THE NAME OF THE GAME IS THE FRAME
Yesterday’s historic decision by the United States Supreme Court in Bostock v. Clayton County is welcome news to supporters of LGBTQ rights everywhere. I cannot even imagine the joy members of that community must be feeling and I am thrilled for them.
But for me there is another really interesting element to the case and that is the way Mr. Bostock’s lawyers framed the issue. Lawyers constantly decide how to frame an issue. Often, the facts will guide that decision. If the argument on liability is weak, for example, the proper “frame” is to argue over damages.
Framing is the way lawyers urge judges to view an issue. By placing the “frame” in a way that directs a judge’s eye to a particular point of view, a good advocate is that much more persuasive. Sometimes a lawyer decides to be pragmatic. In a time when “separate but equal” was the law of the land, Thurgood Marshall (before he joined the Supreme Court) argued a number of segregation cases. But rather than focus his argument on the underlying absurdity of the separate but equal doctrine, he would establish that in the cases he argued the facilities were as a matter of fact, not in any way equal. This was a way to win individual cases, but the cumulative effect would ultimately lead to the Brown v. Board of Education ruling that “separate but equal” is inherently discriminatory.
The lawyers in Bostock no doubt had to make a framing decision. Clayton County argued that in passing the Civil Rights Act in 1964, Congress never intended this result. And Bostock may have chosen to argue that point, but in all likelihood, Clayton County was right. 1964 was a very different time. So the Bostock lawyers essentially ignored that point and focused instead not so much on what Congress meant, but on what it actually said. And that was a wise decision.
The Act is pretty straightforward. It makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” Bostock argued that an employer who discriminates against a gay or transgender employee inherently does so on the basis of sex.
Bostock illustrated this point quite simply. Two employees are both attracted to men. One of the employees is a woman and one is a man. If the employer discriminates against homosexuals, the man who is attracted to men suffers because of his sex. If he were a woman there would be no consequence. The analysis for transgender employees is the same.
I suppose there are people who disagree with the decision (three justices – Alito, Thomas and Kavanaugh dissented) but there really should be little dissent about the skillful lawyering.