Protesters rally in front of the Supreme Court as it hears arguments on whether gay and transgender people are covered by a federal law barring employment discrimination on the basis of sex on October 8, 2019. | Bill Clark/CQ-Roll Call, Inc via Getty Images
Anti-LGBTQ Republicans are governing like they have no adult supervision. At least for now, the courts aren’t tolerating that behavior.
For transgender people and those who care about them, the last several months have been bleak.
In the past year, we’ve seen a wave of state laws targeting transgender athletes and even forbidding many trans people from receiving gender-affirming medical care. These laws, moreover, are part of a much broader legal assault on LGBTQ Americans, which includes attacks on drag performers, attempts to remove queer-themed books from libraries, and a simply astonishing array of anti-LGBTQ laws from the state of Florida alone.
Not that long ago, LGBTQ rights lawyers could have been fairly confident that these laws would be heavily scrutinized by the Supreme Court. Before then-President Donald Trump remade the Court by appointing a third of its members, an alliance of Justice Anthony Kennedy and four liberal justices struck down an array of laws driven by anti-LGBTQ animus. As Kennedy wrote in Romer v. Evans (1996), the first of these decisions, laws motivated by “a bare … desire to harm a politically unpopular group” are not constitutional.
But after Kennedy’s retirement in 2018 — and especially after Justice Ruth Bader Ginsburg’s death in 2020 gave Republican appointees a 6-3 majority on the Supreme Court — the future of LGBTQ rights looked grim. Many of the architects of today’s moral panic against queer people have spoken quite openly about their belief that the Court will no longer follow left-leaning precedents of all kinds. As Florida’s Republican Gov. Ron DeSantis said about one of the Court’s many 5-4 decisions where Kennedy joined the liberals in the majority, “we do not believe the Supreme Court, in its current iteration, would uphold it.”
But the picture that’s emerged since Kennedy let Trump choose his successor is more complicated than many court-watchers — including myself — predicted as we watched Trump fill the judiciary with Federalist Society stalwarts. In Bostock v. Clayton County (2020), conservative justices John Roberts and Neil Gorsuch unexpectedly joined the Court’s liberal minority and ruled that federal civil rights law prohibits anti-LGBTQ discrimination in the workplace. Meanwhile, lower court judges — including some Republicans — have read Bostock fairly broadly to forbid many of the latest attacks on LGBTQ people.
Just this week, a federal judge in Arkansas struck down the state’s new ban on gender-affirming care for transgender teens, and that decision built on an earlier opinion by a bipartisan panel of the United States Court of Appeals for the Eighth Circuit, which used similar reasoning to the Supreme Court’s decision in Bostock.
To be sure, the picture is nuanced, and lawyers challenging certain state laws — such as laws banning trans athletes from sports teams that align with their gender identity, or laws barring trans students from bathrooms aligned with their identity — are likely to face an uphill battle in a Supreme Court dominated by socially conservative Republicans.
But other anti-LGBTQ laws have thus far not received a very welcome reception even from GOP-appointed judges. Trump appointee Judge Thomas Parker, for example, recently struck down a Tennessee anti-drag law targeting “male or female impersonators” in that state. In addition to the Arkansas ruling, courts have blocked three other state bans on gender-affirming care.
And even when courts do rule in favor of anti-LGBTQ policies, those decisions are often tempered with doctrinal rulings that will likely benefit queer litigants in the future.
In Adams v. School Board of St. Johns County (2022), for example, the 11th Circuit split along party lines, with all seven of the court’s active Republican judges upholding a public school policy that prohibited a transgender male student from using the men’s restroom. But even that decision concluded that laws targeting trans people must survive “intermediate scrutiny” — meaning that such laws are presumptively unconstitutional and will normally be struck down. That’s a powerful legal weapon that litigants in the 11th Circuit can now use to attack anti-trans laws.
It’s important to be clear-eyed about what the future will look like for LGBTQ litigants. It is unlikely that five of the current justices agree with Romer’s conclusion that laws motivated solely by anti-LGBTQ animus are unconstitutional, for example. And many lower courts have been reluctant to protect transgender rights in contexts like public bathrooms and sports teams, where gender segregation has historically been allowed.
Yet the picture for LGBTQ litigants has thus far been more favorable than anyone reasonably could have predicted on the day Kennedy announced his retirement.
The current state of LGBTQ rights under the Supreme Court’s precedents
Under Justice Kennedy, the Court handed down four landmark decisions protecting gay and bisexual Americans from discrimination by their government: Romer, the decision striking down Texas’s “sodomy” law in Lawrence v. Texas (2003), and the marriage equality decisions in United States v. Windsor (2013) and Obergefell v. Hodges (2015).
Notably, all four of these cases involved anti-gay discrimination, and not trans rights issues. Indeed, if one looks solely at the justices’ published opinions, it’s easy to come away with the impression that they only recently discovered that trans people exist. The first Supreme Court opinion that even used the word “transgender” wasn’t handed down until 2012, and that case did so only in passing.
Yet, despite their limited scope, all four of Kennedy’s gay rights decisions appeared to be in grave danger when he retired. Romer and Lawrence were 6-3 decisions with Kennedy, Ginsburg, and long-since retired Justice Sandra Day O’Connor in the majority. Windsor and Obergefell were both 5-4 decisions, with Kennedy and Ginsburg rounding out the majority.
Five years later, however, many of the rights gay people secured in the Kennedy era appear safe — at least so long as none of the current justices are replaced by a Republican. Conservative Chief Justice John Roberts joined the Court’s decision in Pavan v. Smith (2017), which reaffirmed Obergefell’s holding that “the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples.’” And, while Justice Brett Kavanaugh joined the Court’s opinion in Dobbs v. Jackson Women’s Health Organization (2022), which eliminated the constitutional right to an abortion, he wrote a separate concurring opinion emphasizing that his decision “does not threaten or cast doubt” on Obergefell.
The fate of the right to sexual autonomy recognized in Lawrence, meanwhile, is a bit more uncertain. But it is noteworthy that, in his Dobbs concurrence, Kavanaugh listed Bowers v. Hardwick (1986), the anti-gay decision that was overruled by Lawrence, as an example of a decision that demonstrates that the Court’s loyalty to precedent “cannot be absolute.” That list also included other widely reviled decisions, such as Plessy v. Ferguson (1896) and Lochner v. New York (1905), which are taught in law schools as examples of how judges should never behave.
Indeed, if anything, the Supreme Court has expanded LGBTQ rights since Kennedy’s departure. Bostock was a landmark decision not only because it held that federal law prohibits employers from discriminating on the basis of sexual orientation or gender identity, but also because it announced a new framework that, if applied to all cases alleging LGBTQ discrimination, could prove much more potent than the more cautious approach to gay rights that Kennedy often took in his decisions.
Admittedly, Bostock is likely to be tempered by the Court’s religious liberty decisions, which frequently allow religiously conservative business owners to ignore civil rights laws prohibiting anti-LGBTQ discrimination. But lower courts have thus far read Bostock fairly expansively to also prohibit discrimination by state governments — and the government, unlike a private business owner, cannot make religious liberty claims because the Constitution explicitly forbids the government from establishing an official state religion.
How the Bostock framework could revolutionize LGBTQ rights
Bostock involved Title VII of the Civil Rights Act of 1964, which forbids “sex” discrimination in the workplace. The Court’s core insight in Bostock is that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” If an employer fires a male employee for dating other men, for example, but does not fire a female employee for also dating men, then that’s just ordinary sex discrimination, because the employer has punished a man for doing something that it will allow women to do.
Similarly, if an employer penalizes an “employee who was identified as female at birth” for presenting as a man or otherwise engaging in stereotypically male behavior, but does not penalize “a person identified as male at birth” for the same actions, that is sex discrimination forbidden by federal law.
Notably, Bostock explicitly dodged the question of whether the concept of “gender” exists separately from “status as either male or female [as] determined by reproductive biology.” “Nothing in our approach to these cases turns on the outcome” of that question, Justice Neil Gorsuch wrote for his Court. Indeed, Bostock begins with the assumption that laws prohibiting “sex” discrimination refer “only to biological distinctions between male and female.”
And yet, even if someone takes the position that a trans man is a woman, Bostock’s framework still forbids employers from discriminating against transgender workers. Your boss cannot assign a gender role to you based on your sex assigned at birth.
The specific question in Bostock, it is worth reiterating, was only whether federal law prohibits anti-LGBTQ discrimination in employment. But multiple lower courts have applied Bostock’s framework to other contexts, such as health care or education, and the few judges who’ve refused to do so appear to be outliers (such as Judge Matthew Kacsmaryk, the Christian right activist best known for his failed attempt to ban the abortion drug mifepristone).
The Eighth Circuit’s decision in Brandt v. Rutledge (2022) is emblematic of this approach. In that case, a bipartisan panel blocked Arkansas’s ban on gender-affirming health care for people under age 18, on the theory that it violates the Constitution’s safeguards against sex discrimination. Applying reasoning very similar to Bostock, the Eighth Circuit reasoned that Arkansas’ ban necessarily discriminates on the basis of “biological sex.”
Under this law, Brandt explained, “medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex.” For example, “a minor born as a male may be prescribed testosterone or have breast tissue surgically removed,” but “a minor born as a female is not permitted to seek the same medical treatment.” That’s just ordinary sex discrimination, even if you deny that transgender people actually exist.
Where Bostock has failed transgender litigants
Recall that Bostock’s core insight is that discrimination against LGBTQ people is a form of sex discrimination. This is a potent tool in the hands of civil rights litigators because the law provides many safeguards against discrimination on the basis of sex. Title VII prohibits such discrimination in employment. The Affordable Care Act prohibits sex discrimination by health providers. A law known as Title IX forbids sex discrimination in most schools and universities.
And, on top of all of these statutory safeguards, the Supreme Court has long held that any law or government policy that discriminates on the basis of sex is presumptively unconstitutional, and may only stand if the government can offer an “exceedingly persuasive justification” for treating men and women differently.
Yet, while sex discrimination is rarely lawful, there are a few areas where it is permitted. Title IX, for example, contains a carveout permitting colleges and universities to maintain “separate living facilities for the different sexes.” And federal regulations implementing Title IX permit schools to have “separate toilet, locker room, and shower facilities on the basis of sex,” as long as the facilities “provided for students of one sex [are] comparable to such facilities provided for students of the other sex.”
Similarly, other federal bans on sex discrimination have long been understood to permit separate-but-equal bathroom facilities and sex-segregated sports teams. It is not illegal for an employer to have separate bathrooms for men and women. Nor is it illegal for a high school to have one soccer team for boys and another for girls.
These carveouts for certain kinds of sex discrimination make it harder for trans rights litigants to rely on Bostock to challenge laws prohibiting trans students from using the bathroom that aligns with their gender identity, or that prohibit those students from playing on the appropriate sports team. Bostock, after all, said that discrimination against LGBTQ people is not allowed because it necessarily entails treating men differently than women. But Bostock is silent on what should happen to transgender students and workers in spaces where sex discrimination is lawful.
So lower federal courts have divided on whether trans people may be excluded from bathroom and sports teams that align with their gender identity, with some courts even reaching contradictory results.
In B.P.J. v. West Virginia State Board of Education (2023), for example, a (Clinton-appointed) federal judge initially halted West Virginia’s trans sports ban. After presiding over a full trial on this issue, however, the judge changed course. While the judge deemed the law to be presumptively unconstitutional, he ruled that West Virginia overcame this presumption because “it is generally accepted that, on average, males outperform females athletically because of inherent physical differences between the sexes” — and therefore a state could prevent athletes who might go through male puberty from playing on a women’s sports team.
Similarly, in Adams, the 11th Circuit also concluded that a school district’s trans-restrictive bathroom policy is lawful, pointing to the fact that “the privacy afforded by sex-separated bathrooms has been widely recognized throughout American history and jurisprudence.” Adams was not a total loss for transgender litigants, because it also held that any policy that classifies students based on sex is presumptively unconstitutional, including policies that target transgender students. But the Court held that this presumption is overcome within the context of sex-segregated bathrooms.
It should be noted that at least two other appeals courts — the Fourth and Seventh Circuits — held that schools may not prevent trans students from using the bathroom that aligns with their identity, and four judges dissented from the 11th Circuit’s conclusion in Adams. So it’s not like the case against trans-inclusive bathroom policies is a slam-dunk.
But every circuit judge to vote in favor of a trans-exclusive bathroom policy was appointed by a Republican, and, with only one exception, every circuit judge to vote against such a policy was appointed by a Democrat. So if you are trying to predict how the current Supreme Court will resolve this issue, that partisan breakdown probably tells you everything you need to know.
So what’s the future of LGBTQ rights in the courts?
The state of LGBTQ rights is much better than seemed likely after Kennedy’s retirement. But the future for LGBTQ Americans is still precarious, and things could get much worse in a hurry, particularly for trans people, depending on how the Supreme Court behaves — and on what happens to the Court’s membership.
First of all, Bostock was a 6-3 decision, with the now-late Justice Ginsburg in the majority. That means that there are probably only five votes on the current Supreme Court — the three liberals plus Gorsuch and Roberts, who joined Gorsuch’s opinion — who support that decision. If someone like Donald Trump or Ron DeSantis is elected president in 2024, they could easily replace one or more members of the Court’s pro-Bostock majority with new justices who will vote to overrule that decision.
Similarly, if President Joe Biden is reelected, he could potentially replace archconservative Justices Clarence Thomas and Samuel Alito, both of whom are in their 70s. That would give the Court its first left-leaning majority since the beginning of the Nixon administration, and would most likely ensure robust protections against anti-LGBTQ discrimination.
It’s also worth reiterating that Bostock itself applied solely to employment discrimination — although lower court judges from both parties have applied the decision to other contexts. So, even if the Court’s membership remains the same, there is a risk that the Court’s current majority will not apply Bostock’s sex discrimination framework to every case involving discrimination on the basis of sexual orientation or gender identity.
Finally, I want to close by acknowledging that the status quo is demeaning to transgender people. As Judge Robert Hinkle wrote in a recent decision blocking Florida’s ban on gender-affirming care for minors, an “unspoken suggestion” animating so many recent anti-trans laws is that “transgender identity is not real, that it is made up.”
Bostock, of course, dodged the question of whether the scientific and medical consensus, that some people authentically identify with a gender that does not match their sex assigned at birth, is correct. And the Bostock framework does not allow trans litigants to claim protection as trans people. If anything, it implicitly requires them to identify with their sex assigned at birth. Bostock, after all, ruled that the reason a trans man may present as a man at work is because, as an “employee who was identified as female at birth,” they may not be treated differently than a cisgender man.
Eventually, the Supreme Court will have to confront the question it avoided in Bostock, most likely in a case involving bathrooms or sports, and it is far from clear that this very conservative Court will agree with the medical and scientific consensus that transgender identity is real.