The Shower's Return: An Essay on the LGBT Title VII Sex Discrimination Cases

“The Shower’s Return” takes a close look at the litigation leading up to the U.S. Supreme Court’s landmark decision in Bostock v. Clayton County, Georgia, holding that lesbian women, gay men, and trans people are legally entitled to the sex discrimination protections afforded by Title VII of the 1964 Civil Rights Act. Written before the Supreme Court’s ruling in Bostock, the article was first published as a six-part serialized essay in the Ohio State Law Journal Online over the summer of 2020. “The Shower’s Return” documents—for the historical record and for the cultural archive—how lawyers and other interested parties argued about LGBT rights under Title VII at the Supreme Court. Despite decades of legal victories for LGBT rights at the Supreme Court, including the right-to-marry decision in Obergefell v. Hodges, anti-LGBT forces in the cases that Bostock collects did not simply ground their arguments in standard rule-of-law conventions like logic and reason. Instead, these advocates at times reached for, and drew on, elements within the U.S. cultural archive that continue to underwrite representations of LGBT people and LGBT rights as portents of gender and sexual deviance run amok. In the context of the wider Bostock litigation, these representations persistently circled around imaginary events transpiring in showers and locker rooms—sites that have historically played a distinctive role in struggles for lesbian and gay equality. Part of what made these litigation strategies so striking was how they revealed an active belief that anti-gay, anti-trans, and, ultimately, sexist claim-making would find a receptive audience at the U.S. Supreme Court in the first major LGBT rights development after Justice Anthony Kennedy’s retirement. The reappearance of florid anti-LGBT fantasies in the litigation that eventuated in Bostock hearkens back to cultural fantasies of an earlier day, obviously not entirely gone. The reappearance of these fantasies in the Bostock litigation warranted attention in its own right, not least as a way of marking the possibility that these fantasies might have prevailed. At the same time, the persistence of old, but still vibrant anti-LGBT delusions shows how legal battles for LGBT rights—despite their recent advances—remain tightly bound up with the domain of imagination and unreason. Happily, none of the Bostock opinions embraced the tawdriest forms of anti-LGBT representation offered to the Court. Nevertheless, and alarmingly, at least one of the dissents held some space for them in a highly tamped-down form. The majority opinion, otherwise brimming with pro-lesbian, pro-gay, and pro-trans confidence, declined to tackle the anti-LGBT cultural fantasies head on. Formally and practically deferring some of these arguments, the Bostock majority opinion may condemn them in silence as beneath the dignity of the Court’s recognition, but in ways that could drive their return at some future date. If and when that happens, the Court will have occasion again, and reason, to put them fully and finally to rest—if it can. The prospect of the future return of the sorts of fantasies that powered some anti-LGBT positions in Bostock extends beyond cases involving LGBT rights. This is because the cultural fantasies in play in the Bostock litigation are, for all their anti-LGBT specificities, fundamentally anti-“other” in ways that make them recognizable for their protean qualities and tendencies toward periodic—if not quite eternal—recurrence. (Though who knows?) Either way, the bid in these pages, which presents the serialized essay in its original format, is that the full, wide future of LGBT rights and freedoms will be through—and not around—the transphobic, homophobic, and sexist fantasies of what transpires in showers and locker rooms, spaces where naked bodies intermix both in social reality and the social imagination. If the good news is that anti-LGBT cultural fantasies did not carry the day in Bostock, the reality remains that they must still be confronted in their various guises if anti-LGBT discrimination is ever to be overcome. The hard work that this involves will take place, in part, inside courtrooms, as Bostock suggests, but it must also take place outside of them, in ways both large and small.