SALT LAKE CITY — On the surface, the Supreme Court’s three cases on sex discrimination, which were argued on Tuesday, seem to be narrowly focused on employment law. They center on Title VII of the 1964 Civil Rights Act, which prohibits workplace discrimination based on protected characteristics like religion and sex.
Justices have been asked to decide whether firing someone for being gay or transgender constitutes sex discrimination. But LGBTQ rights activists and conservative legal advocates agree the ruling will have broad ramifications, affecting everything from honor codes at faith-based schools to who gets to join women’s sports teams.
If the Supreme Court says LGBTQ discrimination isn’t covered by federal employment law, gay and transgender Americans across the country will suffer, according to Shannon Minter, legal director of the National Center for Lesbian Rights. Groups like the ACLU and Human Rights Campaign would likely have a harder time fighting other forms of LGBTQ discrimination in the courtroom and would, instead, seek to pass new nondiscrimination laws at the state and federal levels.
If, instead, the ruling states that sex discrimination includes sexual orientation or gender identity based discrimination, then other laws outlawing sex discrimination would be reexamined. A victory for LGBTQ workers might lead to changes in housing standards, hospital procedures and policies governing religiously affiliated schools like Brigham Young University.
So why does it seem like some conservative legal experts only want to talk about transgender athletes infiltrating women’s sports?
“If you redefine sex to include transgender status, all of a sudden it puts women in women’s sports at risk,” said John Bursch, vice president of appellate advocacy and senior counsel for Alliance Defending Freedom, during a Sept. 16 panel on the cases in Washington, D.C.
LGBTQ rights activists claim it’s because conservative commentators have prioritized fear-mongering over principled discussion, a charge that conservatives strongly deny.
Conservatives would rather “insert a poison pill” into conversations about preventing LGBTQ discrimination than engage with gay and transgender Americans’ concerns, Minter said.
“I don’t think the conversation has naturally gone in this direction. I think there’s been a deliberate strategy ... to exploit people’s fears and misconceptions,” he said.
Although a growing share of U.S. adults supports LGBTQ nondiscrimination protections, many Americans still worry about allowing transgender men and women into sex-segregated spaces, according to PRRI, a research organization focused on politics, law, religion and culture.
Jennifer Bryson, the founder of Let All Play, which works to separate political issues from sports, rejected Minter’s assessment. She said it’s reasonable to worry that the court’s decision in the cases could accelerate efforts to allow young people with male bodies to “essentially put an end to female sports.”
“The reason sports are being discussed so much is that the impact is so immediate and so clear,” she said.
If the Supreme Court ruled in favor of the LGBTQ community, it likely wouldn’t offer guidance on how to define gender identity, which would sow confusion across the country, Bryson said. K-12 schools might defer to kids and their parents seeking to switch sports teams in order to avoid lawsuits.
Bryson is concerned that school policy changes could lead to unsafe locker room conditions for young girls. Forty-five percent of U.S. adults support laws that require transgender people to use bathrooms that correspond with their sex at birth, according to PRRI.
Schools might improve policies for sex-segregated sports over time, and policymakers might broaden exemptions for religiously affiliated leagues and districts, but that wouldn’t satisfy many of those concerned about the future of female athletics, said Ryan Anderson, a senior research fellow in American principles and public policy at The Heritage Foundation.
“The concern is that it’s unfair for people with male bodies to compete against people with female bodies in various sports, regardless of how they sincerely identify,” he said.
Minter, who is a transgender man, didn’t deny that a Supreme Court ruling in favor of gay and transgender workers could pave the way toward more integration of transgender athletes into sex-segregated sports. However, he objected to the claim that such a shift would put young women in danger or make it harder for them to win.
Transgender champions in women’s sports are few and far between, he said, adding that “it’s terrible to exploit those isolated situations and say they’re indicative of some bigger problem.”
Seeking balance
The Supreme Court’s sex discrimination cases come at a time when support for transgender Americans is on the rise, but questions and concerns about their identity persist, Minter said.
While more than 6-in-10 U.S. adults say they have become more supportive of transgender rights over the past five years, only 24% report having a close friend or family member who is transgender, according to PRRI.
“Americans are significantly less likely to have close connections with transgender people than with gay, lesbian or bisexual people,” PRRI reported.
Being unfamiliar with members of the transgender community can exacerbate tensions related to transgender athletes and bathroom rules, Minter said.
So can religion, Bryson noted.
“The first place we’re going to see conflict is at religious schools,” she said of efforts to integrate transgender girls into K-12 girls’ sports teams. Some religious schools have already left their athletic conferences due to disagreements over gender identity nondiscrimination policies.
Although PRRI’s data shows that majorities of every major religious group say they’ve become more supportive of transgender rights over the past five years, many religions officially reject the concept of transgenderism.
“To scriptural literalists, transgender people are saying, ‘I was created in the wrong body.’ ... That asks someone who believes in the perfection of God’s creation to accept that God made a mistake,” said Rabbi Jack Moline, president of Interfaith Alliance, to the Deseret News earlier this year.
It’s harmful to ignore those religious teachings, and policies welcoming transgender athletes onto women’s teams would drive a wedge between secular and faith-based private schools, Bryson said.
“We’ll lose a shared civil space if we’re going to have to separate religious schools,” she said.
However, if schools don’t allow transgender athletes to join the sports teams that match their gender identity, they’ll amplify the bullying that’s already taking place, Minter said.
“Disability and both sexual and gender orientation have been identified as factors that increase the risk of harassment in sport,” explained a report on youth sports released last month by the U.S. Department of Health and Human Services.
It’s unfair to take away an opportunity for transgender kids to form friendships and exercise alongside their peers, Minter said.
“The last thing we need to be doing is creating a barrier for these kids,” he said.
Nearly 80% of U.S. adults believe transgender people face stigma in their communities, PRRI reported.
Like Minter, Bryson wants to increase resources available to transgender kids. But rather than adjust the rules regulating single-sex teams, she’d propose finding ways to create separate leagues for transgender athletes of all ages.
“I would like to see that discussed. Right now, the only options being discussed involve head-on conflict,” she said.
Minter would also like to see more solutions-focused discussions, but he hopes they’re not simply about sports. No matter what the Supreme Court decides, policymakers and other community leaders need to be looking for ways to address the concerns of the LGBTQ community while also respecting other Americans, including people of faith, he said.
“There are really important issues that we need to talk about, like how to protect LGBT people from discrimination and protect religious liberty,” he said.