Supreme Court Justice Neil M. Gorsuch wrote in the majority opinion of a 2020 decision protecting LGBTQ employees from workplace discrimination that the landmark ruling does not apply to school policies on transgender youths’ use of bathrooms and locker rooms.
Nonetheless, lower courts have ruled in favor of transgender students by striking down school restrictions on restrooms and locker rooms and upholding policies that support students’ sexual identities, citing the high court’s ruling — and Justice Gorsuch’s opinion.
Legal experts say the justices will be forced to revisit the Bostock v. Clayton County decision in the context of school bathrooms and transgender youth.
“It is likely to go back to the Supreme Court because it is such a hot potato continuing on in cases today,” said John C. Brittain, a law professor at the University of the District of Columbia.
Michael Foreman, a law professor at Penn State University, said “we know there will be continued litigation over this issue, and it no doubt will get to [the Supreme Court].”
Revisiting the Bostock decision should come as no surprise to the high court: In his dissent in the case, Justice Samuel A. Alito Jr. warned that the court would have a difficult time squaring the employment-rights ruling with school policies and women’s sports cases that also cite civil rights pertaining to LGBTQ individuals.
In Bostock v. Clayton County, the justices said in a 6-3 decision that Title VII of the Civil Rights Act of 1964 protects LGBTQ employees from discrimination in the workplace. The case was brought by a gay child welfare services coordinator in Georgia who was fired for his sexual orientation. He argued the firing violated his civil rights.
Justice Gorsuch reasoned that the federal civil rights law protects against workplace discrimination based not only on a person’s sex but also on a person’s sexual orientation or identity. Critics had argued that the prohibition on sex discrimination applied only to women in the workplace.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision,” Justice Gorsuch wrote.
The opinion stipulated that the decision does not extend to restrooms and locker rooms and focuses solely in the employment context.
“Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind,” Justice Gorsuch wrote.
In his dissent, Justice Alito warned that lower courts will undoubtedly apply this ruling to other areas — like schools.
“What the Court has done today — interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity — is virtually certain to have far-reaching consequences,” wrote Justice Alito, who was joined by Justices Clarence Thomas and Brett M. Kavanaugh in ruling against the Bostock ruling.
“As to Title VII itself, the Court dismisses questions about ‘bathrooms, locker rooms, or anything else of the kind.’ And it declines to say anything about other statutes whose terms mirror Title VII’s,” he added. “The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible.”
Some legal battles in the aftermath of Bostock have reflected Justice Alito’s concerns.
Last week, a federal court in Ohio dismissed a case brought by parents against a school district over its decision to allow transgender students to use communal restrooms. The school district had cited Bostock in implementing the pro-transgender restroom policy.
Earlier this month, the 7th U.S. Circuit Court of Appeals pointed to the Supreme Court’s 2020 ruling in striking down an Indiana school district’s rule against allowing transgender students to use the bathroom of their choice.
“Both Title VII, at issue in Bostock, and Title IX, at issue here […] involve sex stereotypes and less favorable treatment because of the disfavored person’s sex. Bostock thus provides useful guidance here, even though the particular application of sex discrimination it addressed was different,” the three-judge panel reasoned.
And in June 2021, the high court itself rejected an appeal from a Virginia school board after lower courts said it violated a transgender boy’s rights in not allowing him to use the same restroom and locker room as biological male students.
That appeal, which came after the Bostock ruling, had invited the high court to clarify the decision, but the justices decided not to review the case, allowing the precedent to stand.
Penn State’s Mr. Foreman said district and circuit courts are generally following Bostock’s reasoning, in that they’re ruling that to bar transgender students from using the bathrooms of their gender identity would be “discrimination based upon sex.”
“Having said this, Justice Gorsuch went out of his way to say that Bostock did not deal with bathrooms, sports and other issues — only that firing someone because they were gay or transgender was discrimination because of sex under Title VII,” he said.
Josh Blackman, a professor at South Texas College of Law, predicted the high court will have to weigh the issue in the next year or so. He noted that the issue had been an area percolating in the courts even before the Bostock decision was handed down three years ago.
“So far, parents have not been successful challenging schools that adopt policies for transgender students. But parents of transgender students have had some success challenging schools that refuse to adopt policies for transgender students,” Mr. Blackman said.
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