n June 2020, the Supreme Court decided Bostock v. Clayton County. In Bostock, the Court held that discrimination on the basis of sexual orientation and transgender status per se constitutes discrimination "because of sex" for purposes of Title VIL But Bostock inspires the question of whether its holding and reasoning apply in other contexts, including the Equal Protection Clause context. While the Supreme Court has held intermediate scrutiny applies to sex classifications analyzed under the Equal Protection Clause, the Court has yet to elucidate the level of scrutiny that applies to LGBTQ classifications. Meanwhile, state and federal courts have developed vastly diverging approaches.
This Article is the first to catalogue Bostock's citing cases that extend Bostock beyond the Title VII context. More importantly, this Article recognizes for the first time that courts will inevitably extend Justice Gorsuch's opinion in Bostock to the Equal Protection Clause context and thus apply intermediate scrutiny to LGBTQ classifications in future cases. This is so because the reasoning that Justice Gorsuch provides in Bostock-that LGBTQ discrimination is necessarily sex discrimination because one cannot discriminate against an LGBTQ person absent considering the person's sex-is not limited to the text of Title VIL And because LGBTQ discrimination is sex discrimination after Bostock, logically, courts should assess both forms of discrimination under the same standard of review.
Kaleb Byars, Bostock: An Inevitable Guarantee of Heightened Scrutiny for Sexual Orientation and Transgender Classifications, 89 Tenn. L. Rev. 483 (2022).