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COURTLY OBSERVATIONS: Whither Bostock?
COURTLY OBSERVATIONS
Whither Bostock?
By Erwin Chemerinsky
on Jan 15, 2026
(Jonathan Newton/The Washington Post via Getty Images)
Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.
What will be the fate of Bostock v. Clayton County, Georgia, the Supreme Court’s 2020 landmark ruling protecting gay, lesbian, and transgender individuals from employment discrimination? Over the last year, the court has failed to follow the logic of Bostock in upholding discrimination against transgender individuals. And at the oral arguments on Jan. 13, in two cases involving state laws barring transgender girls and women from participating in sports that correspond to their gender identity, the oral arguments gave the strong sense that a majority of the justices are likely to uphold the state laws, making even more salient the question of what will be left of Bostock.
Bostock v. Clayton County, Georgia
In Bostock, the Supreme Court ruled, 6-3, that Title VII’s prohibition of employment discrimination “because of sex” protects gay, lesbian, and transgender individuals. Justice Neil Gorsuch wrote for the court, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
Actually, there were three cases before the court, although all were decided in one opinion. Bostock and Altitude Express v. Zarda involved men who were fired for being gay. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission involved Aimee Stephens, a funeral home director, who was fired for being a transgender woman.
The court’s holding was clear and emphatic. It declared: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize a necessary consequence of that legislative choice: An employer who fires an employee merely for being gay or transgender defies the law.”
{snip}
Whither Bostock?
By Erwin Chemerinsky
on Jan 15, 2026
(Jonathan Newton/The Washington Post via Getty Images)
Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.
What will be the fate of Bostock v. Clayton County, Georgia, the Supreme Court’s 2020 landmark ruling protecting gay, lesbian, and transgender individuals from employment discrimination? Over the last year, the court has failed to follow the logic of Bostock in upholding discrimination against transgender individuals. And at the oral arguments on Jan. 13, in two cases involving state laws barring transgender girls and women from participating in sports that correspond to their gender identity, the oral arguments gave the strong sense that a majority of the justices are likely to uphold the state laws, making even more salient the question of what will be left of Bostock.
Bostock v. Clayton County, Georgia
In Bostock, the Supreme Court ruled, 6-3, that Title VII’s prohibition of employment discrimination “because of sex” protects gay, lesbian, and transgender individuals. Justice Neil Gorsuch wrote for the court, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.
Actually, there were three cases before the court, although all were decided in one opinion. Bostock and Altitude Express v. Zarda involved men who were fired for being gay. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission involved Aimee Stephens, a funeral home director, who was fired for being a transgender woman.
The court’s holding was clear and emphatic. It declared: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize a necessary consequence of that legislative choice: An employer who fires an employee merely for being gay or transgender defies the law.”
{snip}