Bostock v. Clayton County (2020) was one of the few pleasant surprises to come out of the Supreme Court for liberals during the Trump administration.
Authored by Trump appointee Neil Gorsuch and joined by Republican Chief Justice John Roberts, Bostock It is thought that a decade-old federal civil rights law prohibits discrimination in the workplace based on sexual orientation or gender identity. It is written using such broad language that it leaves little doubt that discrimination against LGBTQ people is prohibited in many other contexts, including health care and education.
Nevertheless, two separate appeals court panels — both dominated by Republican judges — recently suggested that Bostock There is nothing to say about discrimination by educational institutions like public schools and universities.
one opinionBy the United States Court of Appeals for the Fifth Circuit, simply ignored Bostock Completely, as if it didn’t exist. another one opinionKen spent just two paragraphs trying to explain its plain language, joined by two Republicans in the Sixth Circuit. Bostock Not applicable to schools.
Now, these two cases are known US Department of Education v. Louisiana And Cardona v. Tennessee — The Supreme Court has its “shadow docket,” a mix of urgent motions and other matters that are often decided on tight deadlines. The two cases could determine whether the justices will hold their own since former President Donald Trump began reshaping the Supreme Court in the image of the Federalist Society. Given whether to enforce a significant pro-LGBTQ rights decision.
Both cases involve one The Biden administration has a fairly comprehensive set of regulations Interpreting Title IX, a law that prohibits sex discrimination in schools that receive federal funding And in both cases extremely messy.
Most of the Biden administration’s Title IX regulations have nothing to do with transgender rights. Among other things, they set certain rights for pregnant students and school employees. They establish that parents and legal guardians can act on behalf of those whose Title IX rights have been violated. And the new regulations define terms like “complainant,” “disciplinary sanction” or “post-secondary education” that often arise in Title IX disputes.
That said, the regulations include three provisions that affect trans students, including one that, according to the Justice Department, requires schools to allow these students to use bathrooms that align with their gender identity. Also adopts regulations Bostock’Definition of “gender” discrimination, including discrimination based on sexual orientation or gender identity.
Red-state plaintiffs Louisiana And Tennessee Don’t challenge any new rules that don’t touch transgender rights. And yet lower courts have struck down the Title IX regulations in their entirety. This alone is an error for interference by the Supreme Court. As held in court Gill v. Whitford (2018), when a court finds a statutory violation, “the remedy must be limited to the insufficiency that actually created the injury the plaintiff has established.”
But even setting aside the overbroadness of the lower court order, the lower court committed another serious error. They struck down a trans-rights provision in the new regulation that was not only inconsistent with the court’s decision BostockIt is forced by Bostock. Lower courts have faulted the Biden administration for allowing it to do so Bostock The decision was made.
What exactly do the trans rights provisions of the new regulation do?
The new regulation includes three provisions touching on transgender rights in education, all of which have been challenged by the plaintiffs. Louisiana And Tennessee.
Title IX provides that no person shall be discriminated against.”on the basis of sex“Any educational program or activity that receives federal financial assistance.” The first challenged provision of the new regulation defines the phrase “based on sex” to include “discrimination based on sexual stereotypes, sexual characteristics, pregnancy or related conditions, sexual orientation, and gender identity“
Although plaintiffs challenge the inclusion of gender identity in this definition, this challenge should be dismissed Bostock. Bostock He says that “it is impossible to discriminate against a person for being gay or transgender without discriminating against that person on the basis of sex“There’s really no way to read that language except the way the Biden administration reads it.
The other two challenged provisions stand on somewhat less firm legal ground. In the words of the Department of Justice, a provision establishes that, “A school discriminates on the basis of sex if a student needs Use a restroom or locker room that is inconsistent with the student’s gender identity” I will explain in more detail below, Bostock Does not guarantee a student’s right to use a bathroom that aligns with their gender identity.
Remaining challenged provisions Prohibits schools from engaging in “unwanted sexually-oriented conduct.” that is “so severe or pervasive that it limits or denies an individual’s ability to participate in or benefit from a school’s educational program”. This provision is similar to many long-standing laws and legal precedents prohibiting sexual harassment. But the plaintiffs object to the theory that it could prohibit students and teachers from referring to a student in the wrong gender or using the wrong pronoun.
Notably, however, the Justice Department did not ask the Supreme Court to look into these latter two provisions — that is, the Biden administration is willing to let the lower court’s order blocking the bathroom and anti-harassment provisions remain in place for now. Issues are litigated in lower courts. But, perhaps, they will ask the Supreme Court to weigh in on these two other provisions at a later date.
For now, the Justice Department is only asking justices to block two parts of lower court orders that are unequivocally wrong: the lower court’s decision to strike down provisions of the new regulation that weren’t even challenged, and the decision to strike. Below is a definition of the term “on the basis of sex” which is uniform Bostockdefinition of
so what Bostock What to say about this case?
To understand why the Justice Department decided to challenge only part of the lower court’s order, at least in the early stages of this case, it is helpful to dig into BostockIts logic.
Bostock Involved is Title VII, a federal law that prohibits discrimination in the workplace “…because of sex.” Notably, Bostock Assuming that the word “sex” refers to “Only for biological differences between men and women” So a child born with a gender is considered male, for purposes of Bostockregardless of their gender identity.
Yet, despite this prohibition, Bostock Still concluded that “it is impossible to discriminate against a person for being gay or transgender without discriminating against that person on the basis of sex.” The court reasoned that, if a male employee is allowed to date women, dress in traditionally male clothing, and otherwise appear as a man, then a female employee must be allowed to do the same. Otherwise, the employer will treat men differently from women and that is discrimination based on sex.
Moreover, when Bostock By itself involving an employment dispute, the case uses clear language that clearly includes other anti-discrimination laws such as Title IX. Again, Title IX prohibits discrimination “on the basis of sex” and Bostock Holds that it is impossible to discriminate against someone for being transgender “without discriminating against that person on the basis of sex.”
Bostock There are some limits. For one thing, the court expressly denied “Address bathrooms, locker rooms, or something else like that“So the Biden administration cannot be trusted Bostock Maintaining the rule allowing transgender students to use the bathroom consistent with their gender identity. Similarly, Bostock There is no word on whether schools can exclude transgender women from women’s sports teams because the law has historically allowed gender segregation in sports.
So the Justice Department’s decision called for the Supreme Court to reinstate, but not all, the struck-down regulations consistent with what the court said. Bostock. after Bostock, whether schools can exclude transgender students from bathrooms that align with their gender identity is still an open question. And the Biden administration likely realized it would be impossible to convince this extremely conservative Supreme Court to extend it Bostock — especially in a case where judges are asked to intervene during a case in a lower court.
But the question of whether the term “on the basis of sex” includes discrimination against transgenders is not difficult. The Supreme Court gave a positive answer to that question Bostock, and it did so clearly and directly. The lower court’s decision dismissed the appeal Bostock Title IX fails a very basic reading comprehension test.
Louisiana And TennesseeIn other words, it will reveal whether Roberts and Gorsuch were honest Bostock case
There is no rational way to read Bostock Except that’s not how the Biden administration read it. The only question is whether two of the court’s Republicans will reach the same conclusion.
