What is sex discrimination? Or, more generally, what is discrimination?
This question has often centered around a few recurring divisions in constitutional and antidiscrimination law. One division is between intentional discrimination and disparate impact theories of liability; another break is between formal equality and substantive equality; another, related divide is between anti-classification theories of equality and anti-subordination theories.
In her timely new article, Sex Discrimination Formalism, Professor Jessica Clarke smartly unpacks the category of “formal equality” and shows that, at different points, it encompasses a family of different theories that sometimes travel together, but not always. Clarke argues that courts applying “formal” approaches to equality are sometimes using “but for” causation, asking whether some protected trait or characteristic is the but-for cause of differential treatment. But courts adopting a “formal” approach to equality sometimes use “anti-classification” theories of equality, asking if a protected trait or characteristic has been used to categorize or sort individuals. Finally, courts might use a “similarly situated” test that examines whether someone has been treated differently than someone who is “similarly situated” to them (but who does not have a particular trait or characteristic).
Clarke points out that Bostock v. Clayton County blended all of these different approaches as it engaged in a formal approach to Title VII. (In Bostock, the Court held that Title VII’s prohibition on discrimination because of sex entailed discrimination on the basis of sexual orientation and gender identity.) That is, Bostock could plausibly maintain that all of the three theories pointed toward the same conclusion. But there are times when the different approaches might yield different results. For pregnancy discrimination, some courts have concluded that sex is a but-for cause of the discrimination. But courts applying a “similarly situated” or “anti-classification” test have rejected arguments that pregnancy discrimination is a kind of sex discrimination.
These differences are not just academic. They help clarify some of what is happening in recent decisions concerning bans on gender-affirming care for individuals—an issue the Supreme Court has been asked to decide. Initially, courts were quick to recognize how “formal” approaches to equality, including the approach embodied in Bostock, would categorize bans on gender-affirming care as a species of sex discrimination. Sex is a but-for cause of the discrimination in those cases in the sense that an individual’s sex assigned at birth contributes to how an individual is treated. That also means the law classifies individuals on the basis of sex, because in order to determine whether an individual may receive certain treatments, someone would need to categorize them on the basis of sex assigned at birth.
But two courts of appeals have recently rejected claims that bans on gender-affirming care constitute sex discrimination. Yet both courts purported to adopt formal theories of equality. Clarke’s article is illuminating on how that might have happened, if courts were selectively toggling back and forth between different genres of formal equality. (Though Bostock pretty clearly suggests the different sub-categories of formal equality would treat bans on gender-affirming care as sex-based discrimination.)
Clarke’s article illuminates courts’ sometimes seemingly mercurial approaches toward formal equality as they assess claims of discrimination. It highlights (yet) another way that courts and lawyers maintain some room to maneuver, and toggle back and forth between different sub-categories of formal equality even when they purport to be just adopting and applying formal equality. It also explains how selecting a sub-category of formal equality can sometimes dictate an outcome in a case. This calls to mind the word of Cary Franklin analyzing another formalist theory (textualism), and describing how that theory has “shadow decision points.”
Clarke avoids the temptation to select one sub-category of formal equality as the “right,” hegemonic conception of formal equality. Instead, she reasonably encourages courts and litigants to consider how different theories operate in the real world, not in some normative vacuum. Yet she recognizes the reasons why courts have, to date, opted for more formal rules when assessing equality claims instead of engaging with sociological factors and substantive values that might counsel in favor of one approach to formal equality rather than another. Perhaps her article will provide them with some tools to dip their toes into those waters going forward.
