Scholars have for decades lamented that intersectionality, whilst influencing certain cases, has not achieved widespread momentum. Title VII, it seems, was always destined to serve as the first intersectional battleground, and Bostock may very well serve as the long hoped-for case that enables intersectionality to gain traction.
In their insightful and unfairly neglected book, Beyond All Reason: The Radical Assault on Truth in American Law, Daniel Farber and Suzanna Sherry discerned a key distinction between critical social theories as they had infected the humanities and the same theories as manifested in legal academia. In the first instance, literature, the arts, etc. were perhaps irreparably changed as disciplines, as areas of scholarly inquiry and expression. This was a lamentable but relatively contained development. By contrast, those legal scholars that got bit by the critical theory bug sought to change law and public policy post haste. Early Critical Race Theory (CRT) scholars proffered a radically restrictive understanding of the first amendment, nullifying juries on the basis of race, decriminalization vis a vis racial disparities, and so on. The point is that whereas deconstructionist lit crits may have criminally debase the western canon with glee, the race crits theorized defunding the police and the like. The immediate and measurable impact of the latter is more apparent than the former. And as critical social justice warriors like to say, intent is irrelevant, impact is all. Giving Homer the boot from the curriculum is one thing, altering the trajectory of legal precedent at the highest level is quite another.
The practitioners of CRT fully embody Marx’s famous call in his Theses on Feuerbach (1845) for true philosophers to not simply interpret the world but to change it. Indeed, one of the primary reasons for the split of CRT from the Critical Legal Studies movement (CLS) was the latter’s inability, in the opinion of CRT’ers, to offer viable strategies for social transformation—this because it did not adequately incorporate race and racism into its analysis of the role of law as hegemonic ideology. Accordingly, focused commitment to political, cultural, and legal transformation has always been central to CRT. Faber and Sherry perfectly characterize CRT, and to a lesser extent, CLS: “If literary theorists, historians, and philosophers are like theoretical physicists, then the [critical theorists] in law are the equivalent of the engineers who convert scientific theory into operating machinery.”
The real impact of CRT on American law is most evident in the growing but little recognized influence of intersectionality. Along with Ibram Kendi’s “antiracism,” Robin DiAngelo’s “white fragility,” and Peggy McIntosh’s “white privilege,” Kimberlé Crenshaw’s intersectionality now owns real estate in the public lexicon. All four ideas are ultimately drawn from CRT thought in different ways. Something about Kendi’s, DiAngelo’s, McIntosh’s, and Crenshaw’s work has captivated the popular imagination, but what distinguishes Crenshaw’s intersectionality is its clear and demonstrable effect on case law, thereby fulfilling a core, constituting aim of her discipline.
Crenshaw may not (yet) have topped the Amazon bestseller list, drawn a $6,000 per hour speaker’s fee, or received $10 million research grants from Jack Dorsey, but it is she, not Kendi, DiAngelo, or McIntosh who will enjoy true longevity of influence. Why? Because her ideas are instrumental in transforming law—and through law’s pedagogical effect, public mores, and popular opinion—most notably in the recent Supreme Court Title VII decision, Bostock v. Clayton County (2020). What is clear at this juncture is that intersectional theories of discrimination will increasingly govern civil rights litigation. Courts are increasingly finding Crenshaw’s brainchild useful and persuasive, especially in the context of employment discrimination.
In her original article articulating intersectionality, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics,” Crenshaw explained the alleged conundrum that intersectionality was intended to address,
dominant conceptions of discrimination condition us to think about subordination as disadvantage occurring along a single categorical axis…this single-axis framework erases Black women in the conceptualization, identification and remediation of race and sex discrimination by limiting the inquiry to the experiences of otherwise-privileged members of the group. In other words, in race discrimination cases, discrimination tends to be viewed in terms of sex- or class-privileged Blacks; in sex discrimination cases, the focus is on race- and class-privileged women.
In other words, black women suffer a unique form of discrimination. A single-axis framework obscures this and implicitly sets up black men as the exemplar for anti-black discrimination, and white women as the representative of misogyny. Black men, insofar as they are men in a male dominant society, are privileged; white women, insofar as they are white, are likewise privileged in a white dominant society. So long as conceptions of discrimination in the law are dominated by single axis thinking, black women, who stand at the intersection of two forms of oppression and enjoy neither relative privilege, slip through the cracks.
[t]his focus [in antidiscrimination law] on the most privileged group members marginalizes those who are multiply burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination.
But neither is discrimination experienced by black women “additive,” or a simple combination of racism and sexism, says Crenshaw. Black women are not merely black and women, but black women, who exist at the bottom of both the racial and gender hierarchies that reinforce one another. Conversely, it is not merely whites and males that sit atop the hierarchy, but white men. Simply fitting black women into a preexisting analytical structure would not do. “Because the intersectional experience is greater than the sum of racism and sexism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated.” In the individual black woman, her race and gender are inextricably linked, inseparable—and this dictates her experience and social location.
The solution, per Crenshaw, is to adopt a multi-axes framework that recognizes the interlocking, mutually reinforcing and cumulative nature of both anti-black racism and misogyny.
The point is that Black women can experience discrimination in any number of ways and that the contradiction arises from our assumptions that their claims of exclusion must be unidirectional. Consider an analogy to traffic in an intersection, coming and going in all four directions. Discrimination, like traffic through an intersection, may flow in one direction, and it may flow in another. If an accident happens in an intersection, it can be caused by cars traveling from any number of directions and, sometimes, from all of them. Similarly, if a Black woman is harmed because she is in the intersection, her injury could result from sex discrimination or race discrimination.
To demonstrate the need for intersectionality in American law, Crenshaw surveyed several Title VII—which makes it unlawful for an employer to discriminate on the basis of race, color, religion, sex, or national origin—cases that involved black female plaintiffs. In each case, the courts refused to recognize intersectional theories of discrimination, forcing instead the plaintiffs to—in Crenshaw’s opinion, awkwardly—fit their claims into either race or sex-based boxes. Employment discrimination cases like DeGraffenreid v. General Motors (E.D. Mo. 1976) insisted on defining race and sex discrimination doctrine by “white women’s and black men’s experiences.” Black women, said DeGraffenreid, simply did not constitute a “special class to be protected from discrimination.” To provide a “super-remedy” would violate clear statutory intent. The plaintiffs in DeGraffenreid could either “state a cause of action for race discrimination, sex discrimination… but not a combination of both.” A claim based on the intersection of two legally protected categories would not be entertained.
In Crenshaw’s opinion, black women were being forced to bisect or disaggregate their identity. Title VII permitted only a singular approach to identity, said the court; it took the word “or” in Title VII’s text seriously and literally. It subsequently dismissed the plaintiffs’ racial discrimination claim and held that since General Motors had hired women generally it had not discriminated based on sex. Moore v. Hughes Helicopter, Inc. (9th Cir. 1983) similarly rejected black females as a special class. Lee v. Walters (E.D. Pa. 1988) accepted a claim for discrimination based on national origin but rejected concomitant claims brought on the basis of race and sex because there were white females and Asian men holding the position in question. Chaddah v Harris Bank Glencoe-Northbrook, N.A. (N.D. Ill. 1994), denied a claim of discrimination against an older Asian woman. And so on. The first rounds of Title VII refused to consider intersectional claims.
Crenshaw meant to change this one-dimensional bent of Title VII—which some have argued does nothing more than reinforce white male privilege. (Indeed, Crenshaw’s greatest contribution to CRT generally is that intersectionality allowed CRT’s analysis to expand beyond race and class and thereby develop multifaceted considerations of identity and a robust conception of hegemonic oppression.) As Bradley Allan Areheart has put it, “Intersectionality provides a theoretical framework” through which plaintiffs can seek remedies for multiple forms of discrimination instead of being forced “to distill their discrimination into one singular claim.” Theorists like Areheart think this a more sensible and exact approach to antidiscrimination law because intersectionality, in decidedly non-essentialist fashion, recognizes that “we all stand at multiple intersections of our fragmented legal selves.”
It is fitting, then, that intersectionality would enter American case law through Title VII suits; it was always meant to. And although intersectionality has taken on a life of its own, spreading its tentacles into numerous disciplines and transcended the bounds of race and gender to include sexual orientation and other identity markers, application of intersectionality to Title VII has remained a persistent focus of critical race scholars. Indeed, in the years since Crenshaw’s initial article an entire cottage industry of intersectional studies dedicated to Title VII has emerged. Paulette Caldwell, Emma Reece Denny, Peggie Smith, Nancy Marcus, Serena Mayeri, and Yvette N. A. Pappoe have all made notable contributions to this literature.
These scholars have for decades lamented that intersectionality, whilst influencing certain cases, has not achieved widespread momentum. Title VII, it seems, was always destined to serve as the first intersectional battleground, and Bostock may very well serve as the long hoped-for case that enables intersectionality to gain traction.
Bostock v. Clayton County came to the Supreme Court as a consolidation of three cases. The first, Bostock‘s namesake, arrived from the Eleventh Circuit wherein said court, following past precedent, held that Title VII of the Civil Rights Act of 1964 (CRA) did not prohibit employers from firing employees because of sexual orientation. Around the same time, the Second Circuit in Zarda v. Altitude Express (2nd Cir. 2018), following the Seventh Circuit in Hively v. Ivy Tech (7th Cir. 2017), ruled in the exact opposite way. Soon after, the Sixth Circuit, in EEOC v. R.G. & G.R. Harris Funeral Homes (6th Cir. 2018), found Title VII’s ban on “sex” discrimination to encompass discrimination based on an employee’s transgender status.
The CRA, of course, was the landmark legislation passed during the civil rights movement the primary purpose of which was to combat racial discrimination, viz., Jim Crow. Among the act’s provisions, as noted above, Title VII disallows employment discrimination on the basis of, or “because of,” or “but for,” race, color, religion, sex, or national origin. Title VII cases typically fall within two categories: disparate treatment (i.e., discrimination on the basis of a protected characteristic), and disparate impact (i.e., facially neutral practices with discriminatory effects). The former covers intentional discrimination and the latter unintentional. McDonnell Douglas Corp. v. Green (1973) set up the basic framework for disparate treatment and Griggs v. Duke Power Co. (1971) established the same for disparate impact, which the Civil Rights Act of 1991 reinforced.
Disparate treatment was in play in Bostock. Three major cases from the 1980s and 1990s ruled that sexual harassment and gender stereotyping were included in these restrictions. The question before the Supreme Court in Bostock was whether sexual orientation and gender identity were included in Title VII prohibition on “sex” discrimination.
Justice Neil Gorsuch delivered the opinion, writing for a 6-3 majority and holding that Title VII protections do extend to sexual orientation and gender identity. Gorsuch purported to apply a straightforward textualist reading of the statute. Although all parties ceded that the term “sex” in 1964 referred only to “biological distinctions between male and female,” Gorsuch maintained that “only the words on the page,” not the original intent of the legislators, “constitute the law adopted by Congress.”
Accordingly, Gorsuch reasoned that because discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat individual employees differently, in part, because of sex, sexual orientation and gender identity are protected under “sex in Title VII. But for a gay man’s biological sex he would not have been fired for expressing attraction to men; but for a transgender woman’s biological sex she would not have been fired for presenting as a woman. Stated differently, “[I]f changing the employee’s sex would have yielded a different choice by the employer… a statutory violation has occurred.” Gorsuch added that such cases of discrimination must be considered on an individual basis rather than a group basis. For instance, just because an employer does not discriminate against women generally, or as a class, does not mean that he is off the hook for discriminating against a particular woman because of her sex.
Whether or not Gorsuch was appropriately doing textualism is up for debate. What was clear was that most proponents of textualism were surprised by Bostock and what was largely cast as another defection by a conservative judicial appointee.
Since Bostock was handed down, the legal world has tried to make sense of Gorsuch’s curious reasoning, simplistic logic, half-baked Title VII standard, mishandling of precedent, his conflation of identity with behavior, and apparent disregard for both legislative intent and the original public meaning of Title VII’s language. (Many commentators worried about the unintended consequences and externalities of the case, specifically related to religious liberty, despite the fact that the Bostock majority largely dismissed those concerns at the outset.) Of course, progressive observers were thrilled and cast Bostock as the advent of a new textualist opportunities for the LGBT movement. But even those who welcomed warmly the Bostock ruling were surprised, and a bit befuddled, by the turn in Gorsuch’s reasoning.
Perhaps alone amongst dissenters and commentators of all stripes, Justice Samuel Alito perceived the true source of Bostock‘s peculiarity, embedded in the majority’s reasoning—indeed, it was the linchpin of the whole case. It was the inseparability of sex and sexual orientation or gender identity that was central to Gorsuch’s textualist application and was the glue that held the holding together. It is intersectionality that makes the reasoning of Bostock tick.
Having berated the majority opinion for nearly twelve pages, Alito identified an ancillary assumption exhibited by Gorsuch and the majority, one that was intricate to the justice’s reasoning. As Alito put it, the majority argued that “sexual orientation and gender identity are closely related to sex.” In the words of the majority, sexual orientation and gender identity are “inextricably bound up with sex.” Therefore, discrimination on the basis of sexual orientation or gender identity necessarily and unavoidably involves “sex-based rules.” Based on this assumption, Gorsuch was able to argue that discrimination based on either sexual orientation or gender identity simply is discrimination based on sex as a matter of straightforward textualist evaluation and, therefore, falls under Title VII’s purview.
Alito’s most important insight, however, was that this argument—the key to Bostock—did not appear out of thin air nor organically spring into Gorsuch’s Oxford-trained head. Rather it was nothing more than “a variant of an argument found in many of the amicus briefs filed in support of the employees and in the lower court decisions that agreed with the Court’s interpretation.” The majority, according to Alito, had been evidently influenced by this novel, intersectional conception of both Title VII and the relationship between sex and sexual orientation and gender identity. It was no coincidence that for the preceding thirty years, certain legal scholars had been asserting the inextricable interaction of race, sex, and gender, and that now the court was speaking and thinking in the same way.