Bostock and Textualism: A Response to Berman and Krishnamurthi

In Bostock was Bogus: Textualism, Pluralism, and Title VII, Mitchell Berman Guha Krishnamurthi argue that v. Clayton County rested on a defective understanding of causation. An employer who discriminates against LGBT people is not motivated by the employee’s sex, but rather sexual orientation. They mistakenly take linguistic happenstance separate term for gender-atypical behavior – here, “homosexuality” to subtract those whom describes from statute’s protection. Parallel conjunctions discriminations do balance out. If they did, statute could be nullified in all its applications allowing employers discriminate those, male or female, black white, seek jobs inconsistent with traditional social role their race sex.