Is the Tennessee "understanding" an attempt to get DOJ to disavow Bostock?

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May 10, 2023·edited May 10, 2023Author

Not disavow, no. Bostock is specifically about Title VII of the Civil Rights Act, not equal protection. The Equal Protection Clause is really only discussed in Kavanaugh's dissent.

If anything, even applying the reasoning of Bostock — gender identity discrimination as an aspect of sex discrimination — to Equal Protection Clause claims would not be barred by Tennessee's "understanding" here. It would be separate, standalone gender identity claims under the Equal Protection Clause that would not be able to be brought.

Of course, Tennessee could just be being sloppy here and they could be attempting to make what is, in effect, a pre-Bostock (pre-Macy even) argument that only sex stereotyping and not transgender status can be challenged (again, though, those are Title VII cases). We're more than a decade out from that, though (if you go back to Macy), and this "understanding" is nothing more than Tennessee's thoughts, not requiring DOJ to disavow anything.

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