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 did not apply to school policies on transgender youths’ use of bathrooms and locker rooms.
Nonetheless, lower courts have cited the high court’s decision and Justice Gorsuch’s opinion to rule in favor of transgender students by striking down school restrictions on restrooms and locker rooms and upholding policies that support students’ sexual identities.
Legal experts say the justices will be forced to revisit the Bostock v. Clayton County decision regarding school bathrooms and transgender youths.
“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 that “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, Justice Samuel A. Alito Jr. warned that the court would have difficulty squaring the employment rights ruling with school policies and women’s sports cases that also cite the civil rights of LGBTQ people.
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 that the firing violated his civil rights.
Justice Gorsuch reasoned that the federal civil rights law protects against workplace discrimination based on a person’s sex and on a person’s sexual orientation or identity. Critics 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 on 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 would undoubtedly apply this ruling to other areas, including 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,” Justice Alito wrote. Justices Clarence Thomas and Brett M. Kavanaugh joined his dissent.
“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,” Justice Alito said. “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 that parents brought against a school district over its decision to allow transgender students to use communal restrooms. The school district cited Bostock in implementing the transgender restroom policy.
Earlier this month, the 7th U.S. Circuit Court of Appeals pointed to the Supreme Court’s 2020 ruling 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.
In June 2021, the high court rejected an appeal from a Virginia school board after lower courts said it violated a transgender boy’s rights by not allowing him to use the same restroom and locker room as biological male students.
That appeal, filed after the Bostock ruling, invited the high court to clarify the decision. The justices decided not to review the case, allowing the precedent to stand.
Penn State’s Mr. Foreman said district and circuit courts generally follow Bostock’s reasoning in 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, predicts that the high court will have to weigh the issue in the next year or so. He noted that school policies on sexual identity had percolated in the courts even before the Bostock ruling 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.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
Please read our comment policy before commenting.