Bostock Response.pdf

The Texas statute criminalizing homosexual sex classifies individuals on the basis of their sex, as it requires the prosecution to prove the defendant's sex, and only men can be guilty. The Supreme Court has established that classifications based on sex require an "exceedingly persuasive justification." Mitchell Berman and Guha Krishnamurthi argue that the statute does not classify individuals on the basis of sex, but rather on the basis of homosexuality, which treats men and women equally. However, this reasoning is flawed, as it ignores the fact that the statute requires proof of the defendant's sex. The Bostock v. Clayton County decision, which held that Title VII prohibits employment discrimination against LGBT people, is correct, as discrimination against gay people is necessarily sex discrimination. Berman and Krishnamurthi's argument relies on their Principle of Conservation in Motivational Analysis, which disregards facts that are not likely to have been among the actor's motivating reasons, but this principle is not relevant in this case.