The Supreme Court issued a brief and very strange opinion Friday that appears to abandon its landmark civil rights decision. Bostock v. Clayton County (2020), a four-year-old lawsuit that forced the Biden administration to write rules banning discrimination against gay and trans students.
The new decision of the court in this regard Dept. of Education v. Louisiana Temporarily vacates lower court decisions that blocked Biden administration rules that, among other things, sought to prevent anti-LGBTQ discrimination by schools and universities.
The rules appear to have been made by the Biden administration Bostock Consent in Mind – In fact, a key provision of these rules would have been illegal if they had been written in any other way Bostock. And yet the courts have ruled against this provision regardless.
Bostock v. Clayton CountyBriefly explained
Bostock Held that a federal anti-discrimination statute that prohibits “gender” discrimination in the workplace prohibits employers from discriminating on the basis of sexual orientation or gender identity. The opinion is written in broad terms, indicating that any law that prohibits “gender” discrimination also prohibits discrimination against LGBTQ people.
Justice Neil Gorsuch wrote for the majority Bostock“It is impossible Discriminating 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, or otherwise appear as a man, then a female employee must be allowed to do these things. Otherwise, the employer is treating men differently than women and is illegal sex discrimination.
with Bostock Remember, the Biden administration recently released new regulations interpreting a law known as “Title IX,” which prohibits any school or other educational institution that receives federal funding from discrimination.on the basis of sex“Most public schools, colleges, and universities receive at least some federal grant money or support, so Title IX broadly protects against gender disparities in education.
because Bostock Ruling that it is “impossible” to discriminate against a gay or transgender person without discriminating on the basis of sex, the Biden administration’s new rule defines discrimination “on the basis of sex” to include discrimination based on “gender stereotypes, gender characteristics, pregnancy or related conditions, Sexual Orientation, and Gender Identity.”
Earlier on Friday in the court’s ruling Bostock Seen safe from its Republican supermajority. BostockAfter all, the transfer was made in 2020, after former President Donald Trump had already appointed two of the three justices to the court. And that was the majority opinion Authored by Gorsuch and joined by Chief Justice John RobertsBoth are Republicans.
So, even after Justice Ruth Bader Ginsburg’s death gave Republicans a 6-3 supermajority on the court, it appears there were still five justices left who agreed. BostockIts logic. Decide between LouisianaHowever, this court still raises serious doubts about whether LGBTQ people will be protected from discrimination
so what did Dept. of Education v. Louisiana Decision actually say?
The court split that 5-4 Louisiana Decisions, though along fairly narrow lines. Indeed, one of the most inexplicable aspects of the case is that all three Democrats on the court seemed to agree with this conclusion. Bostock Does not protect LGBTQ students from discrimination.
At issue are the Biden administration’s regulations Louisiana Did much more than just apply Bostock In educational settings. It also includes two other provisions that benefit LGBTQ students, one that requires schools to allow trans students to use bathrooms consistent with their gender identity, and another that prohibits schools from engaging in certain forms of “unwanted sex-based behavior.”
Red-state plaintiffs Louisiana Challenged these two provisions, as well as the provision defining “gender” discrimination as defined in the same way Bostock.
Notably, the regulations also include a smattering of new rules that red-state plaintiffs did not challenge, but lower courts blocked anyway. These include new rules governing the rights of pregnant students and school employees, rules allowing parents to act on behalf of students facing discrimination, and new definitions of terms that often arise in Title IX disputes — such as “disciplinary sanctions” or “postsecondary education.”
To protect the Department of Education, the Justice Department has not asked the court to reinstate the bathroom provision or the “unwanted sexually-based conduct” provision — though it likely will later after the case progresses in lower courts. It asked the court to reinstate the provisions in force BostockAs well as various other provisions that were blocked by lower courts.
And yet, five justices (the court’s six Republicans, excluding Gorsuch), decided not to give the Justice Department anything. Lower court decisions block the entire set of regulations, at least for the time being
Four justices (the court’s three Democrats plus Gorsuch) dissented, but their dissent was quite narrow. They argued that the lower courts “erred by preventing the government from enforcing many regulations that [the plaintiffs] Never challenged and has no apparent connection [plaintiffs’] alleged injury.”
On this point, dissent is correct. It was held before the Supreme Court Gill v. Whitford (2018) that, 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 the dissent agreed with the majority that the lower court ordered the blocking of the definition of “sex” discrimination — again, a definition lifted from the court’s decision. Bostock — should also remain effective. Neither the majority nor the dissent explain why they seem to be abandoning it Bostock. indeed, Bostock Nowhere is the majority opinion or dissent cited.
It’s possible that the three Democrats voted the way they did for reasons that had nothing to do with whether they agreed with them Bostock. Louisiana His “shadow docket” in court, a mix of urgent motions and other matters that receive expedited treatment by the Supreme Court.
The court has been very reluctant to do anything on its shadow docket — so reluctant, in fact, that lawyers have historically been very wary of bringing cases to the shadow docket. Beginning in the Trump administration, however, the court’s Republican majority often began granting shadow docket relief to Trump’s Justice Department and later to other conservative litigants. During this period, the court’s Democratic minority often complained that their Republican colleagues were too quick to grant relief in shadow dockets.
So that’s one explanation for the Democratic justices’ vote Louisiana They are trying to stick to a principled position on the shadow docket — denying relief to the Biden administration for the same reasons they said the court should have denied relief to the Trump administration four years ago.
But, if the Democratic justices asserted a principled stance against the shadow docket, why did they vote to reinstate the noncompete provisions of the new Title IX rules?
Another possibility is that the Democratic justices moderated their positions in an effort to secure five votes. Perhaps the three Democrats thought they could convince their two Republican colleagues to reinstate the unchallenged Title IX rules if they didn’t push to reinstate the definition of sex discrimination?
But, if the Democratic Justices’ walk away Bostock As part of a horse-trade negotiation, they left without horses. In the end, only Gorsuch joined them in voting to reinstate the noncompete rule.
In no event did any member of the court’s Republican majority back down BostockAnd none of them explained why they refused to do so. All the justices gave Americans an explanation for why they refused to block lower court orders that clearly and unequivocally conflict with a binding Supreme Court precedent.
so Louisiana The decision is a mystery. The Justices do not tell us why they refused to follow through Bostock. But, whatever their reasons, the court’s decision not to follow this landmark civil rights decision is an ominous sign for all victims of anti-LGBTQ discrimination.
