On Monday 15 June, the predominantly conservative United Sates Supreme Court surprised the world with a ground-breaking decision recognising that discrimination against homosexuals and transsexuals violated the prohibition against sex discrimination in the seminal 1964 Civil Rights Act. The essential logic of Bostock was that, although these grounds were not recognised in the Act, where such treatment involved an additional factor, such as sex, there was liability. Thus, the act of dismissing a worker because they were gay, or transsexual, also contained an element of ‘sex’: a man being attracted to men, or becoming a woman, involved factors of sex, as well as sexual orientation or gender identity, as the case may be.

There were in fact three cases before the Supreme Court. In the first, Clayton County dismissed Bostock for conduct “unbecoming” a county employee shortly after he began participating in a gay recreational softball league. In the second, an employee was dismissed after he mentioned being gay. In the third, an employee who presented as male when recruited, was dismissed after she informed her employer she planned to “live and work full-time as a woman.

The Legal-Techy Stuff

The decision was made possible by the American approach to direct discrimination, which focusses more on a discriminatory motive. By contrast, the UK and EU’s approach to direct discrimination mandates applying a comparative analysis, according to which a claim would succeed only if the discriminatory conduct is found to be less favourable.

Before dedicated sexual orientation legislation came into force in the UK in 2003 (EU Directive 2000/78/EC and The Employment Equality (Sexual Orientation) Regulations 2003) legal actions such as Bostock failed. For instance, where, a man was dismissed for having a same-sex relationship, the comparator used by the courts would be a woman in a same-sex relationship (Smith v Gardner Merchant, 1998, CA, IRLR 510); Case C-249/96 Grant v South West Trains). Likewise, where men and women would have both been the target of the same homophobic abuse, the ‘equally bad’ treatment test meant that neither men nor women would be considered to having been treated less favourably than each other (McDonald v Advocate General of Scotland, 2003, HL). Only if the treatment were also found to be sex-specific could a claim succeed. For example, abusive statements such as, ‘men like you spread AIDS and diseases’ (Smith v Gardner Merchant), or where a club would admit homosexual women but not men.

That said, there are examples of the strict comparator rule being recently relaxed in the UK and EU case law (Chief Constable of Norfolk v Coffey, 2019, CA; Case C-83/14 CHEZ Razpredelenie Bulgaria). This gives courts a little more leeway to develop the law, especially where comparisons prove difficult. The most obvious example is perceived discrimination, where the defendant, wrongly thinking that a person has a protected characteristic, treats him badly based on that mistake. This could be mistaking a turbaned Sikh man for a Muslim, for instance. As the victim has no relevant protected characteristic (in this example, not being a Muslim), it is pointless to suppose a comparator without the relevant protected characteristic (as one should for an orthodox comparison). As seen in Bostock, this loosening of the comparator rule enables the courts to adapt for new and seemingly meritorious cases.

The Controversial Stuff

The Court’s reasoning is canny, making it difficult for Congress to reverse. If Congress reversed the logic, reducing successful claims to where the only cause of the treatment was sex (or race, or religion), many meritorious cases would be lost. This would be where, say, an employer rejects an applicant because she is black and had a poor employment record (see Owen & Briggs v James, CA [1982] ICR 618). An alternative method was deployed in the Civil Rights Act of 1991. Congress reversed part of Wards Cove v Atonio (1989, Sup Ct) by enacting that the matter ‘shall be in accordance with the law as it existed on 4 June 1989’ (the day before the judgment was given). But this would be unlikely to work in Bostock’s case because the Supreme Court had not previously ruled on the matter and the courts below were divided on it.

It is noticeable that the EU and UK courts were, until recently, reluctant to advance the law regarding discrimination on grounds of sexual orientation without dedicated legislation. In other words, unelected judges waited for the signal from elected legislators. While most liberal-minded people of the world would welcome the United States joining the late 20th century (let alone 21st) on these matters, it should not be forgotten that this decision was made by judges and not the people’s elected representatives in Congress, who have steadfastly refused to enact legislation outlawing discrimination on the grounds of sexual orientation and gender reassignment. There may be uproar from sections of Congress over Bostock, but as mentioned before, it might prove too difficult to reverse it.

Michael Connolly is Reader in Law at Portsmouth Law School, University of Portsmouth.