Article by Anna M. Fish
Applying the landmark Bostock v. Clayton County decision for the first time, the Fifth Circuit gave a seemingly uncontroversial directive: “a plaintiff claiming transgender discrimination under Bostock must plead and prove just that—discrimination.” However, for transgender plaintiffs, proving employment discrimination based on gender identity is anything but straightforward. This Comment analyzes the dominant role of comparator evidence in Title VII employment discrimination claims. The Comment evaluates the Bostock decision and its impact on transgender plaintiffs alleging employment discrimination. Finally, using pregnancy discrimination as an analogue, the Comment outlines the flaws of the comparator evidence framework when applied to transgender plaintiffs and makes recommendations for change.
About the Author
Anna M. Fish, J.D. candidate 2023, Tulane University Law School; B.A. 2020, Tulane University. I would like to thank Professor Saru Matambanadzo for her valuable guidance throughout the writing process. I would also like to thank the members and staff of the Tulane Law Review for their hard work, without which the publication of this Comment would not be possible. Finally, I am immensely grateful to my family and friends for their constant support and encouragement.
Citation
97 Tul. L. Rev. 261