I am overdue for preparing an analysis of the legal landscape of this stuff, at least in the U.S. It’s a Herculean task though. The Bostock majority opinion which became federal law in 2020 absolutely did not prohibit employment discrimination based on “gender identity.” It held that “because of . . . sex” in Title VII necessarily encompasses “sexual orientation” and “transgender status.” It did not even mention “gender identity.” “Gender identity” was only mentioned by Justice Alito in passing in his dissent.

The majority opinion did not define “transgender status.” Justice Gorsuch and his clerks were made more than aware of the concept of “gender identity” and it was specifically not included in the opinion and a majority of justices signed on to that opinion when they could have written concurring opinions if they wanted to recognize “gender identity.” They specifically chose not to. It follows that “transgender status” does not mean “gender identity.”

Not to mention the opinion took care to recognize the steps that plaintiff Aimee Stephens (MtF) took to transition. Hardly a matter of simple self-identification without anything more.