the feelings of others, and nudge the book into obsolescence, to be hidden away from future generations of children? Ultimately, he authorized changes to the book, including rewriting portions of chapters 11 and 12 about Dr. Dolittle’s escape from Prince Bumpo and his family to tone down their racial stereotyping and to remove references to Prince Bumpo’s dream of turning white.19 19.See Selma G. Lanes, Childrens’ Books; Doctor Dolittle, Innocent Again, N.Y. Times, Aug. 28, 1988, at 20, https://www.nytimes.com/1988/08/28/books/childrens-books-doctor-dolittle-innocent-again.html [https://perma.cc/S6QC-4XPV] (noting that “[t]he centenary edition’s new excisions and revisions are far more extensive” than previous edits to the books); Dewey W. Chambers, How Now, Dr. Dolittle?, 45 Elementary Eng., Apr. 1968, at 437, 438.Show More Christopher justified those edits based on his “strong belief that the author himself would have immediately approved of making these alterations.”20 20.Lofting, Afterword to The Story of Doctor Dolittle, supra note 18, at 153.Show More He added that his father “would have been appalled at the suggestion that any part of his work could give offense and would have been the first to have made the changes himself.”21 21.Id.Show More

The first books in the Nancy Drew mystery series were revised beginning in 1959 to remove racial and antisemitic stereotyping, such as the frequent description of criminals as “darker-complexioned and lower class,” and Nancy Drew solving mysteries through blatant racial profiling.22 22.Marjorie Ingall, Nancy Drew and the Case of the Politically Incorrect Children’s Books, Tablet Mag. (Dec. 17, 2013), https://www.tabletmag.com/sections/community/articles/nancy-drew [https://perma.cc/5U7G-SS3C]; Kelly Robinson, Dr Seuss‘Cancelled’? There’s Nothing New About Cutting Racism from Children’s Books, Guardian (Mar. 9, 2021, 12:15 PM), https://www.theguardian.com/books/2021/mar/09/dr-seuss-cancelled-theres-nothing-new-about-cutting-racism-from-childrens-books [https://perma.cc/QMX8-VVQC].Show More The Hardy Boys series faced similar issues with characters being portrayed through racial stereotypes, and was also updated beginning in 1959.23 23.Brandon Tensley, The Knotty Nostalgia of the Hardy Boys Series, Atlantic (Jan. 27, 2019), https://www.theatlantic.com/entertainment/archive/2019/01/reading-hardy-boys-nosta‌lgia-disappointment-racism/581071/ [https://perma.cc/H9Q5-ZQC8].Show More Older books, such as Mark Twain’s 1885 Adventures of Huckleberry Finn and Helen Bannerman’s 1899 The Story of Little Black Sambo, have also been edited, updated and, in the case of Sambo, entirely retold.24 24.See Matthew Fellion & Katherine Inglis, Censored: A Literary History of Subversion and Control 123 (2017); Brandon Murakami & Brianna Anderson, Mgambo, Sam, and the Tigers: Restorying Little Black Sambo Adaptations of the 1990s, Childs. Literature Educ., Feb. 18, 2022, at 1, 2, https://rdcu.be/cZeyP [https://perma.cc/6QRW-CSSB].Show More NewSouth Publishing, for instance, published an expurgated version of Huckleberry Finn in 2011 that changed a racial slur to the word “slave,” removed an offensive word for Native Americans, and changed “half-breed” to “half-blood.”25 25.Fellion & Inglis, supra note 24, at 123.Show More Sambo has gone through re-illustrations such as in the book The Story of Little Babaji, and several re-tellings that “offer[] readers a distinctively African-American hero,”26 26.Murakami & Anderson, supra note 24, at 3.Show More or create an “emancipatory retelling” of the original story.27 27.Id. at 11.Show More

More recently, Puffin Books updated Roald Dahl’s children’s books after employing sensitivity readers to review those books for controversial or offensive content.28 28.Taylor, supra note 6 (explaining that Puffin Books made changes to Roald Dahl’s books following collaboration with an organization that “champions diversity and accessibility in children’s literature”).Show More Scholastic Publishing, copyright holder to R.L. Stine’s Goosebumps book series, has similarly updated Stine’s popular children’s horror books to replace words such as “crazy” with “silly,” or describing a character as “cheerful” instead of “plump”—apparently without Stine’s knowledge.29 29.Raina Raskin, ‘Goosebumps’ Author Accuses Publisher of Unsanctioned Edits to His Beloved Children’s Series, N.Y. Sun (Mar. 8, 2023, 3:20 PM), https://www.nysun.com/‌article/goosebumps-author-accuses-publisher-of-unsanctioned-edits-to-his-beloved-childrens‌-series [https://perma.cc/GJ2W-GSRY].Show More Finally, recent news reported that both Ian Flemings’s works and Agatha Christie’s novels were also put through sensitivity readers to remove offensive language, including insults and references to race and ethnicity.30 30.Rachel Hall, Agatha Christie Novels Reworked to Remove Potentially Offensive Language, Guardian (Mar. 26, 2023, 9:36 AM), https://www.theguardian.com/‌books/‌2023/mar/26/agatha-christie-novels-reworked-to-remove-potentially-offensive-language [https://perma.cc/V4HQ-UTY5].Show More

II. The Right to Revise & Normative Arguments for Revisions

In all the scenarios above, the editors of classic books had the legal right to revise and publish new editions of those classic books. For books that are still protected by copyright, the copyright owner generally has the exclusive right to revise, republish, or authorize the revision and republication of new editions of their books. If the copyright term for a book has expired, the book is then in the public domain, which would allow anyone to revise and republish the book in any original or updated format.

Regardless of the editors’ legal rights to make changes to classic books, copyright owners and publishers have been accused of “censorship” and “cultural vandalism” when they make changes to classic books to reflect modern attitudes and sensitivities to social and cultural stereotypes.31 31.O’Neill, supra note 3.Show More There is no doubt that something is lost when a classic book is edited. Classic books occupy a special place in literary culture that, like great works of art or historic monuments, can make their preservation feel vital to the very existence of society’s shared heritage. Because of their status, any suggestion of changing them can feel like an attack on a society’s culture itself. Of course, whose shared heritage and whose culture these “classic” books represent are certainly up for debate, especially when original versions of those books included portrayals of people in hurtful or stereotypical ways. Nevertheless, editing classic books does rupture the artistic integrity of a work and can disturb the author’s original intent. It can also make it harder to contextualize a work and to understand the culture of the period in which the work was created. Instead of updating books to reflect modern attitudes, some authors have called for offensive books to be left alone and allowed to fade away or go out of print.32 32.Annabel Nugent, Philip Pullman Suggests Roald Dahl Books Should Go ‘Out of Print’ Amid Edits Controversy, Independent (Feb. 20, 2023, 10:22 AM), https://www.independ‌ent.co.uk/arts-entertainment/books/news/roald-dahl-philip-pullman-edits-b2285643.html [https://perma.cc/W4R6-3YLL].Show More Some publishers have simply ceased publishing or licensing problematic books, such as Dr. Seuss Enterprises’ March 2021 announcement that it would cease publishing and licensing Mulberry Street and five other children’s books.33 33.Statement from Dr. Seuss Enterprises, Seusville (Mar. 2, 2021), https://www.‌seussville.com/statement-from-dr-seuss-enterprises/ [https://perma.cc/7WTX-NMC9].Show More

Even though something might be lost when classic books are updated, there is also gain when books are updated for inclusivity. Words matter, especially words used to describe people in books, and children’s books should especially be held to a higher standard of sensitivity. Children learn about their society, culture, and world from the books that they read, and literature can affirm historically entrenched ideologies of race, gender, and class.34 34.Ishizuka & Stephens, supra note 16, at 6; Dorothy L. Hurley, Seeing White: Children of Color and the Disney Fairy Tale Princess, 74 J. Negro Educ. 221, 222–23 (2005).Show More Authors and publishers can also widen readership of their classic books by giving readers non-offensive alternatives to the original versions of classic books, allowing readers to choose the books they want to read and recommend. Disney Enterprises, for instance, frequently creates new stories or films based on preexisting public domain books, often changing the stories in the process to make them more palatable for children.35 35.The Public Domain and New Derivative Works, supra note 14.Show More This allows classic books and stories to evolve and reach new audiences. These gains may justify legal incentives to encourage editors to create updated versions of beloved classic books, and copyright can provide that incentive through protection of derivative works.

III. Creating Copyrighted Derivative
Works in Revised Classic Books

A new edition of a classic book could be considered a copyrightable derivative work. Derivative works are new works based on or built off of preexisting works. In order to create a derivative work, an editor must change an underlying work by adding “incremental original expression” or “‘nontrivial’ variation[s]” to the underlying work.36 36.See Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513, 520–21 (7th Cir. 2009).Show More The nontrivial variations “do[] not require a high degree of [incremental] originality,”37 37.Id. at 521 (internal quotation marks omitted).Show More but they must independently meet copyright’s low-threshold originality requirement. Some common creations of derivative works include translations, motion picture versions of books, sequels to a novel or motion picture, or new musical arrangements of a composition. A new, updated, or revised edition of a book is also a common type of derivative work, where “the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work.”38 38.Circular 14: Copyright in Derivative Works and Compilations, U.S. Copyright Off., https://www.copyright.gov/circs/circ14.pdf [https://perma.cc/85AQ-NF4V] (reviewed July 2020).Show More Derivative works can be created from works already in the public domain, such as when editors re-illustrated images for a classic like Little Black Sambo.39 39.Supra Part I.Show More They can also be created from works that are still protected by copyright if they are edited or authorized by the copyright owner, like Christopher Lofting’s new storyline added to Dolittle or Richard Scarry’s updated illustrations in his Best Word Book Ever.40 40.Id.Show More

While derivative works do not extend the original copyright terms of underlying works, the new copyrightable elements in those derivative works are protected under a new copyright term. This means that, even though the underlying work and any story elements in that original work might be in the public domain, a copyright owner could protect the newer elements they added to create a derivative work.41 41.Klinger v. Conan Doyle Est., Ltd., 755 F.3d 496, 500–02 (7th Cir. 2014).Show More For instance, Bannerman’s original Sambo, first published in 1899, is in the public domain. However, the newly illustrated book The Story of Little Babaji is a copyrighted derivative work.42 42.Linton Weeks, Taking a Tiger By the Tale: Little Black Sambo Loses Racist Elements in Two Retellings, Wash. Post (Sept. 17, 1996), https://www.washingtonpost.com/‌archive/‌lifestyle/1996/09/17/taking-a-tiger-by-the-tale-little-black-sambo-loses-racist-elements-in-tw‌o-retellings/3793375b-797e-422e-80cb-dbbc1e9cae72/ [https://perma.cc/NE58-YT23]; Helen Bannerman, The Story of Little Babaji (1st ed. 1996).Show More Therefore, even though copyright would not protect the storyline of Babaji, which was the same as Sambo, it would protect the added expressive elements in that new work—specifically the new illustrations in Babaji. The creator of Babaji registered his new edition with the U.S. Copyright Office in 1996 on the basis of the book’s “new illustrations, rev. & updated.”43 43.U.S. Copyright Off. Registration No. TX0004375179 (Sept. 24, 1996).Show More Similarly, Hugh Lofting’s original 1920 version of Dolittle may have entered the public domain in 1995, but the re-written story and elements added by Christopher in the 1988 derivative are protected by copyright and would remain off-limits for many more decades. The copyright notice in the 1988 edition of Dolittle confirms the copyright claim to the new edition:44 44.Hugh Lofting, The Story of Doctor Dolittle (1988).Show More

A close up of a book Description automatically generated

Because derivative works can also be created from copyrighted works, some derivative works may have material that enters the public domain at different times. For instance, Richard Scarry’s Best Word Book Ever, first published in 1963, will enter the public domain in 2059, but the illustrations he added to the 1980s derivative works will be protected under copyright law until January 1, 2065.45 45.What Could Have Entered the Public Domain on January 1, 2020? Under the Law that Existed Until 1978 . . . Works from 1963, Ctr. for Study Pub. Domain, https://web.law.‌duke.edu/cspd/publicdomainday/2020/pre-1976/#fn1text [https://perma.cc/N7Z3-W35Q] (last visited Sept. 15, 2023) (explaining that the “Copyright Term Extension Act expanded the term for works published in 1963 to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed,” while works published after January 1, 1978, enjoy copyright protection for “70 years after the date of the author’s death”); Eric Pace, Richard Scarry, 74, Children’s Book Author and Illustrator, Dies, N.Y. Times (May 3, 1994), https://www.nytimes.com/‌1994/‌05/‌03/‌obituar‌ies/richard-scarry-74-children-s-book‌-author-and-illustrator-dies.html [https://per‌ma.cc/9H‌VZ-9EME]. Because Richard Scarry died in 1994, the new illustrations he added beginning in 1980 will expire 70 years after his death, on January 1, 2065.Show More The copyright notice in the updated version of the book clarifies the copyright date for the new illustrations (© 1980) versus the original copyright date (© 1963):46 46.Richard Scarry, Richard Scarry’s Best Word Book Ever (1980).Show More

A close up of a book Description automatically generated

The revised books in the Nancy Drew series and The Hardy Boys series are likely in the same situation, where the original editions that were published beginning in 1930 will be in the public domain before their new editions that were published beginning in 1959. For instance, the first book in the Nancy Drew Mystery Stories, The Secret of the Old Clock, was published in 1930 and will enter the public domain by January 1, 2026.47 47.See Carolyn Keene, The Secret of the Old Clock (1987) (displaying 1930 as the original year of publication); see also Lloyd J. Jassin, New Rules for Using Public Domain Materials, CopyLaw.com, https://www.copylaw.com/new_articles/PublicDomain.html [https://perma.‌cc/‌MY32-XJJN] (last visited Oct. 10, 2023) (explaining that, under the Sony Bono Copyright Term Extension Act (“CTEA”), “a work published in 1930, if properly renewed, will expire at the end of 2025”).Show More The new and updated edition of The Secret of the Old Clock was published in 1959, which will enter the public domain by 2055.48 48.See Ingall, supra note 22 (discussing the 1959 revisions); see also What Could Have Entered the Public Domain on January 1, 2016? Under the Law that Existed Until 1978 . . . Works from 1959, Ctr. for Study Pub. Domain, https://web.law.duke.edu/‌cspd/publicdomainday/2016/pre-1976/ [https://perma.cc/VN4P-RC‌SP] (last visited Oct. 10, 2023) (noting that “under current copyright law, we’ll have to wait until 2055” for “works published in 1959”).Show More

This seems reasonable. Copyright owners and editors who contribute original expression to classic books should be rewarded with copyright exclusivity to their new and original contributions. The ability to protect their new contributions, updates, and edits to classic works could encourage editors to find original and creative ways to replace racist or sexist tropes, stereotypes, imagery, and content from classic books. This incentive might itself spur substantial creativity in discovering artful ways of removing offensive content from classic books without disrupting the artistic value and integrity of the underlying works. It may also allow classic books and stories to continue to remain relevant to new generations of readers.

Furthermore, under copyright law, the copyright in derivative works only extends to “‘the incremental additions of originality contributed by the authors of the derivative works.’”49 49.Klinger v. Conan Doyle Est., Ltd, 755 F.3d 496, 501–02 (7th Cir. 2014) (internal citation omitted); see also 17 U.S.C. § 103(b) (codifying that “[t]he copyright in a compilation or derivative work extends only to the material contributed by the author of such work . . . and does not imply any exclusive right in the pre-existing material”).Show More This means that the original version of a classic book will enter the public domain, and the creation of a new edition or derivative work should not extend or otherwise affect the original scope or duration of the copyright protection in the original preexisting work.50 50.17 U.S.C. § 103(b).Show More Nevertheless, as discussed below, sometimes the lines are not as clear in practice as they appear in the law.

IV. The Threat to the Public Domain

The copyright in a derivative work only covers the new material, including additions and changes, that appear in the work. However, it is not always easy to distinguish the original underlying work from the new copyrightable elements, and copyright owners can exploit this ambiguity to attempt to overextend their exclusive rights in classic books. The disputes over the use of the Sherlock Holmes character and the copyright protection of Anne Frank’s diary are examples of copyright owners protecting public domain works through their copyrighted derivative works.

Prior to the U.S. Court of Appeals for the Seventh Circuit’s 1994 ruling in Klinger v. Conan Doyle Estate, Ltd., the Doyle Estate regularly prevented follow-on creators from using the character Sherlock Holmes in their works, because—even though most of Doyle’s stories featuring Sherlock Holmes were in the public domain—the final ten stories were not.51 51.Mike Masnick, Sherlock Holmes and the Case of the Never Ending Copyright Dispute, TechDirt (May 26, 2015, 8:12 AM), https://www.techdirt.com/2015/05/26/sherlock-holmes-case-never-ending-copyright-dispute/ [https://perma.cc/PM6T-JQQR]. See generally Elizabeth L. Rosenblatt, The Adventure of the Shrinking Public Domain, 86 Colo. L. Rev.561 (2015) (explaining how copyright holders have tried to slow the entry of literary characters into the public domain and suggesting an examination of current copyright doctrine to protect the public domain from encroachment).Show More In Klinger, the Doyle Estate argued that Doyle had created a “‘single complex character complete in sixty stories’” over a thirty-year period and, therefore, the character of Sherlock Holmes was still protected by copyright because his character was inseparable from the later, still-protected short stories.52 52.Aaron Moss, “Enola Holmes” and the Case of the Overreaching Copyright Owner, Copyright Lately (Sept. 1, 2020) (internal citation omitted), https://copyrightlately.com/enola-holmes-copyright-infringement-case/ [https://perma.cc/PW3E-H2NV].Show More The court disagreed, finding that the Sherlock Holmes character entered the public domain when the copyright in the original books expired.53 53.Klinger, 755 F.3d at 502–03.Show More However, the court left open the possibility that certain features of the Holmes character that appeared only in the later still-copyrighted stories could be protected by copyright.54 54.Id. at 502.Show More

In 2020, the Doyle Estate again filed suit to stop a new Sherlock Holmes production, this time against Nancy Springer and Netflix over their production of the Enola Holmes films, which were based on Springer’s popular young adult mystery series about Sherlock Holmes’s sister.55 55.Moss, supra note 52; Complaint for Injunction and Damages at 2–3, Conan Doyle Est. Ltd. v. Springer, No. 20-cv-00610 (D.N.M. June 23, 2020), 2020 WL 3451968, at *2–3.Show More In Conan Doyle Estate Ltd. v. Springer, the Doyle Estate admitted that Sherlock Holmes’s character was in the public domain, but claimed that certain key attributes of Holmes were still protected by copyright.56 56.Moss, supra note 52.Show More According to the Doyle Estate, those new character traits included developing Holmes “into a character with a heart” who “became warmer,” “became capable of friendship,” “could express emotion,” and who “began to respect women.”57 57.Id. (quoting Complaint for Injunction and Damages at 7, Conan Doyle Est. Ltd., No. 20-cv-00610 (D.N.M. June 23, 2020)).Show More The Doyle Estate argued that these additional features of Holmes’s personality, only added in the later stories, were protected by the unexpired copyright in those later works.58 58.Id.Show More This dispute was settled out of court.

A similar dispute transpired in Europe over The Diary of a Young Girl, also known as Anne Frank’s diary. The Diary was originally written by Anne Frank while in hiding with her family in Nazi-occupied Amsterdam during World War II.59 59.Colin Dwyer, ‘Mein Kampf’ Enters Public Domain; Arguably, Anne Frank’s Diary May Too, NPR (Dec. 31, 2015, 7:48 PM), https://www.npr.org/sections/thetwo-way/2015/12/31/‌461606275/mein-kampf-enters-public-domain-arguably-anne-franks-diary-may-too [https://perma.cc/G4F4-ULBR].Show More Anne Frank tragically died in 1945 in the Bergen-Belsen Nazi concentration camp.60 60.Alison Flood, Anne Frank’s Diary Caught in Fierce European Copyright Battle, Guardian (Jan. 18, 2016, 3:00 AM), https://www.theguardian.com/books/2016/jan/18/anne-franks-diar‌y-caught-in-fierce-european-copyright-battle [https://perma.cc/M6JL-Q9JZ].Show More In January 2016, two French researchers published The Diary in its original Dutch language, arguing that the copyright to The Diary expired seventy years after Anne Frank’s death.61 61.Id.Show More Anne Frank Fonds—the foundation founded by Anne’s father Otto Frank, which owned the copyright to The Diary—denied that copyright in the book had expired. While the Fonds acknowledged that Anne Frank was the sole author of the original diaries, it claimed that the published versions of The Diary were in fact derivative works attributed to Otto Frank and children’s author and translator, Mirjam Pressler. Specifically, the Fonds claimed that they were “‘responsible for the various edited versions of fragments of the diary’” and that “‘the copyrights to these adaptations [published in 1947 and 1991, respectively] have been vested in Otto Frank and Mirjam Pressler.’”62 62.Id.Show More A cease and desist letter from the Fonds to one of the French researchers described how Otto Frank had created a new edition of the book when he “merged, or compiled, the two versions of the diary that Anne Frank left, that were both incomplete and that partly overlapped, into one reader-friendly version.” As a result, “[t]he book he created earns his own copyright” and “[f]or the purposes of copyright, [Otto] is to be viewed as an ‘author’ of that version.”63 63.Dwyer, supra note 59; see also Cease and Desist Letter from Anne Frank Fond to Oliver Ertzscheid (Dec. 28, 2015), reproduced at https://affordance.typepad.com//‌mon_weblog/‌2015/12/la-lettre-de-lavocat-du-fonds-anne-frank.html [https://perma.cc/JR9G-VDLW] (last visited Sept. 16, 2023) (alleging Otto Frank’s copyright claim to The Diary).Show More Therefore, Anne Frank’s original diaries may have entered the public domain on January 1, 2016,64 64.There is a separate dispute over whether The Diary entered the public domain seventy years after Anne Frank’s death. See, e.g., Natalia Mileszyk, Anne Frank and the Term of Copyright Protection: Why It’s Time to Move from Harmonisation to Unification, Communia (Apr. 25, 2016), https://communia-association.org/2016/04/25/anne-frank-term-copyright-protection-time-move-harmonisation-unification/ [https://perma.cc/L75Z-3NEZ]; see also Jacob Rogers, Wikimedia Foundation Removes The Diary of Anne Frank Due to Copyright Law Requirements, Diff (Feb. 10, 2016), https://diff.wikimedia.org/2016/02/10/anne-frank-diary-removal/ [https://perma.cc/7FGA-5R8F] (explaining Wikimedia Foundation’s decision to “remove[] the Dutch-language text of The Diary of a Young Girl” in order “to comply with the United States’ Digital Millennium Copyright Act (DMCA),” which they believe provides copyright protection to “the Anne Frank original text . . . until 2042”).Show More but copyright to Otto Frank’s derivative work that was created from Anne’s original diaries will not expire until 2050—seventy years after Otto’s death.65 65.Dwyer, supra note 59.Show More

These disputes demonstrate how difficult it can be to delineate the line between the original underlying work and its added elements in a derivative work. They also show how the assertion of rights in derivative works could, at times, have the unintended practical consequence of limiting access to the original underlying work—even when that work is in the public domain.

The issue becomes most troubling, however, when editors assert copyright in trivial and unoriginal edits to classic books. Most courts should not find mere trivial edits to classic children’s books, such as removing a word or cutting out a few lines from a book, to be enough to create a copyrightable derivative work in the new edition.66 66.Clean Flicks of Colo., LLC v. Soderbergh, 433 F. Supp. 2d 1236, 1242 (D. Colo. 2006) (finding that mere removal of offensive words or scenes from a film fails to constitute a derivative work). But see Judge Sweet’s dissent in Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 709 (2d Cir. 1998) (Sweet, J., dissenting), which appears to support an argument that the “totality” of edits, rather than each individual edit to a work, could result in a copyrightable “compilation work.”Show More For instance, the recent changes to Roald Dahl’s children’s books, which removed words such as “fat” and “ugly,” or swapped out words like “man” with “people” and “you old hag” with “you old crow,”67 67.Cumming et al., supra note 6.Show More do not appear to be original enough to create copyrightable derivative works in their updated editions. Similarly, Scholastic’s changes to R.L. Stine’s Goosebumps books, which included replacing “crazy” with “silly” and a “plump” character with a “cheerful” one,68 68.Raskin, supra note 29.Show More also appear to lack the minimal creativity required to warrant protectability as a derivative work under copyright.

However, even if these trivial additions do not legally create a copyrightable derivative work, editors can still overreach by claiming a copyrighted derivative to dissuade others from copying their edited versions of classic books. For instance, Mark Twain’s Huckleberry Finn entered the public domain almost a century ago. As noted above, in 2011, Alan Gribben and NewSouth Publishing published a revised edition of Huckleberry Finn that merely swapped out certain racial slurs for other less offensive words, most notably replacing “one disturbing racial label” with the word “slave.”69 69.About the Book: Mark Twain’s Adventures of Huckleberry Finn: The NewSouth Edition, NewSouth Books, http://www.newsouthbooks.com/bkpgs/‌detailtitle.php?isbn_solid=160306‌2351 [https://perma.cc/4PAW-QLV9] (last visited Sept. 16, 2023).Show More Such trivial edits to a public domain work should not create a copyrighted derivative work in the new edition. Nevertheless, the copyright notice for their 2011 edition of Huckleberry Finn reads: “Copyright © 2011 by NewSouth Books. Introduction, notes, and texts copyright © 2011 by Alan Gribben. Reproduction of any part without explicit written permission from the editor and publisher is strictly forbidden.”70 70.Copyright Notice, in Mark Twain’s Adventures of Tom Sawyer and Huckleberry Finn: The NewSouth Edition (Alan Gribben ed., 2011). A copyright officer at Nova Southeastern University noted that the Mark Twain Project also asserted copyright to its 2003 edition of Adventures of Huckleberry Finn. Stephen Carlisle, Claiming Copyright in Public Domain Works: It’s Time to Put an End to Publishing Sleight of Hand, NSU Fla. Blog (Aug. 27, 2014), http://copyright.nova.edu/claiming-copyright-public-domain/ [https://perma.cc/ABV4-P6‌NM].Show More Even if the editors have no legal basis to claim a copyrighted derivative work in their 2011 edition, the copyright notice printed in the book is a clear overreach of copyright and could deter third parties from reproducing that edition of the book.

There are special concerns with protecting new editions of classic children’s books that were revised to remove offensive stereotypes. First, at some point, the original offensive versions of those works will be in the public domain free for all to copy, use, and reproduce, but the updated versions will remain off-limits due to their later and longer copyright terms. For instance, the cruel and racially offensive illustrations of Prince Bumpo and his parents, and the story of Bumpo’s dream of becoming a white prince in the original Dolittle, may be reproduced, copied, or even adapted into other works, such as films, because the original book is in the public domain. However, the revised edition that replaced those racist tropes would be off-limits because the later-added elements remain protected by copyright. This could result in an increase, rather than a decrease, of replication of racial stereotypes in classic children’s books.

Second, as noted in the disputes involving Sherlock Holmes and Anne Frank’s diary, it can be confusing for follow-on creators to know which elements of a derivative work were in the original work and free to use, and which elements in the derivative work are still protected by copyright. This analysis can become even more complicated if the widely published version of a work was the derivative work and the original public domain work is less accessible, such as the situation involving Anne Frank’s diary.

Finally, there are distinct concerns with editors who claim copyright in trivial edits to a classic book. In those situations, public domain expression is removed from the public without the public gaining anything in exchange. Not only are those contributions undeserving of copyright, but they can also inadvertently protect the idea of a revised or expurgated work. Take the 2011 changes to Huckleberry Finn as an example, where the editors replaced racial slurs with less offensive words. While the editors may argue that it required some modicum of creativity or originality to come up with appropriate replacement words for racial slurs, there are only so many words that can be used to replace slurs without altering the meaning of a story. Protecting those few words and trivial edits under copyright law would end up protecting the idea of an expurgated Huckleberry Finn and could prevent others from publishing similarly updated versions of public domain books. Even though the editor, Alan Gribben, took a personal and reputational risk by editing this popular classic novel so that it may reach a wider readership, including in schools,71 71.Abby Liebing, The Man Who Changed the N-Word in Huck Finn, Collegian (Oct. 24, 2019), https://hillsdalecollegian.com/2019/10/the-man-who-changed-the-n-word-in-huck-finn/ [https://perma.cc/423B-FFXN].Show More the overclaiming of copyright to derivative works can have unintended consequences as discussed above.

But in the case of classic books, especially children’s books, do the benefits of granting copyright to derivative works outweigh their potential concerns? Would the ability to gain copyright protection of derivative works encourage their creation, and should society bear the cost of potentially extended exclusive rights if it means classic books get updated in socially beneficial ways? Copyright balances the interests of creators and the public by limiting copyright terms in time and scope. When a copyrighted work enters the public domain, that work becomes available for free use and distribution by the public. The public domain is an important source of free expression, allowing follow-on creators to freely use and build upon existing works in the creation of new works. When a copyright owner or follow-on editor attempts to extend their exclusive rights through minimal or trivial edits, they are removing expression from the public domain without contributing anything original to the common good, which disrupts the copyright bargain between creators and the public. This can have the practical effect of depriving others of the opportunity to use and build upon the original work. It can potentially limit future editors that wish to publish their own updated or revised versions of classic books, ultimately limiting the free expression that the public domain is intended to promote.

Conclusion

Roald Dahl’s original Charlie and the Chocolate Factory will enter the public domain on January 1, 2060.72 72.What Could Have Entered the Public Domain on January 1, 2021? Under the Law that Existed Until 1978 . . . Works from 1964!, Ctr. for Study Pub. Domain, https://web.law.duke.‌edu/cspd/publicdomainday/2021/pre-1976/ [https://perma.cc/3T6F-TZ‌GL] (last visited Sept. 16, 2023) (discussing the Copyright Term Extension Act’s delay of the copyright expiration date for books published in 1964 from January 1, 2021, to January 1, 2060).Show More In 37 years, which version of Charlie and the Chocolate Factory will kids want to read? Will they read about the African pygmies that Wonka discovered and shipped to England to work for him? Or just the “small men” or, more recently, the “small people” that work in the chocolate factory? Will Augustus Gloop be “fat” or merely “enormous,” or perhaps a new word will replace the description of his appearance? Classic books, especially children’s books, have been and will continue to be revised for artistic or economic reasons, to increase popularity and appeal, and to remain relevant to modern readers. At its core, the controversy about editing classic books is about the rights, power, and benefits that copyright bestows upon authors and copyright holders in exchange for their creation of valuable works of authorship. Consequently, authors and copyright holders also undertake a responsibility to educate and shape attitudes and minds through their books.

In the meantime, editors who contribute original and expressive revisions to classic children’s works can create derivative works in their new editions, allowing those editors to assert copyright in their new contributions. As discussed above, several editors of classic books have claimed copyright in the new illustrations or new editions of their books. Sometimes those derivative works are created from works that are in the public domain. Other times, derivative works are created from works that are still protected by copyright. Because new expression in derivative works enjoys new copyright terms, many original classic books are in the public domain or could be in the public domain before their updated editions. This practice could encourage editors to make substantial creative contributions to classic books, such as re-illustrating books, re-writing stories, re-creating characters, or re-telling stories, allowing those classic books and stories to reach new audiences. At the same time, the practice can be susceptible to misuse by editors who assert copyright to trivial edits and create the practical effect of extending exclusivity to classic books that are in or should soon be in the public domain. Copyright must strike a balance to ensure follow-on creativity is encouraged and editors are rewarded for updating classic books to suit a modern audience and readership, but also guard against the inadvertent consequence of diminishing the public domain of classic books.

  1.  Salman Rushdie (@SalmanRushdie), Twitter (Feb. 18, 2023, 5:41 PM), https://twitter.‌com/‌SalmanRushdie/status/1627075835525210113 [https://perma.cc/28DV-U‌NWF]. ↑
  2.  Helen Lewis, Roald Dahl Can Never Be Made Nice, Atlantic (Feb. 21, 2023), https://www.theatlantic.com/ideas/archive/2023/02/without-nastiness-roald-dahl-isnt-roald-dahl/673141/ [https://perma.cc/73B5-NEXP]. ↑
  3.  Brendan O’Neill, The Rewriting of Roald Dahl Is an Act of Cultural Vandalism, Spectator (Feb. 19, 2023, 10:57 AM), https://www.spectator.co.uk/article/the-rewriting-of-roald-dahl-is‌-an-act-of-cultural-vandalism/ [https://perma.cc/SAG9-USZ4]. ↑
  4.  Sky News Austl., ‘Vandalism’: Roald Dahl the ‘Latest Victim’ of the Woke’s ‘War’ Against Culture, YouTube (Feb. 20, 2023), https://www.youtube.com/watch?v=K7crI‌cZ‌3qM [https://perma.cc/6VKJ-VMNU]. ↑
  5.  William James, UK PM Sunak Condemns ‘Gobblefunk’ Changes to Roald Dahl’s Books, Reuters (Feb. 20, 2023, 10:25 AM), https://www.reuters.com/lifestyle/uk-pm-sunak-condemn‌s-gobblefunk-changes-roald-dahls-books-2023-02-20/ [https://perma.cc/WNV2-QUGP]. ↑
  6.  Derrick Bryson Taylor, Roald Dahl’s Books Are Rewritten to Cut Potentially Offensive Language, N.Y. Times (Feb. 20, 2023), https://www.nytimes.com/2023/02/20/books/roald-dahl-books-changes.html [https://perma.cc/2X6N-8R4X]. See generally Ed Cumming, Abigail Buchanan, Genevieve Holl-Allen & Benedict Smith, Roald Dahl Rewritten: The Hundreds of Changes Made to Suit a New ‘Sensitive’ Generation, Telegraph (Feb. 24, 2023, 4:20 PM), https://www.telegraph.co.uk/news/2023/02/17/‌roald-dahl-books-rewritten-offensi‌v‌e-matilda-witches-twits/#:~:text=By%20comparing%20the%20latest%20editions,‌are%‌2‌0n‌ow%20the%20Cloud%2DPeople [https://perma.cc/C89B-HDG2] (comparing older and newer excerpts from Roald Dahl’s books). ↑
  7.  Cumming et al., supra note 6. ↑
  8.  Rushdie, supra note 1; Taylor, supra note 6. ↑
  9.  Christian Holub, Wes Anderson Criticizes Editing of Roald Dahl Books to Remove ‘Offensive’ Language: ‘What’s Done Is Done,’ Ent. Wkly. (Sept. 1, 2023, 1:36 PM), https://ew.com/movies/wes-anderson-criticizes-editing-of-roald-dahl-books-i-dont-even-wan‌t-the-artist-to-modify-their-work/ [https://perma.cc/5QHS-83LX]. ↑
  10.  James, supra note 5. ↑
  11.  Jane Dalton, Queen Consort Attacks Censorship of Authors as Roald Dahl Row Rages, Independent (Feb. 23, 2023, 5:49 PM), https://www.independent.co.uk/life-style/royal-family/camilla-queen-roald-dahl-censorship-b2288196.html [https://perma.cc/TXN2-MV‌KA]. ↑
  12.  Armani Syed, Why Rewrites to Roald Dahl’s Books Are Stirring Controversy, Time (Feb. 21, 2023, 1:21 PM), https://time.com/6256980/roald-dahl-censorship-debate/ [https://perma.‌cc/82ST-AF2S]. ↑
  13.  See, e.g., Lucy Knight, Sensitivity Readers: What Publishing’s Most Polarising Role Is Really About, Guardian (Mar. 15, 2023, 4:00 AM), https://www.theguardian.com/books/‌2023/mar/15/sensitivity-readers-what-publishings-most-polarising-role-is-really-about [https://perma.cc/THS6-VA2T]; Althea Legaspi, Agatha Christie Novels Edited to Remove Racist Language, Rolling Stone (Mar. 27, 2023), https://www.rollingstone.com/culture/‌culture-news/agatha-christie-novels-edited-remove-racist-language-1234704199/ [https://perma.cc/54GT-JE2T]. ↑
  14.  The Public Domain and New Derivative Works, Authors All. (Jan. 12, 2021), https://www.authorsalliance.org/2021/01/12/the-public-domain-and-new-derivative-works/. [https://perma.cc/MNF9-ZAX3]. ↑
  15.  Livia Gershon, Roald Dahl’s Anti-Black Racism, JSTOR Daily (Dec. 10, 2020), https://daily.jstor.org/roald-dahls-anti-black-racism/ [https://perma.cc/AU7X-87PL]. ↑
  16.  Taylor Weik, Why Dr. Seuss Got Away with Anti-Asian Racism for So Long, NBC News (Mar. 12, 2021, 2:46 PM), https://www.nbcnews.com/news/asian-america/dr-seuss-got-away-anti-asian-racism-long-rcna381 [https://perma.cc/6KQL-8ZFV]; Katie Ishizuka & Ramón Stephens, The Cat Is Out of the Bag: Orientalism, Anti-Blackness, and White Supremacy in Dr. Seuss’s Children’s Books, 1 Rsch. on Diversity Youth Literature, Feb. 2019, at 1, 15, https://sophia.stkate.edu/cgi/viewcontent.cgi?article=1050&context=rdyl [https://perma.cc/6KQL-8ZFV]. ↑
  17.  Laura Willard, 8 Changes That Were Made to a Classic Richard Scarry Book to Keep Up with the Times. Progress!, Upworthy (Feb. 17, 2023), https://www.upworthy.com/8-changes-that-were-made-to-a-classic-richard-scarry-book-to-keep-up-with-the-times-progress [https://perma.cc/C82F-KKC7]. ↑
  18.  Christopher Lofting, Afterword to Hugh Lofting, The Story of Doctor Dolittle 152–54 (1988). ↑
  19.  See Selma G. Lanes, Childrens’ Books; Doctor Dolittle, Innocent Again, N.Y. Times, Aug. 28, 1988, at 20, https://www.nytimes.com/1988/08/28/books/childrens-books-doctor-dolittle-innocent-again.html [https://perma.cc/S6QC-4XPV] (noting that “[t]he centenary edition’s new excisions and revisions are far more extensive” than previous edits to the books); Dewey W. Chambers, How Now, Dr. Dolittle?, 45 Elementary Eng., Apr. 1968, at 437, 438. ↑
  20.  Lofting, Afterword to The Story of Doctor Dolittle, supra note 18, at 153. ↑
  21.  Id. ↑
  22.  Marjorie Ingall, Nancy Drew and the Case of the Politically Incorrect Children’s Books
    ,

    Tablet Mag. (Dec. 17, 2013), https://www.tabletmag.com/sections/community/articles/nancy-drew [https://perma.cc/5U7G-SS3C]; Kelly Robinson, Dr Seuss ‘Cancelled’? There’s Nothing New About Cutting Racism from Children’s Books, Guardian (Mar. 9, 2021, 12:15 PM), https://www.theguardian.com/books/2021/mar/09/dr-seuss-cancelled-theres-nothing-new-about-cutting-racism-from-childrens-books [https://perma.cc/QMX8-VVQC]. ↑

  23.  Brandon Tensley, The Knotty Nostalgia of the Hardy Boys Series, Atlantic (Jan. 27, 2019), https://www.theatlantic.com/entertainment/archive/2019/01/reading-hardy-boys-nosta‌lgia-disappointment-racism/581071/ [https://perma.cc/H9Q5-ZQC8]. ↑
  24.  See Matthew Fellion & Katherine Inglis, Censored: A Literary History of Subversion and Control 123 (2017); Brandon Murakami & Brianna Anderson, Mgambo, Sam, and the Tigers: Restorying Little Black Sambo Adaptations of the 1990s, Childs. Literature Educ., Feb. 18, 2022, at 1, 2, https://rdcu.be/cZeyP [https://perma.cc/6QRW-CSSB]. ↑
  25.  Fellion & Inglis, supra note 24, at 123. ↑
  26.  Murakami & Anderson, supra note 24, at 3. ↑
  27.  Id. at 11. ↑
  28.  Taylor, supra note 6 (explaining that Puffin Books made changes to Roald Dahl’s books following collaboration with an organization that “champions diversity and accessibility in children’s literature”). ↑
  29.  Raina Raskin, ‘Goosebumps’ Author Accuses Publisher of Unsanctioned Edits to His Beloved Children’s Series, N.Y. Sun (Mar. 8, 2023, 3:20 PM), https://www.nysun.com/‌article/goosebumps-author-accuses-publisher-of-unsanctioned-edits-to-his-beloved-childrens‌-series [https://perma.cc/GJ2W-GSRY]. ↑
  30.  Rachel Hall, Agatha Christie Novels Reworked to Remove Potentially Offensive Language, Guardian (Mar. 26, 2023, 9:36 AM), https://www.theguardian.com/‌books/‌2023/mar/26/agatha-christie-novels-reworked-to-remove-potentially-offensive-language [https://perma.cc/V4HQ-UTY5]. ↑
  31.  O’Neill, supra note 3. ↑
  32.  Annabel Nugent, Philip Pullman Suggests Roald Dahl Books Should Go ‘Out of Print’ Amid Edits Controversy, Independent (Feb. 20, 2023, 10:22 AM), https://www.independ‌ent.co.uk/arts-entertainment/books/news/roald-dahl-philip-pullman-edits-b2285643.html [https://perma.cc/W4R6-3YLL]. ↑
  33.  Statement from Dr. Seuss Enterprises, Seusville (Mar. 2, 2021), https://www.‌seussville.com/statement-from-dr-seuss-enterprises/ [https://perma.cc/7WTX-NMC9]. ↑
  34.  Ishizuka & Stephens, supra note 16, at 6; Dorothy L. Hurley, Seeing White: Children of Color and the Disney Fairy Tale Princess,
    74

    J. Negro Educ. 221, 222–23 (2005). ↑

  35.  The Public Domain and New Derivative Works, supra note 14. ↑
  36.  See Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513, 520–21 (7th Cir. 2009). ↑
  37.  Id. at 521 (internal quotation marks omitted). ↑
  38.  Circular 14: Copyright in Derivative Works and Compilations, U.S. Copyright Off., https://www.copyright.gov/circs/circ14.pdf [https://perma.cc/85AQ-NF4V] (reviewed July 2020). ↑
  39.  Supra Part I. ↑
  40.  Id. ↑
  41.  Klinger v. Conan Doyle Est., Ltd., 755 F.3d 496, 500–02 (7th Cir. 2014). ↑
  42.  Linton Weeks, Taking a Tiger By the Tale: Little Black Sambo Loses Racist Elements in Two Retellings, Wash. Post (Sept. 17, 1996), https://www.washingtonpost.com/‌archive/‌lifestyle/1996/09/17/taking-a-tiger-by-the-tale-little-black-sambo-loses-racist-elements-in-tw‌o-retellings/3793375b-797e-422e-80cb-dbbc1e9cae72/ [https://perma.cc/NE58-YT23]; Helen Bannerman, The Story of Little Babaji (1st ed. 1996). ↑
  43.  U.S. Copyright Off. Registration No. TX0004375179 (Sept. 24, 1996). ↑
  44.  Hugh Lofting, The Story of Doctor Dolittle (1988). ↑
  45.  What Could Have Entered the Public Domain on January 1, 2020? Under the Law that Existed Until 1978 . . . Works from 1963, Ctr. for Study Pub. Domain, https://web.law.‌duke.edu/cspd/publicdomainday/2020/pre-1976/#fn1text [https://perma.cc/N7Z3-W35Q] (last visited Sept. 15, 2023) (explaining that the “Copyright Term Extension Act expanded the term for works published in 1963 to 95 years from the date of publication, so long as the works were published with a copyright notice and the term renewed,” while works published after January 1, 1978, enjoy copyright protection for “70 years after the date of the author’s death”); Eric Pace, Richard Scarry, 74, Children’s Book Author and Illustrator, Dies, N.Y. Times (May 3, 1994), https://www.nytimes.com/‌1994/‌05/‌03/‌obituar‌ies/richard-scarry-74-children-s-book‌-author-and-illustrator-dies.html [https://per‌ma.cc/9H‌VZ-9EME]. Because Richard Scarry died in 1994, the new illustrations he added beginning in 1980 will expire 70 years after his death, on January 1, 2065. ↑
  46.  Richard Scarry, Richard Scarry’s Best Word Book Ever (1980). ↑
  47.  See Carolyn Keene, The Secret of the Old Clock (1987) (displaying 1930 as the original year of publication); see also Lloyd J. Jassin, New Rules for Using Public Domain Materials, CopyLaw.com, https://www.copylaw.com/new_articles/PublicDomain.html [https://perma.‌cc/‌MY32-XJJN] (last visited Oct. 10, 2023) (explaining that, under the Sony Bono Copyright Term Extension Act (“CTEA”), “a work published in 1930, if properly renewed, will expire at the end of 2025”). ↑
  48.  See Ingall, supra note 22 (discussing the 1959 revisions); see also What Could Have Entered the Public Domain on January 1, 2016? Under the Law that Existed Until 1978 . . . Works from 1959, Ctr. for Study Pub. Domain, https://web.law.duke.edu/‌cspd/publicdomainday/2016/pre-1976/ [https://perma.cc/VN4P-RC‌SP] (last visited Oct. 10, 2023) (noting that “under current copyright law, we’ll have to wait until 2055” for “works published in 1959”). ↑
  49.  Klinger v. Conan Doyle Est., Ltd, 755 F.3d 496, 501–02 (7th Cir. 2014) (internal citation omitted); see also 17 U.S.C. § 103(b) (codifying that “[t]he copyright in a compilation or derivative work extends only to the material contributed by the author of such work . . . and does not imply any exclusive right in the pre-existing material”). ↑
  50.  17 U.S.C. § 103(b). ↑
  51.  Mike Masnick, Sherlock Holmes and the Case of the Never Ending Copyright Dispute, TechDirt (May 26, 2015, 8:12 AM), https://www.techdirt.com/2015/05/26/sherlock-holmes-case-never-ending-copyright-dispute/ [https://perma.cc/PM6T-JQQR]. See generally Elizabeth L. Rosenblatt, The Adventure of the Shrinking Public Domain,
    86

    Colo. L. Rev.

    561 (2015) (explaining how copyright holders have tried to slow the entry of literary characters into the public domain and suggesting an examination of current copyright doctrine to protect the public domain from encroachment). ↑

  52.  Aaron Moss, “Enola Holmes” and the Case of the Overreaching Copyright Owner, Copyright Lately (Sept. 1, 2020) (internal citation omitted), https://copyrightlately.com/enola-holmes-copyright-infringement-case/ [https://perma.cc/PW3E-H2NV]. ↑
  53.  Klinger, 755 F.3d at 502–03. ↑
  54.  Id. at 502. ↑
  55.  Moss, supra note 52; Complaint for Injunction and Damages at 2–3, Conan Doyle Est. Ltd. v. Springer, No. 20-cv-00610 (D.N.M. June 23, 2020), 2020 WL 3451968, at *2–3. ↑
  56.  Moss, supra note 52. ↑
  57.  Id. (quoting Complaint for Injunction and Damages at 7, Conan Doyle Est. Ltd., No. 20-cv-00610 (D.N.M. June 23, 2020)). ↑
  58.  Id. ↑
  59.  Colin Dwyer, ‘Mein Kampf’ Enters Public Domain; Arguably, Anne Frank’s Diary May Too, NPR (Dec. 31, 2015, 7:48 PM), https://www.npr.org/sections/thetwo-way/2015/12/31/‌461606275/mein-kampf-enters-public-domain-arguably-anne-franks-diary-may-too [https://perma.cc/G4F4-ULBR]. ↑
  60.  Alison Flood, Anne Frank’s Diary Caught in Fierce European Copyright Battle, Guardian (Jan. 18, 2016, 3:00 AM), https://www.theguardian.com/books/2016/jan/18/anne-franks-diar‌y-caught-in-fierce-european-copyright-battle [https://perma.cc/M6JL-Q9JZ]. ↑
  61.  Id. ↑
  62.  Id. ↑
  63.  Dwyer, supra note 59; see also Cease and Desist Letter from Anne Frank Fond to Oliver Ertzscheid (Dec. 28, 2015), reproduced at https://affordance.typepad.com//‌mon_weblog/‌2015/12/la-lettre-de-lavocat-du-fonds-anne-frank.html [https://perma.cc/JR9G-VDLW] (last visited Sept. 16, 2023) (alleging Otto Frank’s copyright claim to The Diary). ↑
  64.  There is a separate dispute over whether The Diary entered the public domain seventy years after Anne Frank’s death. See, e.g., Natalia Mileszyk, Anne Frank and the Term of Copyright Protection: Why It’s Time to Move from Harmonisation to Unification, Communia (Apr. 25, 2016), https://communia-association.org/2016/04/25/anne-frank-term-copyright-protection-time-move-harmonisation-unification/ [https://perma.cc/L75Z-3NEZ]; see also Jacob Rogers, Wikimedia Foundation Removes The Diary of Anne Frank Due to Copyright Law Requirements, Diff (Feb. 10, 2016), https://diff.wikimedia.org/2016/02/10/anne-frank-diary-removal/ [https://perma.cc/7FGA-5R8F] (explaining Wikimedia Foundation’s decision to “remove[] the Dutch-language text of The Diary of a Young Girl” in order “to comply with the United States’ Digital Millennium Copyright Act (DMCA),” which they believe provides copyright protection to “the Anne Frank original text . . . until 2042”). ↑
  65.  Dwyer, supra note 59. ↑
  66.  Clean Flicks of Colo., LLC v. Soderbergh, 433 F. Supp. 2d 1236, 1242 (D. Colo. 2006) (finding that mere removal of offensive words or scenes from a film fails to constitute a derivative work). But see Judge Sweet’s dissent in Matthew Bender & Co. v. West Publishing Co., 158 F.3d 693, 709 (2d Cir. 1998) (Sweet, J., dissenting), which appears to support an argument that the “totality” of edits, rather than each individual edit to a work, could result in a copyrightable “compilation work.” ↑
  67.  Cumming et al., supra note 6. ↑
  68.  Raskin, supra note 29. ↑
  69.  About the Book: Mark Twain’s Adventures of Huckleberry Finn: The NewSouth Edition, NewSouth Books, http://www.newsouthbooks.com/bkpgs/‌detailtitle.php?isbn_solid=160306‌2351 [https://perma.cc/4PAW-QLV9] (last visited Sept. 16, 2023). ↑
  70.  Copyright Notice, in Mark Twain’s Adventures of Tom Sawyer and Huckleberry Finn: The NewSouth Edition (Alan Gribben ed., 2011). A copyright officer at Nova Southeastern University noted that the Mark Twain Project also asserted copyright to its 2003 edition of Adventures of Huckleberry Finn. Stephen Carlisle, Claiming Copyright in Public Domain Works: It’s Time to Put an End to Publishing Sleight of Hand, NSU Fla. Blog (Aug. 27, 2014), http://copyright.nova.edu/claiming-copyright-public-domain/ [https://perma.cc/ABV4-P6‌NM]. ↑
  71.  Abby Liebing, The Man Who Changed the N-Word in Huck Finn, Collegian (Oct. 24, 2019), https://hillsdalecollegian.com/2019/10/the-man-who-changed-the-n-word-in-huck-finn/ [https://perma.cc/423B-FFXN]. ↑

  72.  What Could Have Entered the Public Domain on January 1, 2021? Under the Law that Existed Until 1978 . . . Works from 1964!, Ctr. for Study Pub. Domain, https://web.law.duke.‌edu/cspd/publicdomainday/2021/pre-1976/ [https://perma.cc/3T6F-TZ‌GL] (last visited Sept. 16, 2023) (discussing the Copyright Term Extension Act’s delay of the copyright expiration date for books published in 1964 from January 1, 2021, to January 1, 2060). ↑

The Zero-Sum Argument, Legacy Preferences, and the Erosion of the Distinction Between Disparate Treatment and Disparate Impact

In a complaint recently filed with the Department of Education,1 1.Complaint Under Title VI of the Civil Rights Act of 1964 at 3, Chica Project, Afr. Cmty. Econ. Dev. of New Eng. & Greater Bos. Latino Network v. President & Fellows of Harvard Coll., No. 01-23-2231 (Off. of C.R., U.S. Dep’t of Educ. July 3, 2023) [hereinafter Complaint].Show More a group of civil rights organizations allege that Harvard University’s legacy preference unlawfully discriminates against minority applicants in violation of Title VI of the Civil Rights Act of 1964.2 2.The organizations include Chica Project, African Community Economic Development of New England, and Greater Boston Latino Network.Show More In response, the Department of Education has opened an inquiry.3 3.Letter from Ramzi Ajami, Regional Director, Off. of C.R., U.S. Dep’t of Educ., to Michael A. Kippins, Laws. for C.R. (July 24, 2023), http://lawyersforcivilrights.org/wp-content/‌uploa‌ds/2023/07/Harvard-Complaint-Case-01-23-2231.pdf [https://perma.cc/7J4V-ENKF].Show More Interestingly, the Complainants deploy the argument made by Chief Justice Roberts in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA) that “[c]ollege admissions are zero-sum,” and so, a “benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.”4 4.Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2152 (2023).Show More Using this argument, the complaint alleges that a legacy preference cannot simply be viewed as a benefit to the relatives of alumni; it must simultaneously be viewed as a detriment to applicants who have no relation to alumni, a group we might call “non-legacies.”5 5.Complaint, supra note 1, at 3.Show More Because minority applicants are disproportionately represented among the non-legacy group, the legacy preference has a disparate impact on minority applicants.6 6.Peter Arcidiacono, Josh Kinsler & Tyler Ransom, Legacy and Athlete Preferences at Harvard, 40 J. Lab. Econ. 133, 135 (2022) (modeling the effect of removing admissions preferences at Harvard for legacies and athletes and concluding that the racial composition of the class would be significantly different (and less white) without them).Show More The complaint goes on to argue that the preference for legacies has no educational benefit, making this disparate impact unlawful.7 7.Complaint, supra note 1, at 24 (emphasizing that “[i]n light of the most recent pronouncement from the Supreme Court, it is difficult to see how fostering ‘a vital sense of engagement and support’—one of Harvard’s stated goals for Donor and Legacy Preferences—could qualify as an educational necessity sufficient to justify disproportionate impact under Title VI”).Show More

I am not sure that Complainants need the zero-sum argument to state a claim for disparate impact, but it certainly strengthens their argument, both logically and rhetorically. What I want to explore is whether Complainants could have done even more with the zero-sum argument. In particular, I am interested in exploring whether the zero-sum argument implicitly erodes the firm doctrinal distinction between disparate treatment and disparate impact, or, at the least, exposes an important conceptual linkage between the two forms of discrimination.

In SFFA, Chief Justice Roberts asserts that under current doctrine race can never be a “negative.”8 8.Students for Fair Admissions, 143 S. Ct. at 2175.Show More In his view, “our cases have stressed that an individual’s race may never be used against him in the admissions process.”9 9.Id. at 2168.Show More None of the other Justices or litigants take issue with that assertion. Rather, Harvard College and the University of North Carolina (“UNC”) claim that their admissions policies do not make race a negative; it is a plus for some applicants in some contexts but never a minus.10 10.Brief in Opposition at 22, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (No. 20-1199); Brief in Opposition by University Respondents at 7, Students for Fair Admissions, Inc. v. Univ. of N.C., 143 S. Ct. 2141 (2023) (No. 21-707).Show More Chief Justice Roberts finds this argument “hard to take seriously” because university admissions are “zero-sum.”11 11.Students for Fair Admissions, 143 S. Ct. at 2169.Show More In his view, a plus in the admissions process given to Black and Latinx students, for example, is a minus to white students and others not eligible for this benefit. To put the claim in a formal fashion, we might restate it as follows: in contexts like admissions, where the number of positive outcomes is limited, considering Trait X as a plus for Applicant A necessarily requires the decision-maker to treat the lack of Trait X as a minus for Applicant B. Let’s call this the Zero-Sum Claim.

In what follows, I examine the Zero-Sum Claim in the context of the recently challenged legacy preference and explore the implications of its underlying logic for the doctrinal distinction in U.S. anti-discrimination law between disparate treatment and disparate impact.

The first part of what the Zero-Sum Claim asserts is that if Harvard affords a preference to members of some minority groups, it necessarily advantages those applicants at the expense of applicants who are not members of these groups. The validity of this point was disputed by the Justices who dissented in SFFA.12 12.See id. at 2249 (Sotomayor, J., dissenting).Show More In their view, while only some applicants could garner a plus for minority race, all applicants were able to garner plusses for the various forms of diversity that each applicant was able to bring, and so non-minority students were not disadvantaged.13 13.Id.Show More In addition, all students benefit from the educational benefits of a diverse student body, so no one is disadvantaged.14 14.Id.Show More Whether this part of the Zero-Sum Claim holds up, I leave for another day. This Essay proceeds on the assumption that Chief Justice Roberts has the better argument on this point, and that if a college affords a preference to people with Trait X, it advantages people with X at the expense of people without X.

One might think that this is all there is to the Zero-Sum Claim and that the important argument is the one I’ve just put to the side. But, while it is easy to miss, the Zero-Sum Claim actually goes a step further. Chief Justice Roberts not only claims that the groups not benefited are at a competitive disadvantage, he also asserts that the race of those applicants is treated as a negative in the admissions processes at Harvard and UNC. In other words, this competitive disadvantage is the equivalent of giving these non-minority candidates a minus.15 15.Id. at 2169 (majority opinion).Show More

How could this be so? After all, no one asserts that Harvard actually subtracts points from the point tally of these applicants. Rather, people without X are at a disadvantage, and are burdened by the preference, because they are ineligible for points that others can accumulate. If admissions spots are scarce and competition for them is fierce (as is the case with respect to admissions at elite institutions like Harvard and UNC), then if two students are similar in other respects but one is an underrepresented minority and the other is not, the one who is an underrepresented minority will have more points. If the number of points determine who is admitted (and let’s assume that is the case), then between two otherwise similar students, non-minority status functions as a negative for that candidate.

This argument works by drawing attention to the effect of the racial preference. The preference does not itself constitute an aversion for non-minority candidates. Rather, the preferences are effectively, functionally, a detriment to applicants who are non-minority because of the competitive nature of college admissions. But here’s the rub. Current doctrine draws a firm distinction between policies that explicitly treat people differently on the basis of some trait (disparate treatment) and those that have that effect (disparate impact). A racial preference provides a plus to candidates of particular races. It does not formally or explicitly provide a minus to non-minority applicants. Rather, it has that effect. Similarly, Harvard’s legacy preference provides a benefit to applicants who are legacies. It did not formally, explicitly provide a minus to applicants who are not legacies. Rather, it has that effect.

The Chief Justice’s Zero-Sum Claim rests, albeit inadvertently, on the assumption that the effects of a policy matter to whether the policy treats the race of an applicant as a negative. In so doing, the argument erodes the distinction between disparate treatment and disparate impact. This feature of the Zero-Sum Claim is important. While the logic of the Claim does not dissolve the distinction between disparate treatment and disparate impact, the fact that the effect of a benefit transforms that benefit into a “negative” takes a meaningful step toward softening the distinction between these two forms of discrimination that are embedded in current doctrine.

A few caveats are in order, however, that lessen the force of the argument I have just offered. First, the Zero-Sum Claim applies only to contexts that could be described as zero-sum, that is, to situations of scarcity in which people are directly competing against each other for limited resources. Disparate treatment can occur in situations that do not have this structure and so the argument would not be relevant in these other contexts.

Second, the Chief Justice does not need the Zero-Sum Claim to find Harvard’s admissions policy involves disparate treatment on the basis of race. The fact that members of some races get a plus is sufficient for the policy to constitute disparate treatment on the basis of race. Nonetheless, the opinion contains the further assertion that race can never be used as a negative.16 16.Id. at 2175.Show More It is unclear what work this addition does, as the admissions policies have other constitutional flaws in the Court’s view, including that they impermissibly stereotype,17 17.Id. at 2169–70.Show More lack a clear end point,18 18.Id. at 2170–72.Show More and that the interests that allegedly justify the use of race are defined too amorphously to satisfy strict scrutiny.19 19.Id. at 2166.Show More Given all these other problems with the admissions policies at issue, the argument that rests on the Zero-Sum Claim is potentially superfluous.20 20.One might wonder why the Court needs to stress that race may never be used as a negative. Given that the opinion does not explicitly overrule Grutter v. Bollinger, 539 U.S. 306 (2003), it does not say that diversity is not a compelling interest, nor that narrow tailoring can never be achieved. Instead, the Court finds that the use of race in the admissions processes of Harvard and UNC do not satisfy Grutter. Part of the reason they fail is that race is used as a negative. This argument thus leaves open whether the use of race as a positive is still permissible in contexts that are not zero-sum and thus in which a positive for some is not automatically transformed into a negative for others. See Students for Fair Admissions, 143 S. Ct. at 2165–75.Show More

Third, the Zero-Sum Claim asserts that a benefit to some races is effectively a negative for members of other races. This form differs from the standard disparate impact claim in which a differentiation on facially neutral grounds (test scores, a legacy preference, etc.) is alleged to have a disparate impact on a group defined by a protected trait (race, for example). To say that a benefit for people with X is a detriment for people without X is not the same as saying that a benefit for people with X is a detriment for people with Y. Because disparate impact claims have this latter form, one more step is needed to fully dismantle the distinction between disparate treatment and disparate impact, which is likely why the Complainants challenging Harvard’s legacy preference made only a disparate impact claim and not, at the same time, a disparate treatment claim.

So, the modest first claim I am making is this: the fact that a benefit to some people becomes a negative to others because of its effect in a zero-sum context lessens the clarity of the distinction between disparate treatment and disparate impact. Of this modest claim, I am quite confident. At the same time, I wonder whether it is possible to advance a stronger argument: that Complainants challenging Harvard’s legacy preference might have alleged that this policy makes race — specifically, the races of non-white students — a negative.

Let’s try out that argument.

  1. The legacy preference provides a benefit for legacies.
  2. In a zero-sum context, a benefit to people with X becomes a detriment to people without X if the benefit has that effect. [The Zero-Sum Claim]
  3. Thus, a benefit to legacies is a detriment to non-legacies in the Harvard application process. [Modest Conclusion]
  4. Legacies are predominantly white.
  5. Thus, the legacy preference not only has the effect of disadvantaging applicants who are non-legacies, it also functionally disadvantages non-white applicants.
  6. Therefore, the legacy preference constitutes not only a preference for legacies but also, at the same time, a negative for both non-legacies and non-whites. [Strong Conclusion]

Step six dismantles the distinction between disparate treatment and disparate impact.

Chief Justice Roberts might respond to this argument by disputing that steps 1–5 lead to the conclusion in step 6. To do so, he might point out that a legacy preference will functionally disadvantage all non-legacies, but it does not disadvantage all non-white applicants (as some non-white applicants are also legacies). And so, the legacy preference does count as a minus for non-legacies but not as a minus for non-white applicants.

Is this rebuttal effective?

It certainly describes a feature that distinguishes the two cases. But merely pointing out a difference does not tell us that the difference matters. One could hardly explain to two plaintiffs with similar cases that one won and the other lost because the former was wearing a blue shirt and the latter was not. So, the question we must consider is whether the difference this rebuttal refers to is a relevant difference. Does it matter that all non-legacies will be burdened by the legacy preference and only some, most, or nearly all non-white applicants will be burdened by it?

The answer to this question depends on how strongly to take the implicit premise of the Zero-Sum Claim. When Chief Justice Roberts explains why the race-based preference for minority applicants is a negative for those who are not members of the racial groups preferred, he explains his reasoning as follows: “How else but ‘negative’ can race be described if, in its absence, members of some racial groups would be admitted in greater numbers than they otherwise would have been?”21 21.Id. at 2169.Show More According to this rationale, the progression to step 6 is easily defensible. The legacy preference functionally disadvantages non-legacies because, in its absence, non-legacies would be admitted in greater numbers than they otherwise would have been. Check. Now, let’s try it for racial minorities. The legacy preference functionally disadvantages non-white applicants because in its absence, members of this group (non-whites) would be admitted in greater numbers.22 22.Arcidiacono et al., supra note 6, at 153 (modeling the effect of abandoning legacy, athletic, and other preferences in the admissions process and determining that without legacy preferences, the percentage of underrepresented minorities admitted would increase and the percentage of white students admitted would decrease).Show More Again, check.23 23.See Students for Fair Admissions, 143 S. Ct. at 2169. This is precisely the argument Chief Justice Roberts offers in SFFA concluding that race is a negative in the admissions processes at issue, because “respondents also maintain that the demographics of their admitted classes would meaningfully change if race-based admissions were abandoned.” Id.Show More

If the reason that the racial preference in SFFA makes race a negative for some applicants is that in “its absence, members of some racial groups would be admitted in greater numbers than they otherwise would have been,” then the legacy preference at Harvard also makes race a negative for some applicants because in the absence of the legacy preference, members of some racial groups would have been admitted in greater numbers than they otherwise would have been.24 24.Id.Show More

At this point, I expect that some readers are still skeptical. Perhaps I have not stated the objection as forcefully as I might. Consider this version of the objection, one that insists that I am stretching the Zero-Sum Claim beyond where it will go. The benefit to legacies is necessarily a detriment to non-legacies. However, the benefit to legacies is only contingently a detriment to non-white applicants. This difference between the two cases might be thought especially important because if the connection is a necessary one, then perhaps I am not entitled to say that it is the effect of the preference that makes the benefit equivalent to a negative. If this objection is a good one, it challenges my assertion that the Zero-Sum Claim erodes the disparate treatment / disparate impact distinction.

This challenge is also unsuccessful, however. It is true that the relationship between legacies and non-legacies is reciprocal (everyone is either a legacy or a non-legacy) and so a benefit to a legacy is simply a lack of benefit to a non-legacy. But to make the jump from an absence of benefit to a negative, which is after all what the Chief Justice asserts in the Zero-Sum Claim, the Court must look outside of the necessary truth that “X” and “not X” stand in a necessary relationship to each other. He must refer to the fact that admissions at Harvard and UNC are competitive and admissions spots are scarce. It is these contingent facts about university admissions at Harvard and UNC that makes the racial preference a negative for those not preferred.

As a result, the fact that a legacy preference is also a “negative” to non-legacies is not actually necessary; it is a contingent fact that depends on the competitive environment at the schools. But once this contingency is conceded, the implications of the argument widen. In the competitive zero-sum environment of admissions, a legacy preference also makes race a negative for students of color seeking acceptance to competitive schools like Harvard.

One might wonder about the implications of the argument just offered. If the Zero-Sum Claim erodes the distinction between disparate treatment and disparate impact, then courts will need to determine how both should be treated. They could decide that disparate impact claims will be treated like disparate treatment claims (leveling up), or they could instead decide that disparate treatment claims will be treated like disparate impact claims (leveling down). Either is possible. The point of this piece is conceptual, rather than normative, and so it does not provide reasons to favor one approach over the other. That said, I welcome the implicit recognition that the Zero-Sum Claim provides for a view that disparate treatment and disparate impact are often different in degree rather than in kind and normatively less different than constitutional doctrine currently acknowledges.

  1.  Complaint Under Title VI of the Civil Rights Act of 1964 at 3, Chica Project, Afr. Cmty. Econ. Dev. of New Eng. & Greater Bos. Latino Network v. President & Fellows of Harvard Coll., No. 01-23-2231 (Off. of C.R., U.S. Dep’t of Educ. July 3, 2023) [hereinafter Complaint]. ↑
  2.  The organizations include Chica Project, African Community Economic Development of New England, and Greater Boston Latino Network. ↑
  3.  Letter from Ramzi Ajami, Regional Director, Off. of C.R., U.S. Dep’t of Educ., to Michael A. Kippins, Laws. for C.R. (July 24, 2023), http://lawyersforcivilrights.org/wp-content/‌uploa‌ds/2023/07/Harvard-Complaint-Case-01-23-2231.pdf [https://perma.cc/7J4V-ENKF]. ↑
  4.  Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2152 (2023). ↑
  5.  Complaint, supra note 1, at 3. ↑
  6.  Peter Arcidiacono, Josh Kinsler & Tyler Ransom, Legacy and Athlete Preferences at Harvard, 40 J. Lab. Econ. 133, 135 (2022) (modeling the effect of removing admissions preferences at Harvard for legacies and athletes and concluding that the racial composition of the class would be significantly different (and less white) without them). ↑
  7.  Complaint, supra note 1, at 24 (emphasizing that “[i]n light of the most recent pronouncement from the Supreme Court, it is difficult to see how fostering ‘a vital sense of engagement and support’—one of Harvard’s stated goals for Donor and Legacy Preferences—could qualify as an educational necessity sufficient to justify disproportionate impact under Title VI”). ↑
  8.  Students for Fair Admissions, 143 S. Ct. at 2175. ↑
  9.  Id. at 2168. ↑
  10.  Brief in Opposition at 22, Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141 (2023) (No. 20-1199); Brief in Opposition by University Respondents at 7, Students for Fair Admissions, Inc. v. Univ. of N.C., 143 S. Ct. 2141 (2023) (No. 21-707). ↑
  11.  Students for Fair Admissions, 143 S. Ct. at 2169. ↑
  12.  See id. at 2249 (Sotomayor, J., dissenting). ↑
  13.  Id. ↑
  14.  Id. ↑
  15.  Id. at 2169 (majority opinion). ↑
  16.  Id. at 2175. ↑
  17.  Id. at 2169–70. ↑
  18.  Id. at 2170–72. ↑
  19.  Id. at 2166. ↑
  20.  One might wonder why the Court needs to stress that race may never be used as a negative. Given that the opinion does not explicitly overrule Grutter v. Bollinger, 539 U.S. 306 (2003), it does not say that diversity is not a compelling interest, nor that narrow tailoring can never be achieved. Instead, the Court finds that the use of race in the admissions processes of Harvard and UNC do not satisfy Grutter. Part of the reason they fail is that race is used as a negative. This argument thus leaves open whether the use of race as a positive is still permissible in contexts that are not zero-sum and thus in which a positive for some is not automatically transformed into a negative for others. See Students for Fair Admissions, 143 S. Ct. at 2165–75. ↑
  21.  Id. at 2169. ↑
  22.  Arcidiacono et al., supra note 6, at 153 (modeling the effect of abandoning legacy, athletic, and other preferences in the admissions process and determining that without legacy preferences, the percentage of underrepresented minorities admitted would increase and the percentage of white students admitted would decrease). ↑
  23.  See Students for Fair Admissions, 143 S. Ct. at 2169. This is precisely the argument Chief Justice Roberts offers in SFFA concluding that race is a negative in the admissions processes at issue, because “respondents also maintain that the demographics of their admitted classes would meaningfully change if race-based admissions were abandoned.” Id. ↑

  24.  Id. ↑

Sex Discrimination Formalism

Critics of antidiscrimination law have long lamented that the Supreme Court is devoted to a shallow, formal version of equality that fails to account for substantive inequities and stands in the way of affirmative efforts to remediate systemic injustice. But these criticisms are primarily focused on the Supreme Court’s interpretations of race discrimination law. The Court’s most recent foray into statutory sex discrimination law, Bostock v. Clayton County, employed formalistic reasoning to move the law in an expansive direction, interpreting Title VII’s sex discrimination provision to prohibit discrimination against lesbian, gay, and transgender employees. Examining post-Bostock developments, this Article asks whether formal equality might have more potential to advance civil rights than previously thought. It argues that “formal equality” is not a single legal inquiry; rather, in practice, it takes the form of at least three distinct tests. These tests lead to different results in different sex discrimination controversies, such as whether it is discrimination to treat someone adversely for being bisexual or nonbinary; to single out pregnancy, menstruation, breasts, or other aspects of reproductive biology for disparate treatment; to enforce sex-specific dress codes; to exclude transgender people from restrooms consistent with their gender identities; to ban gender-affirming health care; or to restrict who can change the sex designations on their identity documents. Although no formal test neatly maps onto prevailing normative theories and sociological insights about what discrimination is, in recent cases, courts have used formal tests to achieve results consistent with those theories. This account suggests that, rather than insisting that courts adopt substantive tests, civil rights scholars might reconsider the virtues of formalism.

“Equality, in the abstract, has no limits; it is forever demanding to be carried to its ultimate logical conclusions.”1 1.Kenneth L. Karst, The Supreme Court, 1976 Term—Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 39 (1977).Show More

Introduction

The law of race discrimination is mired in what critics call “formal equality”: an ahistorical, decontextualized vision of equality law that ignores the social, economic, and political realities of systemic racial inequality and treats affirmative action as the moral equivalent of 1950s-style segregation.2 2.See, e.g., Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1784 (2012) (“[D]iscriminatory intent doctrine excludes evidence of continued discrimination against non-Whites rooted in history, contemporary practices, and social science . . . . Meanwhile, . . . colorblindness similarly closes courthouse doors to evidence showing that state actors sometimes use race to break down inequality and to foster integration.”); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1113 (1997) (criticizing “[c]ontemporary equal protection law” because it “is premised on a formal and historically static conception of ‘discrimination’” focused on “classification” or “discriminatory purpose—a concept the Court has defined as tantamount to malice”).Show More As a result, antidiscrimination scholars are almost uniformly scornful of formal equality, proposing that it be replaced with more substantive definitions of discrimination attuned to context;3 3.See, e.g., Haney-López, supranote 2, at1876 (proposing a “contextual intent” test).Show More social, historical, and cultural meanings;4 4.See, e.g., Issa Kohler-Hausmann, Eddie Murphy and the Dangers of Counterfactual Causal Thinking About Detecting Racial Discrimination, 113 Nw. U. L. Rev. 1163, 1166, 1172 (2019) (arguing for a definition that accounts for “the system of social meanings or practices” that constitute social categories such as race and sex); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 355–56 (1987) (proposing a “cultural meaning” test that “would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance” and “considering evidence regarding the historical and social context in which the decision was made and effectuated”).Show More systemic and accumulated group-based disadvantages;5 5.See, e.g., Richard Thompson Ford, Bias in the Air: Rethinking Employment Discrimination Law, 66 Stan. L. Rev. 1381, 1384 (2014) (“[T]he law should replace the conceptually elusive goal of eliminating discrimination with the more concrete goal of requiring employers, government officials, and other powerful actors to meet a duty of care to avoid unnecessarily perpetuating social segregation or hierarchy.”); Siegel, supranote 2, at1146 (suggesting that equal protection doctrine might require scrutiny for “facially neutral policies” that “perpetuate, or aggravate, historic patterns of race and gender inequality”).Show More or “costs and benefits of alternative proposals in each specific setting.”6 6.See, e.g., R. Richard Banks, Class and Culture: The Indeterminacy of Nondiscrimination, 5 Stan. J. C.R. & C.L. 1, 3 (2009) (“[W]e should approach race-related policy disputes in a pragmatic manner, weighing the costs and benefits of alternative proposals in each specific setting.”).Show More

By contrast to the atrophy of race discrimination law through formalism, the law of sex discrimination seems relatively vibrant. In its landmark decision in Bostock v. Clayton County, the Roberts Court ruled that discrimination on the basis of “sex” under Title VII of the Civil Rights Act includes discrimination against lesbian, gay, and transgender workers.7 7.140 S. Ct. 1731, 1737 (2020).Show More But that decision’s reasoning is not based in any sort of contextual or historically grounded understanding of gender-based subordination.8 8.Id.at 1750–51 (denying the relevance of history and pointing out that “applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees in the 1960s—often may be seen as unexpected”).Show More Rather, it relied on a formal, sterile, individualistic concept of “but-for” causation—“if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.”9 9.Id. at 1741.Show More Thus, if an employer would not fire a woman for being attracted to men, that employer may not fire a man for being attracted to men.10 10.Id. The same argument works for the transgender employees—for example, a transgender woman may not be penalized for having traits that would be acceptable in an employee who was assigned female at birth. Id.Show More Lower courts have extended Bostock to new contexts, holding, for example, that it requires that schools allow transgender children to use restrooms consistent with their gender identities,11 11.See, e.g., infraSubsection II.A.1 (discussing Grimm v. Gloucester County School Board, 972 F.3d 586, 616, 619 (4th Cir. 2020) (affirming summary judgment in favor of a transgender plaintiff on equal protection and Title IX claims), cert. denied, 141 S. Ct. 2878 (2021)).Show More forbids an employer from firing an employee because her tampon triggered a security scanner,12 12.SeeinfraSubsection II.A.2 (discussing Flores v. Virginia Department of Corrections, No. 20-cv-00087, 2021 WL 668802, at *6 (W.D. Va. Feb. 22, 2021) (denying summary judgment in a sex discrimination case in which an employee was fired when her tampon set off a security scanner triggering the false suspicion that she was smuggling contraband)).Show More and bars schools from imposing dress codes requiring girls to wear skirts.13 13.See, e.g., infraSubsection II.A.1 (discussing Peltier v. Charter Day School, Inc., 37 F.4th 104 (4th Cir. 2021) (en banc) (affirming grant of summary judgment to plaintiffs on § 1983 equal protection claim and reversing grant of summary judgment to school on Title IX claim challenging discriminatory dress code)).Show More

This Article argues that Bostock’s but-for test is an example of a broader phenomenon that it describes as “sex discrimination formalism”: attempts to define intentional sex discrimination according to formal, abstract, logical tests, minimizing consideration of social realities and normative values.14 14.I define discrimination formalism more precisely infra Section I.A. Cf.Morton J. Horwitz, The Transformation of American Law, 1780–1860, at 254 (1977) (discussing “legal formalism” as “an intellectual system which gave common law rules the appearance of being self-contained, apolitical, and inexorable, and which, by making ‘legal reasoning seem like mathematics,’ conveyed ‘an air . . . of . . . inevitability’ about legal decisions”). I do not suggest formal rules succeed at perfect abstraction or constraint; formalism is a matter of degree. See, e.g., Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. Chi. L. Rev. 636, 640 (1999) (“The real question is ‘what degree of formalism?’ rather than ‘formalist or not?’”).Show More It identifies and examines abstract tests used by courts to determine what types of reasons count as intentional sex discrimination in various constitutional and statutory contexts and assesses how those tests work in particular cases. Contrary to the consensus view among civil rights scholars that formalism is anathema to equality,15 15.See, e.g.,supranotes 2, 4, 6 and accompanying text. But cf.Mary Anne Case,“The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1448–52 (2000) (characterizing equal protection cases on sex as standing for the formalistic rule that, when a law, on its face, treats men and women differently, it may not be based on a generalization that would be untrue for even a single individual man or woman, and arguing that, if courts took this rule seriously, it would lead “in interesting and radical directions” like marriage equality).Show More this Article argues that recent cases relying on formal tests have expanded the reach of sex discrimination law to forms of gender inequality overlooked in the past.

One contribution of this Article is to offer a typology of formal tests of disparate treatment. Much scholarship on discrimination law assumes that there are only two modes for thinking about equality: formal and substantive, and that all formal rules are the same.16 16.See, e.g.,Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Pathological Racism, Chronic Racism & Targeted Universalism, 109 Calif. L. Rev. 1107, 1111 (2021) (discussing the “standard doctrinal account,” which lumps together concerns about formal equality and anticlassification in equal protection law);cf.Aziz Z. Huq, What Is Discriminatory Intent?, 103 Cornell L. Rev. 1211, 1223–24 (2018) (“Questions of how discriminatory intent is defined and proved tend to be ancillary and subordinate to a larger critique of the ideological orientation of the doctrine.”).Show More This Article argues there are at least three distinct types of formal rules when it comes to intentional sex discrimination: (1) but-for causation, which asks whether mistreatment would have befallen an individual if their sex were different; (2) anticlassification rules, also referred to as “blindness,”17 17.This is a problematic metaphor, for, among other reasons, the fact that blind people do see race. See generally Osagie Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (2013).Show More which ask whether a decision-maker acted pursuant to an explicit or implicit policy that considers sex; and (3) “similarly situated” rules, which forbid decision-makers from treating individuals of different sexes who are alike in all relevant respects differently. Importantly, these heuristics for determining discriminatory intent do not require proof of the specific motives of discriminators.18 18.Cf.Pers. Adm’r v. Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory purpose’ . . . implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”).Show More While ostensibly aimed at discerning the same core phenomenon—discriminatory intent—these tests have taken on lives of their own in the case law as independent legal “theories” or “claims.” They most often point to the same result, but in a subset of difficult cases, the choice of formal rule can change the outcome. For example, one district judge, a Republican appointee, concluded that Bostock’s but-for test would not count discrimination on the basis of bisexuality as sex discrimination, but an anticlassification inquiry that requires decisions that are “blind” to sex would.19 19.Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571, 622 (N.D. Tex. 2021) (concluding that an employer who discriminates on the basis of bisexuality is not discriminating on the basis of sex under “[t]he traditional but-for ‘favoritism’ analyses,” but is failing to act in a way that is “‘blind’ to sex”), vacated sub nom. Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 940 (5th Cir. 2023). Ideology is unlikely to be the explanation for this twist in reasoning. The district court judge, Reed O’Connor, was appointed by President George W. Bush, and is known for striking down the policies of the Biden and Obama administrations. Tierney Sneed, Judge Notorious for Anti-Obamacare Rulings Has Another Crack, CNN (Jan. 28, 2022, 7:56 AM), https://www.cnn.com/2022/01/28/politics/obamacare-reed-oconnor-biden-doj-health/index.html [https://perma.cc/H3G3-TMDH].Show More

Another contribution of this Article is to offer an assessment of the reach of these various formal tests, relevant to next-generation sex discrimination disputes. While scholars have debated the theoretical potential of Bostock’s but-for inquiry,20 20.CompareKatie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621, 1624–25 (2021) (applauding the but-for theory on the ground that it clarifies disparate treatment law and avoids the intent requirement), withRobin Dembroff & Issa Kohler-Hausmann, Supreme Confusion About Causality at the Supreme Court, 25 CUNY L. Rev. 57, 58 (2022) (arguing thatBostock’s but-for test is incoherent and “threaten[s] to limit the reach of antidiscrimination law”), Benjamin Eidelson, Dimensional Disparate Treatment, 95 S. Cal. L. Rev. 785, 794 (2022) (arguing that rather than clarifying disparate treatment law, the but-for theory compounds confusion, is not justified by statutory text, and leads to “untenable results”), and Guha Krishnamurthi, Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law, 108 Va. L. Rev. Online 1, 4, 11 (2022) (arguing “that the Court’s simple but-for causation test, by its own lights, does not advance anti-discrimination law”).Show More they have not examined how judges are applying it in new contexts. Nor have they compared the but-for rule to other formal rules on the ground. In just over three years, Bostock has been cited by almost a thousand cases.21 21.According to the Westlaw database, Bostock had been cited by 962 federal and state cases as of October 1, 2023.Show More This Article discusses more than fifty cases decided since Bostock that are related to arguably novel or potentially controversial applications of sex discrimination doctrine.22 22.This Article reviews cases through October 1, 2023.Show More It examines these decisions from the inside out,23 23.While this is a work of legal scholarship, I draw loose inspiration from anthropological methods. Cf.Annelise Riles, The Network Inside Out 6, 16, 19 (2000) (describing an ethnographic method that attempts to gain access to modern knowledge practices from within, beginning by rendering familiar and mundane artifacts visible for analysis, in contexts in which “thick description” is challenging “because the phenomena are dispersed and the cultures are many”); Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff. L. Rev. 973, 1029–30 (2005) (urging “that the cultural study of legal technology make a methodological commitment not to reduce technology to the politics, culture, history, or personalities surrounding it—that we take the agency of technological form seriously, as a subject on its own terms, as the legal engineers among us do”).Show More endeavoring to see how their reasoning works, to take it seriously, and to hypothesize about where it might go.

This analysis reveals that courts extending sex discrimination law are foregrounding formal rules as the reasons for their decisions, not sociological arguments about the nature of discrimination or feminist or other such normative theories of the harms of discrimination.24 24.Bostock itself is an example. Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 143 n.106 (pointing out that Bostock could have been justified based on “antisubordinationist and anti-stereotyping arguments,” but these arguments “necessitate more analytical work than the simple anticlassificationist argument, and conservatives generally reject them”).Show More Formal rules can sometimes circumvent roadblocks to antidiscrimination projects, such as judgments that traits that are unique to men or women cannot be the bases for discrimination,25 25.See infraSubsection II.A.2.Show More that certain groups and individuals are too blameworthy to deserve protection,26 26.See supranote 8 (quoting Bostock v. Clayton County, 140 S. Ct. 1731, 1750 (2020)).Show More or that discriminatory practices are justified by tradition or convention.27 27.See infra Subsection II.A.1.Show More The results are not always what would be expected based on crude measures of judicial ideology.28 28.See, e.g., supranote 19. I note the political affiliations of judges throughout this Article.Show More But a close look at post-Bostock cases reveals that rather than applying formal tests with the rigor of a philosopher, judges apply them with some plasticity, reaching situations that strike them as substantively unfair. Moreover, while courts extending sex discrimination law to new contexts often gesture to Bostock’s but-for inquiry, they are more likely to rely on anticlassification and similarly situated rules. A similarly situated inquiry, which asks whether people are alike in relevant respects, has been particularly prominent in transgender rights litigation.29 29.See infra Subsection II.A.1.Show More

But formalism also has well-known drawbacks. Abstract tests of discrimination suffer from the flaws of all formalistic legal reasoning: they are, to varying degrees, indeterminate, requiring that judges rely on normative and empirical premises to apply them, but deny that they are doing so,30 30.This is a standard criticism of legal formalism. See, e.g., Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 820 (1935) (“In every field of law we should find peculiar concepts which are not defined either in terms of empirical fact or in terms of ethics but which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy.”).Show More and they are both over- and underinclusive.31 31.See, e.g., Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1701 (1976) (“The more general and the more formally realizable the rule, the greater the equitable pull of extreme cases of over- or underinclusion.”); Frederick Schauer, Formalism, 97 Yale L.J. 509, 510, 535 (1988) (describing formalism as “the concept of decisionmaking according to rule,” and pointing out that “it is exactly a rule’s rigidity, even in the face of applications that would ill serve its purpose, that renders it a rule”).Show More This Article does not make any broad claims about the causal role of formal legal reasoning in judicial decision-making—causation is complex and context specific. It is also not a brief in support of discrimination formalism as a tool of progressive politics—what tools movement lawyers of any political persuasion ought to use will depend on the circumstances. Nor does it argue that sex discrimination formalism achieves rule of law aspirations such as determinacy, predictability, or judicial constraint—particularly not in legal disputes that implicate acute ideological conflicts. Rather, this Article attempts, to the extent possible, to offer a thick description32 32.See supranote 23.Show More of how thin legal rules33 33.Cf.Toni M. Massaro, Gay Rights, Thick and Thin, 49 Stan. L. Rev. 45, 46–47 (1996) (contrasting “thin” doctrinal arguments that appeal to “principles of neutrality” with “thick” arguments that ask judges to “define, or appear to endorse,” particular sexual orientations).Show More operate in a discrete set of cases. It contributes to scholarly criticism of formalism in discrimination law by arguing that, like unhappy families, each of the various formal tests is problematic in its own way. It departs from those criticisms in disputing that a wholesale move toward more substantive inquiries of the sort favored by most progressive scholars would achieve those scholars’ ultimate aspirations for the law. This Article does not endeavor to advance any one single theory of discrimination law, which is a “ramshackle institution, full of compromise and contradiction.”34 34.Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 16 (2000).Show More Rather, it adds to the evidence that a unified theory is not normatively desirable.35 35.See, e.g., Banks, supranote 6, at19 (“The effort to arrive at a unitary conception of discrimination would be misguided even if an authoritative single decision maker—say, the United States Supreme Court—propounded the definition. Any single definition would fail to account for the distinctive features of the various settings where claims of racial discrimination might arise.”); Huq, supranote 16, at 1240 (explaining that discriminatory intent is “unavoidabl[y]” “protean and plural”); George Rutherglen, Disaggregated Discrimination and the Rise of Identity Politics, 26 Wm. & Mary J. Race, Gender & Soc. Just. 391, 394–95 (2020) (arguing that the multiplicity of plausible philosophical theories of the wrong of discrimination and “discrepancies” in legal doctrines “counsel against the quest for uniformity based on the essential nature of discrimination”).Show More

Questions about the meaning of sex discrimination are timely as courts resolve issues involving the scope of LGBTQ+ rights after Bostock and the constitutionality of legal restrictions on abortion after Dobbs.36 36.Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).Show More Bostock did not address whether its holding would apply to dress codes, restrooms, health care, and many other topics—controversies now being resolved by federal courts.37 37.Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); id.at 1778–83 (Alito, J., dissenting) (noting these among “some of the potential consequences” of Bostock).Show More While transgender litigants racked up an impressive win rate through 2021,38 38.Katie Eyer, Transgender Constitutional Law, 171 U. Pa. L. Rev. 1405, 1405, 1408 (2023) (surveying constitutional transgender rights cases from 2017–2021 and concluding that “recent transgender rights litigation has resulted in important and consistent victories for transgender constitutionalism in the lower and state courts”).Show More results since have been mixed.39 39.There have been significant recent losses. See, e.g., Williams ex rel. L.W. v. Skrmetti, No. 23-5600, 2023 WL 6321688, at *23 (6th Cir. Sept. 28, 2023) (reversing grants of preliminary injunctions against Kentucky and Tennessee laws barring gender-affirming health care for transgender minors); Eknes-Tucker v. Governor of Ala., No. 22-11707, 2023 WL 5344981, at *1 (11th Cir. Aug. 21, 2023) (vacating district court’s preliminary injunction of Alabama law prohibiting gender-affirming health care for transgender minors); Kasper ex rel. Adams v. Sch. Bd., 57 F.4th 791, 799–800 (11th Cir. 2022) (en banc) (reversing district court’s conclusions, following a bench trial, that school policy barring a transgender boy from the boys’ restroom violated the Equal Protection Clause and Title IX); Fowler v. Stitt, No. 22-cv-00115, 2023 WL 4010694, at *24 (N.D. Okla. June 8, 2023) (granting motion to dismiss challenge to state policy prohibiting transgender individuals from changing the sex designations on their birth certificates), appeal docketed, No. 23-5080 (10th Cir. July 7, 2023); Gore v. Lee, No. 19-cv-00328, 2023 WL 4141665, at *37 (M.D. Tenn. June 22, 2023) (similar), appeal docketed, No. 23-5669 (6th Cir. July 26, 2023); B.P.J. v. W. Va. State Bd. of Educ., No. 21-cv-00316, 2023 WL 111875, at *10 (S.D. W. Va. Jan. 5, 2023) (denying transgender litigant’s motion for summary judgment in case challenging law forbidding transgender girls from playing girls’ sports in school), argued, No. 23-1078 (4th Cir. Oct. 27, 2023); A.H. ex rel. D.H. v. Williamson Cnty. Bd. of Educ., 638 F. Supp. 3d 821, 837 (M.D. Tenn. Nov. 2, 2022) (denying preliminary injunction in case challenging Tennessee state law barring transgender schoolchildren from using restrooms consistent with their gender identities).Show More Most notably, a 2022 en banc decision by the Eleventh Circuit rejected a “cornucopia” of formal theories advanced by a transgender student in a case over restroom access.40 40.Adams, 57 F.4th at 846 n.13 (Jill Pryor, J., dissenting) (describing six distinct theories that the majority rejected).Show More While Dobbs addressed equal protection issues, its statements on that question are dicta.41 41.Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 68, 93 (2022) (noting that the parties had not asserted an equal protection claim in Dobbs and observing that “Justice Alito’s attempt to block an equal protection claim that was not even before the Court in Dobbs is evidence of equality’s power, not its weakness”).Show More State courts are now resolving equal protection challenges to abortion bans under their own state constitutions.42 42.SeePlanned Parenthood of the Great Nw. v. State, 522 P.3d 1132, 1198–200 (Idaho 2023) (rejecting equal protection challenges to Idaho law restricting abortion); Siegel et al., supranote 41, at 95–96 (discussing state court decisions on the right to abortion as a matter of gender equality).Show More Yet few scholars are focused “on questions of equal protection and pregnancy.”43 43.Siegel et al., supranote 41, at 73–74 (explaining that “[t]his is because, for decades, the question has been buried under the substantive due process doctrines regulating abortion . . . , and under federal statutes that prohibit pregnancy discrimination, including by government actors”).Show More

This Article proceeds in four Parts. Part I defines discrimination formalism, explains its importance, and offers a typology of formal theories of disparate treatment. Part II argues that courts are relying on formalistic tests to expand sex discrimination law in several contested contexts, including debates over discrimination based on bisexuality, nonbinary gender, menstruation, genitalia, and other aspects of reproductive biology, and sex-segregated restrooms, dress codes, and other such policies. It asks whether various formal tests have potential to further expand sex discrimination law on these issues, and explains the reasons for the appeal of formal over substantive inquiries. Part III probes the limits of sex discrimination formalism and addresses potential criticisms of formal rules. Part IV draws out lessons from this account for debates over formal equality and the future of civil rights law.

  1.  Kenneth L. Karst, The Supreme Court, 1976 Term—Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 Harv. L. Rev. 1, 39 (1977). ↑
  2.  See, e.g., Ian Haney-López, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1784 (2012) (“[D]iscriminatory intent doctrine excludes evidence of continued discrimination against non-Whites rooted in history, contemporary practices, and social science . . . . Meanwhile, . . . colorblindness similarly closes courthouse doors to evidence showing that state actors sometimes use race to break down inequality and to foster integration.”); Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111, 1113 (1997) (criticizing “[c]ontemporary equal protection law” because it “is premised on a formal and historically static conception of ‘discrimination’” focused on “classification” or “discriminatory purpose—a concept the Court has defined as tantamount to malice”). ↑
  3.  See, e.g., Haney-López, supra note 2, at 1876 (proposing a “contextual intent” test). ↑
  4.  See, e.g., Issa Kohler-Hausmann, Eddie Murphy and the Dangers of Counterfactual Causal Thinking About Detecting Racial Discrimination, 113 Nw. U. L. Rev. 1163, 1166, 1172 (2019) (arguing for a definition that accounts for “the system of social meanings or practices” that constitute social categories such as race and sex); Charles R. Lawrence III, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 Stan. L. Rev. 317, 355–56 (1987) (proposing a “cultural meaning” test that “would evaluate governmental conduct to see if it conveys a symbolic message to which the culture attaches racial significance” and “considering evidence regarding the historical and social context in which the decision was made and effectuated”). ↑
  5.  See, e.g., Richard Thompson Ford, Bias in the Air: Rethinking Employment Discrimination Law, 66 Stan. L. Rev. 1381, 1384 (2014) (“[T]he law should replace the conceptually elusive goal of eliminating discrimination with the more concrete goal of requiring employers, government officials, and other powerful actors to meet a duty of care to avoid unnecessarily perpetuating social segregation or hierarchy.”); Siegel, supra note 2, at 1146 (suggesting that equal protection doctrine might require scrutiny for “facially neutral policies” that “perpetuate, or aggravate, historic patterns of race and gender inequality”). ↑
  6.  See, e.g., R. Richard Banks, Class and Culture: The Indeterminacy of Nondiscrimination, 5 Stan. J. C.R. & C.L. 1, 3 (2009) (“[W]e should approach race-related policy disputes in a pragmatic manner, weighing the costs and benefits of alternative proposals in each specific setting.”). ↑
  7.  140 S. Ct. 1731, 1737 (2020). ↑
  8.  Id. at 1750–51 (denying the relevance of history and pointing out that “applying protective laws to groups that were politically unpopular at the time of the law’s passage—whether prisoners in the 1990s or homosexual and transgender employees in the 1960s—often may be seen as unexpected”). ↑
  9.  Id. at 1741. ↑
  10.  Id. The same argument works for the transgender employees—for example, a transgender woman may not be penalized for having traits that would be acceptable in an employee who was assigned female at birth. Id. ↑
  11.  See, e.g., infra Subsection II.A.1 (discussing Grimm v. Gloucester County School Board, 972 F.3d 586, 616, 619 (4th Cir. 2020) (affirming summary judgment in favor of a transgender plaintiff on equal protection and Title IX claims), cert. denied, 141 S. Ct. 2878 (2021)). ↑
  12.  See infra Subsection II.A.2 (discussing Flores v. Virginia Department of Corrections, No. 20-cv-00087, 2021 WL 668802, at *6 (W.D. Va. Feb. 22, 2021) (denying summary judgment in a sex discrimination case in which an employee was fired when her tampon set off a security scanner triggering the false suspicion that she was smuggling contraband)). ↑
  13.  See, e.g., infra Subsection II.A.1 (discussing Peltier v. Charter Day School, Inc., 37 F.4th 104 (4th Cir. 2021) (en banc) (affirming grant of summary judgment to plaintiffs on § 1983 equal protection claim and reversing grant of summary judgment to school on Title IX claim challenging discriminatory dress code)). ↑
  14.  I define discrimination formalism more precisely infra Section I.A. Cf. Morton J. Horwitz, The Transformation of American Law, 1780–1860, at 254 (1977) (discussing “legal formalism” as “an intellectual system which gave common law rules the appearance of being self-contained, apolitical, and inexorable, and which, by making ‘legal reasoning seem like mathematics,’ conveyed ‘an air . . . of . . . inevitability’ about legal decisions”). I do not suggest formal rules succeed at perfect abstraction or constraint; formalism is a matter of degree. See, e.g., Cass R. Sunstein, Must Formalism Be Defended Empirically?, 66 U. Chi. L. Rev. 636, 640 (1999) (“The real question is ‘what degree of formalism?’ rather than ‘formalist or not?’”). ↑
  15.  See, e.g., supra notes 2, 4, 6 and accompanying text. But cf. Mary Anne Case, “The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1448–52 (2000) (characterizing equal protection cases on sex as standing for the formalistic rule that, when a law, on its face, treats men and women differently, it may not be based on a generalization that would be untrue for even a single individual man or woman, and arguing that, if courts took this rule seriously, it would lead “in interesting and radical directions” like marriage equality). ↑
  16.  See, e.g., Guy-Uriel E. Charles & Luis Fuentes-Rohwer, Pathological Racism, Chronic Racism & Targeted Universalism, 109 Calif. L. Rev. 1107, 1111 (2021) (discussing the “standard doctrinal account,” which lumps together concerns about formal equality and anticlassification in equal protection law); cf. Aziz Z. Huq, What Is Discriminatory Intent?, 103 Cornell L. Rev. 1211, 1223–24 (2018) (“Questions of how discriminatory intent is defined and proved tend to be ancillary and subordinate to a larger critique of the ideological orientation of the doctrine.”). ↑
  17.  This is a problematic metaphor, for, among other reasons, the fact that blind people do see race. See generally Osagie Obasogie, Blinded by Sight: Seeing Race Through the Eyes of the Blind (2013). ↑
  18.  Cf. Pers. Adm’r v. Feeney, 442 U.S. 256, 279 (1979) (“‘Discriminatory purpose’ . . . implies that the decisionmaker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”). ↑
  19.  Bear Creek Bible Church v. EEOC, 571 F. Supp. 3d 571, 622 (N.D. Tex. 2021) (concluding that an employer who discriminates on the basis of bisexuality is not discriminating on the basis of sex under “[t]he traditional but-for ‘favoritism’ analyses,” but is failing to act in a way that is “‘blind’ to sex”), vacated sub nom. Braidwood Mgmt., Inc. v. EEOC, 70 F.4th 914, 940 (5th Cir. 2023). Ideology is unlikely to be the explanation for this twist in reasoning. The district court judge, Reed O’Connor, was appointed by President George W. Bush, and is known for striking down the policies of the Biden and Obama administrations. Tierney Sneed, Judge Notorious for Anti-Obamacare Rulings Has Another Crack, CNN (Jan. 28, 2022, 7:56 AM), https://www.cnn.com/2022/01/28/politics/obamacare-reed-oconnor-biden-doj-health/index.html [https://perma.cc/H3G3-TMDH]. ↑
  20.  Compare Katie Eyer, The But-For Theory of Anti-Discrimination Law, 107 Va. L. Rev. 1621, 1624–25 (2021) (applauding the but-for theory on the ground that it clarifies disparate treatment law and avoids the intent requirement), with Robin Dembroff & Issa Kohler-Hausmann, Supreme Confusion About Causality at the Supreme Court, 25 CUNY L. Rev. 57, 58 (2022) (arguing that Bostock’s but-for test is incoherent and “threaten[s] to limit the reach of antidiscrimination law”), Benjamin Eidelson, Dimensional Disparate Treatment, 95 S. Cal. L. Rev. 785, 794 (2022) (arguing that rather than clarifying disparate treatment law, the but-for theory compounds confusion, is not justified by statutory text, and leads to “untenable results”), and Guha Krishnamurthi, Not the Standard You’re Looking For: But-For Causation in Anti-Discrimination Law, 108 Va. L. Rev. Online 1, 4, 11 (2022) (arguing “that the Court’s simple but-for causation test, by its own lights, does not advance anti-discrimination law”). ↑
  21.  According to the Westlaw database, Bostock had been cited by 962 federal and state cases as of October 1, 2023. ↑
  22.  This Article reviews cases through October 1, 2023. ↑
  23.  While this is a work of legal scholarship, I draw loose inspiration from anthropological methods. Cf. Annelise Riles, The Network Inside Out 6, 16, 19 (2000) (describing an ethnographic method that attempts to gain access to modern knowledge practices from within, beginning by rendering familiar and mundane artifacts visible for analysis, in contexts in which “thick description” is challenging “because the phenomena are dispersed and the cultures are many”); Annelise Riles, A New Agenda for the Cultural Study of Law: Taking on the Technicalities, 53 Buff. L. Rev. 973, 1029–30 (2005) (urging “that the cultural study of legal technology make a methodological commitment not to reduce technology to the politics, culture, history, or personalities surrounding it—that we take the agency of technological form seriously, as a subject on its own terms, as the legal engineers among us do”). ↑
  24.  Bostock itself is an example. Cary Franklin, Living Textualism, 2020 Sup. Ct. Rev. 119, 143 n.106 (pointing out that Bostock could have been justified based on “antisubordinationist and anti-stereotyping arguments,” but these arguments “necessitate more analytical work than the simple anticlassificationist argument, and conservatives generally reject them”). ↑
  25.  See infra Subsection II.A.2. ↑
  26.  See supra note 8 (quoting Bostock v. Clayton County, 140 S. Ct. 1731, 1750 (2020)). ↑
  27.  See infra Subsection II.A.1. ↑
  28.  See, e.g., supra note 19. I note the political affiliations of judges throughout this Article. ↑
  29.  See infra Subsection II.A.1. ↑
  30.  This is a standard criticism of legal formalism. See, e.g., Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809, 820 (1935) (“In every field of law we should find peculiar concepts which are not defined either in terms of empirical fact or in terms of ethics but which are used to answer empirical and ethical questions alike, and thus bar the way to intelligent investigation of social fact and social policy.”). ↑
  31.  See, e.g., Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 Harv. L. Rev. 1685, 1701 (1976) (“The more general and the more formally realizable the rule, the greater the equitable pull of extreme cases of over- or underinclusion.”); Frederick Schauer, Formalism, 97 Yale L.J. 509, 510, 535 (1988) (describing formalism as “the concept of decisionmaking according to rule,” and pointing out that “it is exactly a rule’s rigidity, even in the face of applications that would ill serve its purpose, that renders it a rule”). ↑
  32.  See supra note 23. ↑
  33.  Cf. Toni M. Massaro, Gay Rights, Thick and Thin, 49 Stan. L. Rev. 45, 46–47 (1996) (contrasting “thin” doctrinal arguments that appeal to “principles of neutrality” with “thick” arguments that ask judges to “define, or appear to endorse,” particular sexual orientations). ↑
  34.  Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 16 (2000). ↑
  35.  See, e.g., Banks, supra note 6, at 19 (“The effort to arrive at a unitary conception of discrimination would be misguided even if an authoritative single decision maker—say, the United States Supreme Court—propounded the definition. Any single definition would fail to account for the distinctive features of the various settings where claims of racial discrimination might arise.”); Huq, supra note 16, at 1240 (explaining that discriminatory intent is “unavoidabl[y]” “protean and plural”); George Rutherglen, Disaggregated Discrimination and the Rise of Identity Politics, 26 Wm. & Mary J. Race, Gender & Soc. Just. 391, 394–95 (2020) (arguing that the multiplicity of plausible philosophical theories of the wrong of discrimination and “discrepancies” in legal doctrines “counsel against the quest for uniformity based on the essential nature of discrimination”). ↑
  36.  Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022). ↑
  37.  Bostock v. Clayton County, 140 S. Ct. 1731, 1753 (2020); id. at 1778–83 (Alito, J., dissenting) (noting these among “some of the potential consequences” of Bostock). ↑
  38.  Katie Eyer, Transgender Constitutional Law, 171 U. Pa. L. Rev. 1405, 1405, 1408 (2023) (surveying constitutional transgender rights cases from 2017–2021 and concluding that “recent transgender rights litigation has resulted in important and consistent victories for transgender constitutionalism in the lower and state courts”). ↑
  39.  There have been significant recent losses. See, e.g., Williams ex rel. L.W. v. Skrmetti, No. 23-5600, 2023 WL 6321688, at *23 (6th Cir. Sept. 28, 2023) (reversing grants of preliminary injunctions against Kentucky and Tennessee laws barring gender-affirming health care for transgender minors); Eknes-Tucker v. Governor of Ala., No. 22-11707, 2023 WL 5344981, at *1 (11th Cir. Aug. 21, 2023) (vacating district court’s preliminary injunction of Alabama law prohibiting gender-affirming health care for transgender minors); Kasper ex rel. Adams v. Sch. Bd., 57 F.4th 791, 799–800 (11th Cir. 2022) (en banc) (reversing district court’s conclusions, following a bench trial, that school policy barring a transgender boy from the boys’ restroom violated the Equal Protection Clause and Title IX); Fowler v. Stitt, No. 22-cv-00115, 2023 WL 4010694, at *24 (N.D. Okla. June 8, 2023) (granting motion to dismiss challenge to state policy prohibiting transgender individuals from changing the sex designations on their birth certificates), appeal docketed, No. 23-5080 (10th Cir. July 7, 2023); Gore v. Lee, No. 19-cv-00328, 2023 WL 4141665, at *37 (M.D. Tenn. June 22, 2023) (similar), appeal docketed, No. 23-5669 (6th Cir. July 26, 2023); B.P.J. v. W. Va. State Bd. of Educ., No. 21-cv-00316, 2023 WL 111875, at *10 (S.D. W. Va. Jan. 5, 2023) (denying transgender litigant’s motion for summary judgment in case challenging law forbidding transgender girls from playing girls’ sports in school), argued, No. 23-1078 (4th Cir. Oct. 27, 2023); A.H. ex rel. D.H. v. Williamson Cnty. Bd. of Educ., 638 F. Supp. 3d 821, 837 (M.D. Tenn. Nov. 2, 2022) (denying preliminary injunction in case challenging Tennessee state law barring transgender schoolchildren from using restrooms consistent with their gender identities). ↑
  40.  Adams, 57 F.4th at 846 n.13 (Jill Pryor, J., dissenting) (describing six distinct theories that the majority rejected). ↑
  41.  Reva B. Siegel, Serena Mayeri & Melissa Murray, Equal Protection in Dobbs and Beyond: How States Protect Life Inside and Outside of the Abortion Context, 43 Colum. J. Gender & L. 67, 68, 93 (2022) (noting that the parties had not asserted an equal protection claim in Dobbs and observing that “Justice Alito’s attempt to block an equal protection claim that was not even before the Court in Dobbs is evidence of equality’s power, not its weakness”). ↑
  42.  See Planned Parenthood of the Great Nw. v. State, 522 P.3d 1132, 1198–200 (Idaho 2023) (rejecting equal protection challenges to Idaho law restricting abortion); Siegel et al., supra note 41, at 95–96 (discussing state court decisions on the right to abortion as a matter of gender equality). ↑

  43.  Siegel et al., supra note 41, at 73–74 (explaining that “[t]his is because, for decades, the question has been buried under the substantive due process doctrines regulating abortion . . . , and under federal statutes that prohibit pregnancy discrimination, including by government actors”). ↑

©Virginia Law Review Association. All rights reserved.