The recent decision in Bostock v. Clayton County, wherein the mostly-conservative Supreme Court voted 6-3 to protect LGBTQ employees against discrimination because of gender identity or sexual orientation, represents an abandonment of the as-written interpretation of the Constitution from traditional conservative legal arguments. In his dissenting opinion, Justice Alito called the decision “a pirate ship” that “sails under a textualist flag.” The plaintiffs’ legal team focused their arguments on the plain meaning of the statute rather than a congressional intent or contextual meaning. The legal teams argued their case based on what is written in the Constitution – that discrimination based on sex is protected under the 1964 Civil Rights Act – and the medical and legal consensus that “sex” is comprised of myriad factors including gender identity, the plaintiffs demonstrated that Title VII as written includes gender identity. This approach demonstrates that the progressive legal movement can use interpretations of the law, originally thought to be conservative, to achieve legal equality for transgender people. In doing so, the law inherently includes transgender people and does not require that transgender protections and rights be added as an afterthought to existing nondiscrimination laws based on sex.
Justice Alito’s dissent recognizes that the plain meaning of the statute includes discrimination protections for transgender people and creates a powerful opportunity for future nondiscrimination cases beyond employment to follow the same model and precedent. It also provides insight as to how Alito and other conservatives expect to counter these steps towards LGBTQ equality through religious exemptions that will erode civil and human rights based on gender identity and sexual orientation.
Alito’s Dissent Lays the Roadmap
Regardless of the legal strategy that won Bostock, there are very real ramifications of the decision that will be litigated in the courts for years to come. This decision is closer to Windsor rather than Obergefell in that the dissent will likely play a major role in how district and circuit courts could interpret the majority opinion. Justice Scalia’s infamous dissent in the United States v. Windsor decision, like his dissent in Lawrence v. Texas before that, predicted and conceded that the court’s decision to strike down the Defense of Marriage Act (DOMA) in 2013 would lead to marriage equality. Not only was he correct but many of the subsequent decisions striking down same-sex marriage bans specifically cited Scalia’s dissent. The coming legal battles for LGBTQ justice will likely do the same with Justice Alito’s dissent.
While Bostock defined protections under Title VII to protect an employee based on their gender identity or sexual orientation, there remain several aspects of Title VII and several other civil rights laws where sex is referenced which are still open to interpretation. In his dissent, Alito created a roadmap for these civil rights laws by appending every single federal statute that references sex to now include gender identity. Issues such as bathrooms, locker rooms, and women’s sports are currently being weaponized to dehumanize transgender people and we can anticipate upcoming litigation in the coming years to include housing, healthcare, school athletics, and religious employers as well, all of which greatly impact the transgender community.
We expect to see additional forthcoming litigation about health care, particularly in the context of providing transition-related care to transgender patients. Access to gender affirming care is a lifesaving human right for transgender patients, and while recent years have seen an unprecedented increase in access to gender affirming care, the low bar set by the status quo is still unacceptable. When transition-related health care has been litigated, courts have unanimously held that the statutory text in Section 1557 of the Affordable Care Act prohibits discrimination in health care on the basis of gender identity. In June, the Trump Administration issued proposed additional regulations to strip away protections for transgender patients by making it easier for health care providers to discriminate against and deny care to transgender patients. The administration’s recent attempt to strip LGBTQ protections in the regulations in Section 1557 is again bringing the definition of sex to the center of the legal debate. Multiple LGBTQ groups, including Transgender Legal Defense and Education Fund (TLDEF), have already filed suit seeking to block implementation of Section 1557 regulations.
On July 22nd, the Department of Housing and Urban Development (HUD) announced a proposed rule that would violate the precedent set by the Supreme Court’s affirmation of Title VIII by allowing and encouraging discrimination against transgender women experiencing homelessness, specifically Black transgender women, who are already among the most marginalized and vulnerable in our communities. Unsurprisingly, this administration remains insistent that it can discriminate against transgender people regardless of what the Supreme Court says.
Finally, the Department of Education (Ed) and Department of Justice (DOJ) have weighed in with the administration’s position on Title IX by maintaining that this landmark legislation does not prohibit discrimination on the basis of gender identity. Their position supports anti-transgender advocates in Idaho and Connecticut as they push for transgender athletes to be removed from school sports. The first post-Bostock decision in Adams v. St. Johns County Schoolboard was a categorical win for transgender rights that saw the 11th Circuit extending transgender protections to Title IX and reaffirming its equal protection clause precedent for gender nonconformity.
In their next term, the Supreme Court will hear cases that center religious exemptions of civil rights law, including in Fulton v. City of Philadelphia where religious adoption agencies are contesting restrictions that stop them from turning away LGBTQ couples. A broad ruling that would allow exemptions for religious organizations who receive government funding will give these institutions carte blanche to openly discriminate against LGBTQ people. Such a wholesale rejection of civil rights protections would lead to a class of religious organizations with zero oversight or accountability to discriminate in a myriad of social welfare services and safety net programs that encompass housing, healthcare, employment. This terrifying prospect could potentially chip away at the hard-won protections in Bostock by making it easier, and legal, for institutions to discriminate against LGBTQ people. We have already seen the first domino fall with Our Lady of Guadalupe School v. Morrissey-Berru, decided on July 8th, that expanded the ministerial exemption broadly and stripped all civil rights protections for the vast majority of employees.
The Right Responds
The Alliance Defending Freedom, the conservative legal advocacy group designated by the Southern Poverty Law Center as a hate group and the force behind the Harris Funeral Homes case at the heart of the Bostock decision, was surprised, angry, and frustrated by the Court’s opinion. Likening American culture to the Notre Dame cathedral (“gone up in flames”), senior counsel and vice president of appellate advocacy John Bursch, who argued the Harris case for ADF, mourned the loss saying, “Ideas have consequences. Bad ideas have victims. And we are now reaping the rewards from decades of bad ideas including those spawned by the sexual revolution… Yet I can’t help but feel joy as I go to work today. I know that Christ has already won by conquering sin and death.”
An ADF blog post summing up the Bostock opinion warns of three consequences of the ruling: first, that Americans will no longer be able to rely on “the law as it is written” because “sex” under Title VII is now confirmed to include gender identity; secondly, that non-elected federal employees will abuse their power and rewrite laws to benefit their cronies; and thirdly, that the decision removes lawmaking from the purview of “the people” by allowing the courts to usurp legislative power. In taking this angle, ADF is prepping its readers and donors to contravene administrative decisions when they do not directly benefit from said decisions. “As Justice Samuel Alito says at the beginning of his dissenting opinion,” ADF reminded readers, “‘There is only one word for what the Court has done today: legislation.’”
Kriston Waggoner, senior vice-president of ADF’s U.S. legal division, picks up that point in her op-ed for Newsweek. Quoting Alito’s dissent, Waggoner insists that the “Court’s majority has expanded its role to retroactive author and editor” and goes on to start her own parade of horrible lock-step with Alito, saying:
Even though the Harris decision focused on employment law found in Title VII, the effort to reinterpret federal legislation could quickly extend to Title IX and consequently sideline women. This social experiment has already undermined the privacy and dignity of school-age young women. It’s nearly forced vulnerable homeless women to choose between sleeping outside or sharing a room with a violent man. And it cost young track athletes in Connecticut dozens of opportunities to compete, advance and medal. It shouldn’t take expert testimony to make the case that men are generally stronger, taller, faster and more muscular than women. Our eyes tell us so. We’re doing our daughters a huge disservice to pretend otherwise.
Nearly identical language was shared by ADF senior news writer and editor Jessica Prol Smith in her op-ed for The Federalist, alleging that women will be “sidelined” in sports and that “vulnerable homeless women [will be forced] to choose between sleeping outside in the Alaskan winter or sharing a room with a violent man.”
In the wake of the momentous Bostock decision, conservatives are laying the groundwork for challenges to the employment protections that it provides as well as further protections surely to arise from the substance of the holding. By using Alito’s dissent as a road map, and pushing the specious narrative that the decision undermines existing protections on the basis of sex, the anti-LGBT Right is making predictable moves. Even as they respond to an unpredictable decision.