Publication Date

5-1-2025

Document Type

Article

Organizational Units

Sturm College of Law

Keywords

Employment Law, Employment Discrimination Law, Constitutional Law, Disparate Treatment, Textualism

Abstract

In Bostock v. Clayton County, the Court held that Title VII prohibits discrimination based on sexual orientation or gender identity. This result, the majority claimed, was required by the interpretive theory called textualism. But textualist justices in the dissent vehemently disagreed. This split, and the controversy that has followed it, has had two consequences. First, it added fuel to the ongoing debate about the value of textualism. Second, it opened the door for lower courts to decline to apply Bostock to similar antidiscrimination laws, such as Title IX in education or the Equal Protection Clause (such as the Skrmetti case, in which the Court recently granted certiorari). This Article argues that the problem with Bostock is not textualism. Rather, the problem is ungrounded textualism-a textualism that assumes an unlimited number of ways that judges can frame questions and answer those questions. The Article proposes doctrinal structuralism as a remedy to that problem. Doctrinal structuralism maps the basic structure of an area of the law, such as the area of disparate treatment antidiscrimination law that was at issue in Bostock, and uses that structure to limit the questions that are subject to interpretation in the area, as well as the universe of doctrinal answers from which a court can chose. Such an approach not only reduces judicial discretion, it also illuminates which aspects of a decision such as Bostock are interpretive (and thus subject to different interpretations between laws) and which are logical (and thus applicable to any law that incorporates the same structural choice). Based on this analysis, the Article concludes that Bostock's core conclusion is a logical one, not an interpretive one, and must therefore apply to other laws with structures similar to Title VII. Moreover, even if Bostock's logic was incorrect (which it was), so long as its conclusion can be supported by better logic (it can), then that conclusion should apply across texts. The Article uses doctrinal structuralism in a novel way to undertake three projects. First, it evaluates the reasoning of Bostock, and finds it reaches the right conclusion for the wrong reason. It then demonstrates the applicability of Bostock outside of Title VII. Finally, it highlights the benefits of doctrinal strutcuralism as a partner to interpretive methods such as textualism.

Publication Statement

Copyright is held by the author. User is responsible for all copyright compliance. This article was originally published as Martin Katz, Bostock and the Limits of Textualism: A Doctrinal Structuralist Approach, 66 Wm. & Mary L. Rev. 1389 (2025).

Publication Title

William & Mary Law Review

Volume

66

First Page

1389

Last Page

1454

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