As communities across the country debate the rights of transgender athletes, legal experts are divided over what the future will hold.
Some believe the U.S. Supreme Court will eventually strengthen protections for LGBTQ athletes, just as it did for LGBTQ workers two years ago. Others say the sports context raises unique legal questions, and that the 2020 ruling doesn’t really hold any clues.
“The Gorsuch majority opinion in (the 2020 transgender rights case) goes out of its way to say it only applies to employment discrimination,” wrote Ryan Anderson, president of the Ethics & Public Policy Center in Washington, D.C., in an email this week.
That past case, Bostock v. Clayton County, centered on Title VII of the Civil Rights Act. The court was asked to decide whether its prohibition on sex discrimination offered protections to gay and transgender workers.
In a surprise 6-3 decision, Justice Neil Gorsuch, former President Donald Trump’s first appointee to the court, wrote that firing a worker for being gay or transgender constitutes unlawful sex discrimination, even if the authors of Title VII wouldn’t have expected it to.
“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, exactly what Title VII forbids,” he wrote in the majority opinion, which was released on June 15, 2020.
As Anderson noted, the opinion attempted to limit the application of the decision by stating that battles over how to define “sex discrimination” in other contexts would need to have their own day in court.
“The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination,” Gorsuch wrote. “But none of those other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.”
Despite those lines, the 2020 ruling did fuel significant changes to more than just employment law. For example, just hours after President Joe Biden took office, his administration cited Bostock to justify an executive order expanding LGBTQ non-discrimination protections.
“The order explains that nearly all legal prohibitions on ‘sex discrimination’ cover sexual orientation- and gender identity-based discrimination, as well. For that reason, it says, federal officials must ensure that gay and transgender Americans are treated the same as other participants in the programs they oversee,” as the Deseret News reported at the time.
The order specifically mentioned Title IX, signaling that “the Biden administration wants transgender athletes to enjoy the same protections Title IX originally gave to women when it was passed 50 years ago,” according to The Associated Press.
Robin Maril, a law professor at Willamette University in Salem, Oregon, said the Biden administration’s statements and actions make sense in light of Title VII’s role in the legal landscape.
The employment policy has long been used as a guidepost in discussions on other, related rules, she said.
“Traditionally, courts and federal agencies look to Title VII to figure out how to interpret sex discrimination,” she said.
For that reason, Maril believes the Supreme Court’s ruling in Bostock is deeply relevant to today’s debates over the rights of transgender athletes. It will influence the justices if and when they hear a case involving bans on transgender women competing in women’s sports, she said. (Several such cases are currently working their way through the lower courts, including in Utah.)
“If the law is applied faithfully in the way that it should be, I don’t think bans should survive,” she said.
But not all legal scholars share Maril’s view. Anderson is among those who think a potential Supreme Court case on transgender athletes would raise more complicated questions than the past employment discrimination case.
“A certain simplistic logic at the heart of Bostock would entail that all single-sex sports ‘discriminate’ on the basis of sex. I doubt the court will embrace that simplistic logic, as they can already recognize that there are bodily differences that make a difference when it comes to physical competition, and thus respecting equality does not require embracing sameness when it comes to sports,” he said.
The gap between Maril and Anderson’s comments help illustrate why debates over transgender athletes are far from resolved. As LGBTQ rights advocates work to build on their important Supreme Court victory from 2020, others are working just as hard to limit the application of the Bostock decision.