Guha Krishnamurthi (University of Oklahoma College of Law) & Peter Salib (University of Houston Law Center) have posted Bostock and Conceptual Causation (YALE J. REG. Notice & Comment (July 22, 2020)) on SSRN. Here is the abstract:
Was Bostock properly decided, as a matter of textualist jurisprudence? The majority and dissent disagreed. We argue that the case can be understood as properly decided under textualist principles and that the dispute between the majority and dissent was really a dispute about textual meaning. Title VII outlaws discrimination "because of ... sex." We develop an interpretation of "because of" that comports with ordinary intuitions across a variety of discrimination cases. Our interpretation also justifies the Bostock majority's holding that discrimination on the basis of sexual orientation is discrimination "because of ... sex."
