Aziz Z. Huq Describes the Two Conflicting Visions of Equality Emerging on the American Political Left
Bostock v. BLM
Over the last month a contest between two visions of equality has broken out in U.S. politics that has profound implications for the law.
One vision appears in the Supreme Court’s recent decision in Bostock v. Clayton County, which ruled to extend labor-market discrimination protections to trans and gay employees. At first glance the ruling may seem a cause for celebration. After all, the Court repudiated a longstanding narrow interpretation of Title VII’s rule against “sex” discrimination, conceived by a die-hard segregationist in the House of Representatives in 1964 and read to exclude gay and trans plaintiffs for decades. But the route it takes to that conclusion is itself quite narrow. Violations of Title VII, the majority wrote, are simply a matter of one person’s “intention” to treat “individuals, not groups” less favorably.
Call this the transactional vision of equality. It looks to the granular motives of particular individuals rather than to the large-scale effects of institutions, appealing to a narrow framework of one individual slighting another. In this discriminatory paradigm, inequality results from a culpable offender with a particular state of mind denying a meritorious plaintiff a benefit they are due. The framework of transactional equality, in short, searches for glitches that interfere with an otherwise healthy flow of outcomes for individuals.
The other vision of equality is manifest in the Black Lives Matter (BLM) movement, which during the past several months has precipitated a dramatic shift in U.S. public opinion on police treatment of people of color. Call this the infrastructural model of equality, which challenges institutional and social arrangements beyond the immediate interactions of individuals. Discrete acts of denial and violence instead are treated as symptoms of larger pathologies rooted in the state’s organization and funding. The BLM movement does not explicitly appeal to equality in its messaging; its position is “unapologetically Black,” its platform established in response to “rampant and deliberate violence inflicted on us by the state.” But its call to counter the weight of persisting and historical injustice might well be understood as a fight for the rectification of historical inequality and discrimination. And the force of BLM’s moral vision is powerful not in spite of institutional context, but rather precisely because of it—including, but not limited to, the history of policing in the United States. The argument in Bostock, by contrast, repudiated historical context in favor of a contemporary close reading of the text of Title VII.
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