Redefining Sex: A Textualist Approach to Incorporating Sexual Orientation and Gender Identity into the Constitutional Definition of Sex

Abstract

The 2020 Supreme Court decision in Bostock v. Clayton County, Georgia, was a landmark victory for LGBTQ+ individuals, holding that Title VII’s prohibition on sex discrimination included discrimination on the basis of sexual orientation and gender identity as well. Justice Neil Gorsuch, writing for the majority, came to this conclusion from simply reading the language of the statute—by looking at the strict language and plain meaning of the text, it could be inferred that “sex” according to Title VII inherently included sexual orientation and gender identity, and therefore discrimination on those bases constituted sex discrimination under Title VII. This new meaning of “sex,” though, created two distinct definitions of the word: one that included sexual orientation and one that did not. In this Comment, I argue that, in applying the same textualist reasoning that Justice Gorsuch applied in Bostock, sexual orientation and gender identity can also be inferred into the meaning of “sex” according to the U.S. Constitution. Expanding the constitutional definition of “sex” to incorporate sexual orientation and gender identity would change the way LGBTQ+ rights are analyzed under the equal protection doctrine. This reworking of “sex” under the Fourteenth Amendment then would lead classifications based on sexual orientation and gender identity to be analyzed as sex classifications, which are typically reviewed under the heightened scrutiny standard. In today’s climate, a reevaluation of sexual orientation and gender identity as extensions of “sex” is necessary. Their inclusion in the discussion of sex-based discrimination for Title VII claims must trigger a similar discussion for sex-based classifications challengeable under the Fourteenth Amendment. Doing so gives substantive strength to fundamental rights of citizens, and it empowers LGBTQ+ plaintiffs to have greater chances of success in court by forcing the courts to examine their discrimination claims under a more stringent standard of review.