Intersectionality Goes to Court

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.

Intersectionality

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

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.

Intersectional Textualism

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.

The Friends of Bostock

In his dissent, Alito highlighted three amici in particular that conceptualized the relationship between sex, sexual orientation, and gender identity like Gorsuch and the majority. Among those briefs referenced is one by the Southern Poverty Law Center (SPLC). The SPLC’s brief introduced to the court something called “intersection discrimination.” A paragraph from the brief, from the pages referenced by Alito, is worth quoting in full.

LGBT women and people of color are susceptible to discrimination on multiple grounds—what is known as ‘intersectional’ discrimination. Intersectionality recognizes that when two bases for discrimination exist, they cannot be neatly reduced to distinct components. The combined effects of, for example, race and gender discrimination operate to marginalize individuals in ways different than that experienced by a single race or gender. See, e.g., Lam v. Univ. of Hawai′i, 40 F.3d 1551, 1562 (9th Cir. 1994) (explaining that ‘the attempt to bisect a person’s identity at the intersection of race and gender often distorts or ignores the particular nature of their experiences’).

Within the exact portion of Lam v. University of Hawai’i cited by the SPLC brief, the Ninth Circuit invoked Crenshaw’s “Demarginalizing the Intersection of Race and Sex.” (The amicus brief from the ACLU in the Zarda case at the Second Circuit also cited Lam to this end.) In the paragraph prior to the excerpt above, the SPLC brief cited an article from the Duke Journal of Gender, Law, and Policy by Alexander M. Nourafshan on “IntraLGBT Intersectional Invisibility and the Marginalization of Minority Subclasses in Antidiscrimination Law.” (Of the many wild claims made by Nourafshan, the section in focus, inter alia, urges “legislating intersectionality as part of employment discrimination reform.”) Nourafshan points to Jefferies v. Harris City Community Action Association (5th Cir. 1980), which entertained an action based on an intersectional discrimination claim, as an example wherein a court took the “first step towards recognizing intersectionality,” in that it supplanted black males and white females as the exemplars of anti-black racism and misogyny, respectively. In short order, cases in the Tenth and Sixth Circuits mirrored Jefferies, and Lam is considered the high watermark for intersectional Title VII cases.

But more was needed, mainly because Jefferies was proving ineffectual unto change at scale. As Kathryn Abrams has suggested, “Jefferies itself has not proved a durable precedent in securing judicial recognition of intersectional claims.” Courts like the Fifth Circuit in Jeffries had taken a necessary but insufficient first step, stopping short of “articulating a broad understanding of actionable claims of intersectional discrimination under Title VII, providing [instead] only a limited intersectional cause of action for certain minority subclasses.” The point is that theorists like Nourafshan have been waiting for an opportunity like Bostock which, by acknowledging intersectional logic at the highest court have opened the floodgate for more expansive claims.

Like the SPLC, the amicus brief from the Lawyers’ Committee for Civil Rights Under Law, which is also singled out by Alito, cites to Lam to support the assertion that “People who identify as members of multiple categories subject to discrimination tend to be the most visible in the workplace and elsewhere.” The same brief then quotes from Judith Winston’s article “Mirror, Mirror on the Wall: Title VII, Section 1981, and the Intersection of Race and Gender in the Civil Rights Act of 1990,” which was also cited by the Lam case, and references another article on intersectionality and Title VII. Later, the brief quotes from Pauli Murray & Mary O. Eastwood, “Jane Crow and the Law: Sex Discrimination and Title VII.” (The concept of “Jane Crow” is considered a precursor idea to intersectionality, as is Elaine W. Shoben’s “Compound Discrimination,” and the work of Judy Ellis.)

Additionally, an amicus brief from Scholars who study the LGB population featured intersectional arguments and references as well. Arguing that antigay discrimination contains “the intersection of multiple forms of prejudice,” the brief drew on an article by Julie Konik and Lilia Cortina published in Social Justice Research. Therein, Konik and Cortina argue that sexual harassment functions to “enforce traditional gender roles,” an alleged fact that can only be truly studied and addressed via an intersectional model of harassment. The authors explicitly build this model upon Judith Butler’s Gender Trouble: Feminism and the Subversion of Identity (1990) and Crenshaw’s “Mapping the Margins” article. The same brief argued that sexual orientation was not merely connected to sex but simply a “function of sex.” In support of this claim, the brief cited a well-known (and lengthy) article by the Mary Anne Case, a theorist of feminist jurisprudence.

Another amicus brief submitted by Anti-Discrimination Scholars referenced articles by Jessica A. Clarke (who helped author the brief) and Ann C. McGinely, both of which feature intersectional theories of discrimination law, as well as the same article from Case included in the LGB scholars brief. (Of note too is the fact that the Anti-Discrimination scholars brief offered Oliver Wendell Holmes Jr.’s famous line on statutory interpretation, “We do not inquire what the legislature meant; we ask only what the statute means.” Whether Gorsuch was thinking of Holmes or not when he wrote that “Only the written word is the law,” will never be known but there is much affinity between the two, an affinity that the amici doubtless hoped for.)

Lower Courts

Alito also realized that it wasn’t the amici alone that influenced the Bostock majority. Intersectionality has been making inroads into lower courts for some time now, especially in relevant Title VII cases. Mentioned already is the Jefferies case—the first major step in codifying intersectional theory in American case law. Much has happened since 1980, however. And ever since Lam, critical race scholars have set about trying to capitalize off its recognition of intersectionality and Crenshaw’s work (see below). Yvette Pappoe designated Lam the model decision upon which an intersectional framework could be built. But it was the cases immediately preceding—and feeding into—Bostock that the dissenting justice had in mind, viz., Hively v. Ivy Tech (7th Cir. 2018) and Zarda v. Altitude Express, Inc. (2nd Cir. 2018).

As recounted above, Zarda held that sexual orientation discrimination is a form of sex discrimination because it is motivated by an employer’s stance (i.e., stereotype) on a romantic association between particular sexes and thus is tied to an employees’ sex. For our purposes here, it is worth pointing out that in a footnote, the Zarda opinion looked to Crenshaw to back up its conception of the inseparability (and intersectionality) of sex and sexual orientation:

[B]oth the civil rights and the women’s movements have persistently overlooked the intersectional existence of black women and other women of color. See Kimberlé Crenshaw, Mapping the Margins : Intersectionality, Identity Politics, and Violence Against Women of Color, 43 Stanford L. Rev. 1241, 1242–43 & n.3 (1991).

As a lower court later observed, Zarda signaled a new consensus: “The consensus is clear. Where comments would not have been made but for one’s sex and sexual orientation, they fall in the wide ambit of Title VII.” O’Toole v. Cnty. of Orange (S.D.N.Y. Mar. 8, 2019). (Even before Bostock was decided, another district court decision, Lovell v. Staten (S.D.N.Y. Sep. 23, 2019), directed the reader to Zarda for its citation to “Mapping the Margins.”) Hively, the reasoning of which was followed by Zarda, was at the forefront of this emerging consensus, as Alito recognized. Therein, the Seventh Circuit had suggested that “It would require considerable calisthenics to remove ‘sex’ from ‘sexual orientation,’” thereby establishing the inseparability of the two.

The grim fact of Bostock is that, therein, the method of textualism was made to serve the logic of intersectionality as advocated by the amici briefs and according to the new consensus amongst the lower courts. The arguments of the amici and lower courts that, per Alito, Gorsuch clearly found compelling were nothing more than intersectionality dressed up in textualist garb—or as Alito himself put it, a “pirate ship” sailing “under a textualist flag.” During the oral arguments of Bostock, it became clear that the petitioners had tailored their rather novel arguments to Gorsuch’s textualist sensibilities. (More than one of the briefs made sure to include Antonin Scalia in the table of authorities.)

Bostock has not given the intersectionalists everything they want. Gorsuch more or less expanded the possibilities of sex-plus claims, wherein intersectionality has found solace over the past thirty years or so. This will not totally satisfy the ambitions of intersectionality advocates; arguably Bostock still designated one identity trait the lead and subordinated others. But it gestured to the inseparability of multifaceted identities by tacking sexual orientation and gender identity onto “sex.”

And whereas prior to Bostock, most attempted intersectional claims were asserted by women of color, now intersectional claims related to gender identity and sexual orientation should be expected—or, probably, all of the above combined. The recognition by the Bostock majority of the intricate connectivity of various forms of identity was a key advance for intersectionality’s influence; one small step for the court but one giant leap for intersectionality—though one article in the Boston Review dubbed Bostock an instance of mere “transactional equality,” whereas Black Lives Matter represents a bid for “infrastructural equality.” But as advocates of an intersectional approach to Title VII have argued, an expansive sex-plus rationale is a starting point, but not the finish line. For that matter, Bostock was not the starting line either.

Before Bostock

Alluded to already is that the influence of Crenshaw stretches back even further than Zarda, and beyond Jefferies and Lam—both of which departed markedly from DeGraffenreid and its progeny. To date, at least 15 cases featured the word “intersectionality” explicitly—this does not account for other cases that have employed intersectional logic, like Bostock.

Serena Mayeri claims that the precursors to “what we now call intersectionally crucially shaped Title VII from its inception,” and was especially influential, via feminist activism, in getting the statute’s “sex” amendment enacted. And though courts were initially reluctant to intersectionality as codified as a category of critical legal analysis by Crenshaw, by 1998 it had already appeared in a Ninth Circuit case (i.e., Lam). Less than a decade later, the Eleventh Circuit, along federal district courts from the Southern District of New York, the District of Minnesota, the Western District of Washington, the Southern District of Mississippi had all explicitly invoked “intersectionality.” Since 2015, district courts in Connecticut, Wisconsin, South Carolina, and Massachusetts have referenced the term; the Southern District of New York and District of Minnesota have done so multiple times over. The Massachusetts Superior Court might be the first top state court to do so, and has repeatedly recognized intersectional or compound discrimination claims—state courts in Washington and Iowa have also cited Crenshaw and other literature on intersectionality and Title VII.

The Southern District of New York has utilized intersectionality more than any other federal district. In Curley v. St. John’s University (S.D.N.Y. 1998), it became the first to do so—though the Western District of Wisconsin, in 1992, was the first to cite Crenshaw’s work—and entertained a theory of “intra-group discrimination” because “group membership is not a simply binary variable” because of “multi-group intersectionality.” More recently, in Anderson v. N.Y.C. Health & Hospitals Corporation (S.D.N.Y. 2020), the Southern District got more explicit. In Anderson, the court boldly read an intersectional theory of discrimination in to the earlier Second Circuit case, Gorzynski v. Jet Blue Airways (2nd Cir. 2010), which had briefly mentioned both Jefferies and Lam. The magistrate judge in Anderson accepted and endorsed the plaintiff’s “intersectional discrimination” claim, and credited Crenshaw’s work for the concept (as if the drafters of Title VII had her in mind at time of drafting). The judge explained,

A plaintiff states an intersectional discrimination claim when he or she alleges discrimination on the basis of two protected characteristics (such as sex and race) and shows that the discrimination he or she experienced is attributable, at least in part, to the combination of those protected characteristics.

Here the judge cited, inter alia, a case from the District of Connecticut that equivocated between “intersectional” and “race plus” claims, and added a reference to an article from 2011 that outlined an intersectional theory for equal employment litigation.

Maybe most surprisingly, the Anderson court effectively and unilaterally constructed this intersectional theory of the case on behalf of the plaintiff. Although the plaintiff had not expressly asserted “that he intended to pursue a theory of intersectional discrimination” in his complaint, he was nevertheless “able to assert this theory now because [his complaint] includes all of his individual bases for discrimination.” What’s more, the court made clear that a plaintiff was not required to choose between theories of the case. The court, pro bono, would analyze any relevant claims on both an individual and intersectional basis.

New York doesn’t have all the intersectional fun, though. Jeffers v. Thompson (D. Md. 2003) asserted that “some characteristics, such as race, color, and national origin, often fuse inextricably… they indivisibly intermingle… Title VII prohibits employment discrimination based on any of the named characteristics, whether individually or in combination.” On this point, the District of Maryland referenced an article by Peggie Smith from 1991 that drew on bell hooks and the Combahee River Collective statement to construct an early intersectional approach (i.e., “interactive” race and gender discrimination) to Title VII. In 2012, the District of Maryland doubled down on its endorsement of intersectionality stating, “The Court joins this evolving body of authority and concludes that intersectional claims based on sex and race are generally cognizable under Title VII.” A District of Wisconsin case followed Maryland’s lead in 2010, wherein it cited to the Jeffers case, EEOC guidance and a litany of law review articles positing theories of intersectional discrimination. And as noted above, the Ninth Circuit, in Lam, was the first court at that level to mention intersectionality. In 2002, it did so again, and again cited Crenshaw as persuasive.

All of this, however, is not meant to imply that intersectional discrimination claims have always been successful. In Abraham v. Board of Regents of the University of Wisconsin (E.D. Wis. 2016), the district court rejected an intersectional discrimination argument (which analogized to Title VII) under the Family and Medical Leave Act. But if the above review of cases suggests anything, its only a matter of time before such arguments start convincing courts outside of the Title VII context—indeed, they already have. Paul Smith, writing for the New York Times just after Bostock was decided, was right to say that “Any law… that says you can’t discriminate because of sex is going to have a reckoning with this ruling.”

For example, a 2015 case from the District of Minnesota denied a motion to dismiss a transgender plaintiff’s discrimination claim under the Affordable Care Act and state human rights act. Notably, the ACA incorporates the non-discrimination language of Titles VI and IX of the Civil Rights Act of 1964, but not Title VII. The court relied on guidance from the Department of Health and Human Services to include gender identity in the protections of the ACA. It then held that the same standards of proof should apply for discriminations claims—whether drawn from Title VI or Title IX—of any kind, regardless of protected class status, under the ACA because otherwise “courts would have no guidance about what standard to apply for a… plaintiff bringing an intersectional discrimination claim.” In other words, the court’s parsing of the ACA was dictated, in part, by concern for the integrity of potential intersectional claims. (The court cited Cheryl Harris’ famous Harvard Law Review article, “Whiteness As Property,” which invokes Crenshaw often, for its definition of intersectionality.)

And whilst not entertaining an intersectional discrimination claim, a recent employment discrimination case from the District of Oregon took special note—given the background facts relating to a Native American professor who was terminated after being accused of sexual harassment—of a law review article, “Title IX Narratives, Intersectionality, and Male-Based Conceptions of Racism.”

After Bostock

The summer heat had not relented before the legacy of Bostock began to play out. Giselle Donnelly wrote at the time in the American Interest, “Progressives are chomping at the bit to bring new cases—’textualism’ in the service of intersectionality.” Barely a month after Gorsuch’s ink had dried, Frappied v. Affinity Gaming Black Hawk (10th Cir. 2020), which became the first federal appellate court to acknowledge sex-plus-age Title VII claims and relied heavily on Bostock to do so.

In Frappied, the Tenth Circuit—where Gorsuch sat prior to his appointment to the Supreme Court—overturned the lower court’s dismissal of the plaintiffs’ Title VII claim because said lower court erroneously did not recognize sex-plus-age claims as statutorily cognizable. The plaintiffs/appellants were female casino employees over 40 years old who were terminated by their employer. The female employees brought a disparate impact and disparate treatment claim under Title VII on the basis of sex-plus-age, and a separate age-based claim under the Age Discrimination in Employment Act (ADEA). The claim was that Affinity discriminated particularly against women over forty.

Notably, Title VII does not cover age. The Tenth acknowledged this fact but nevertheless held that Title VII prohibits sex-plus discrimination even when the “plus” characteristic is not itself protected by Title VII. The court also recognized intersectional claims that combine two traits covered by Title VII (e.g., sex plus race) as legitimate. Prior to Bostock, Tenth Circuit precedent would have required that “a female sex-plus plaintiff… show that her employer treated her unfavorably relative to a male employee who also shares the ‘plus-‘ characteristic.” The design of this standard was to prevent every plaintiff from mustering a cognizable claim via the creation of their own personalized protected class, of which DeGrafenreid had warned.

Post-Bostock, however, the court determined that the same plaintiff no longer needs prove that her subclass of women was unfavorably treated compared to a corresponding subclass of men. Thenceforth, all she must now do is show that “she would not have been terminated if she had been a man.” That is, but for her sex. If sex is in play, then the subclass is covered regardless of what the plus characteristic may be—and yet, the plus characteristic is obviously operative.

No other circuit court could be cited to back this Bostock-induced shift, but the Frappied court did appeal to the EEOC guidance which recognizes “intersectional discrimination.” (The EEOC filed an amicus brief in Frappied arguing for reversal of the lower court, and has been advocating for an intersectional expansion of Title VII for some time.)

To further flesh out its reason for recognizing sex-plus-age claims under Title VII, the court found that “older women are subjected to unique discrimination resulting from sex stereotypes associated with their status as older women.” The “research” cited to support this claim included Jourdan Day, “Closing the Loophole-Why Intersectional Claims Are Needed to Address Discrimination Against Older Women,” an important and recent contribution to intersectionality and Title VII scholarship. The particular assertion from Day that the court found compelling was that “The intersectionality of two immutable characteristics is not the same as simply possessing two separate characteristics. While an individual can be both ‘old’ and be a ‘woman,’ being an ‘older woman’ is substantively different.”

In the subsequent paragraph in the Frappied opinion, Crenshaw was cited directly:

Recognizing claims for “intersectional” discrimination best effectuates congressional intent to prohibit discrimination based on stereotypes. See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1989 U. Chi. Legal F. 139, 150 (1989) (identifying mistaken assumption that “a discriminator treats all people within a race or sex category similarly”). A failure to recognize intersectional discrimination “obscures claims that cannot be understood as resulting from discrete sources of discrimination.

The Frappied court also cited to Jefferies as support for intersectional claims and stated baldly that intersectional analysis simply is consistent with congressional intent in passing Title VII. “Intersectional discrimination against older women is a form of discrimination based on sex stereotypes that Title VII was intended to prohibit. And discrimination against older women that does not target older men is a form of sex discrimination.”

Frappied demonstrates that Bostock definitively and radically altered the possibilities for Title VII litigation and may act as a new compass for all claims brought under the Civil Rights Act of 1964. Put another way, it shows how much of a boon Bostock was for intersectional conceptions of discrimination. Other plaintiffs besides the casino employees in Frappied have capitalized off Bostock as well, and outside the confines of employment discrimination.

For example, Hammons v. University of Maryland Health System (D. Md. 2020) is an ongoing case in Maryland wherein a transgender man is suing a Catholic hospital for its unwillingness to perform a hysterectomy on the plaintiff’s otherwise healthy uterus as part of gender affirming surgery. The plaintiff, whose procedure was canceled due to the coronavirus after the hospital deemed it non-essential, claims he is similarly situated to those who have continued to receive hysterectomies for uterine cancer. Although the grounds for the suit are alleged violations of the Fourteenth Amendment and anti-discrimination provisions of the Affordable Care Act, the complaint sites Bostock for support, employing its ruling analogically.

The national transgender debate has been typified by the bathroom question. Bostock has influenced that as well. A divided panel in Adams v. School Board of St. John’s County (11th Cir. 2020) found that, considering Bostock, Title IX requires schools to allow transgender boys to use the boys’ bathroom. The defendant/appellant school’s existing policy singled out transgender students—and forced them to shoulder a special burden because of sexual expression and gender codes—therefore, sex was a but for cause of discrimination. When the dissent called out the majority for not clearly defining “sex” the response was: “[W]e follow the lead of the Supreme Court in Bostock, which found it unnecessary to perform that analysis as to Title VII.” Of course, Gorsuch had insisted that Bostock was narrow and not ruling on the transgender-bathroom debate, but Alito (and others) rightly discerned that Bostock‘s reach would be long.

Likewise, the circuit court in the high-profile case, Grimm v. Gloucester (4th Cir. 2020), joined the “growing consensus of courts” holding that Title IX prohibits school bathroom policies that require transgender students to use the bathroom that corresponds to their gender assigned at birth. The Fourth Circuit in Grimm said it had “little difficulty” in deciding the issue subsequent to the ruling in Bostock. Less noticed was the district court decision in Idaho blocking a law that barred transgender women from joining women’s sports teams whilst they were in the process of transitioning.

Conclusion

The list does, and will, go on. Bostock‘s legacy will be storied, and along with it, Crenshaw’s. She has not only distinguished herself from her CRT cohort but from all her contemporaries in legal academia. Perhaps no other academic has so directly and meaningfully affected the direction of civil rights law over the past decade or so. Contrary to what some erroneously think, intersectionality’s purpose was never to merely interpret the world, but rather to change it.

 

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