The Supreme Court will decide whether to gut Neil Gorsuch’s one good LGBTQ decision

Bostock v. Clayton County (2020) was one of the few pleasant surprises for liberals to come out of the Supreme Court during the Trump administration.

Authored by Trump appointee Neil Gorsuch and joined by Republican Chief Justice John Roberts, Bostock held that a decades-old federal civil rights law prohibits workplace discrimination on the basis of sexual orientation or gender identity. It’s also written using such expansive language that it leaves little doubt that discrimination against LGBTQ people is forbidden in many other contexts, including health care and education.

Nevertheless, two separate appeals court panels — both of them dominated by Republican judges — recently suggested that Bostock has nothing to say about discrimination by educational institutions like public schools and universities.

One opinion, by the far-right United States Court of Appeals for the Fifth Circuit, simply ignored Bostock altogether, as though it didn’t exist. Another opinion, joined by two Republicans on the Sixth Circuit, spent just two paragraphs trying to explain why the plain language of Bostock does not apply to schools.

Now, both of these cases — known as US Department of Education v. Louisiana and Cardona v. Tennessee — are before the Supreme Court on its “shadow docket, a mix of emergency motions and other matters that are often decided on a very tight timeframe. The stakes are enormous, as these two cases could determine whether the justices intend to enforce the one significant pro-LGBTQ rights decision they’ve handed down since former President Donald Trump started to remake the Supreme Court in the Federalist Society’s image.

Both cases involve a fairly comprehensive set of Biden administration regulations interpreting Title IX, a law that prohibits sex discrimination at schools that receive federal funding. And both cases are exceedingly messy.

Most of the Biden administration’s Title IX regulations have nothing to do with transgender rights. Among other things, they lay out certain rights for pregnant students and school employees. They establish that parents and legal guardians may act on behalf of students whose Title IX rights are violated. And the new regulations define terms, such as “complainant,” “disciplinary sanctions,” or “postsecondary education,” which frequently arise in Title IX disputes.

That said, the regulations do include three provisions that impact trans students, including one that, according to the Justice Department, requires schools to allow these students to use bathrooms that align with their gender identity. The regulations also adopt Bostock’s definition of “sex” discrimination, which includes discrimination on the basis of sexual orientation or gender identity.

The red-state plaintiffs in Louisiana and Tennessee do not challenge any of the new rules that do not touch on transgender rights. And yet the lower courts struck down the Title IX regulations in their entirety. That alone is an error warranting intervention by the Supreme Court. As the Court held in Gill v. Whitford (2018), when a court finds a legal violation, the “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.”

But even setting aside the overbreadth of the lower court’s orders, the lower courts also committed another egregious error. They struck down a trans-rights provision of the new regulations that isn’t just consistent with the Court’s decision in Bostock, it is compelled by Bostock. The lower courts faulted the Biden administration for doing the only thing it is allowed to do after Bostock was decided.

The new regulations include three provisions touching on transgender rights in education, all of which are challenged by the plaintiffs in Louisiana and Tennessee.

Title IX provides that no one shall face discrimination “on the basis of sex” in “any education program or activity receiving Federal financial assistance.” The first challenged provision of the new regulations defines the phrase “on the basis of sex” to include “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”

Though the plaintiffs challenge the inclusion of gender identity in this definition, this challenge should be frivolous under Bostock. Bostock held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” There’s really no way to read that language other than the way the Biden administration read it.

The other two challenged provisions stand on somewhat less firm legal ground. One provision establishes, in the Justice Department’s words, that “a school discriminates on the basis of sex if it requires a student to use a restroom or locker room that is inconsistent with the student’s gender identity.” As I’ll explain in more detail below, Bostock does not guarantee a student’s right to use a bathroom that aligns with their gender identity.

The remaining challenged provision prohibits schools from engaging in “unwelcome sex-based conduct” that “is so severe or pervasive that it limits or denies a person’s ability to participate in or benefit from” a school’s educational program. This provision is similar to many longstanding laws and legal precedents prohibiting sexual harassment. But the plaintiffs object to it on the theory that it might prohibit students and teachers from misgendering a student or from referring to them using the wrong pronouns.

Notably, however, the Justice Department does not ask the Supreme Court to weigh in on these later two provisions — that is, the Biden administration is willing to leave the lower court order blocking the bathrooms and anti-harassment provisions in place for now while those issues are litigated in the courts below. It is likely, however, that they will ask the Supreme Court to weigh in on these two other provisions at a later date.

For now, the Justice Department only asks the justices to block the two parts of the lower courts’ orders that are unambiguously wrong: the lower court’s decisions to strike down provisions of the new regulations that weren’t even challenged, and the decision to strike down a definition of the term “on the basis of sex” that is identical to Bostock’s definition.

To understand why the Justice Department decided only to challenge part of the lower courts’ orders, at least at this early stage in this litigation, it’s helpful to dig into Bostock’s reasoning.

Bostock involved Title VII, a federal law that prohibits workplace discrimination “because of … sex.” Significantly, Bostock assumed that the term “sex” refers “only to biological distinctions between male and female.” So a child born with a penis is considered male, for purposes of Bostock, regardless of their gender identity.

Yet, even with this restriction in place, Bostock still reached its conclusion that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court reasoned that, if a male employee is allowed to date women, to dress in traditionally masculine clothing, and to otherwise present as a man, then a female employee must be allowed to do the same. Otherwise, the employer would be treating men differently than women, and that is discrimination based on sex.

Moreover, while Bostock itself involved an employment dispute, the case uses sweeping language that clearly encompasses other anti-discrimination laws such as Title IX. Again, Title IX forbids discrimination “on the basis of sex” and Bostock held that it is impossible to discriminate against someone for being transgender “without discriminating against that individual based on sex.”

Bostock does have some limits. For one thing, the Court explicitly refused to “address bathrooms, locker rooms, or anything else of the kind.” So the Biden administration cannot rely on Bostock to uphold its rule permitting transgender students to use bathrooms that align with their gender identity. Similarly, Bostock has little to say about whether schools can exclude transgender women from women’s sports teams because the law has historically permitted sex segregation in sports.

So the Justice Department’s decision to ask the Supreme Court to reinstate most, but not all, of the struck-down regulations is consistent with what the Court said in Bostock. After Bostock, the question of whether schools may exclude transgender students from the bathroom that aligns with their gender identity is still an open question. And the Biden administration probably realized that it was unlikely to persuade this very conservative Supreme Court to extend Bostock — especially in a case asking the justices to intervene while litigation is still ongoing in the lower courts.

But the question of whether the term “on the basis of sex” includes discrimination against transgender people is not difficult. The Supreme Court answered that question in the affirmative in Bostock, and it did so clearly and directly. The lower court decisions refusing to apply Bostock to Title IX fail a very basic reading comprehension test.

Louisiana and Tennessee, in other words, will reveal whether Roberts and Gorsuch were being honest in the Bostock case.

There is no plausible way to read Bostock other than the way the Biden administration read it. The only question is whether two of the Court’s Republicans will reach that same conclusion.