After the 1973 decision Roe v. Wade, a crisis of meaning emerged in opinions of the United States Supreme Court dealing with reproduction and sex. The law became less intelligible as questions of truth and justice were understood and resolved from differing perspectives. The recent decision Bostock v. Clayton County typifies this crisis in both its reasoning and its judgment. In Bostock as in other cases since Roe, psychological and psychiatric concepts mingle with legal ones. An examination of the interplay of these elements can illuminate the problem and may suggest ways to move beyond it.
Few Supreme Court opinions have provoked the firestorm of criticism Bostock did. On June 15, 2020, the Court ruled that Title VII of the 1964 federal Civil Rights law prohibiting “sex” discrimination in employment applies as well to homosexual orientation and transgender status. Justice Neil Gorsuch wrote the opinion for a majority that included Chief Justice John Roberts. Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh dissented.