This Supreme Court case is reshaping LGBTQ+ rights. You probably haven’t heard about it

Grace Abels
·12 min read
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A person waves a rainbow flag in front of the Supreme Court on June 15, 2020, when the court ruled in Bostock v. Clayton County that a landmark civil rights law protects gay and transgender workers from workplace discrimination.
A person waves a rainbow flag in front of the Supreme Court on June 15, 2020, when the court ruled in Bostock v. Clayton County that a landmark civil rights law protects gay and transgender workers from workplace discrimination.
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This spring, multiple federal government agencies announced changes to antidiscrimination policies for LGBTQ+ people at work, at the doctor's office and in the classroom. Around the same time, a federal court ruled that restricting gender-affirming care and barring a West Virginia transgender student from playing girls’ sports violates antidiscrimination law.

Behind these policy and legal shifts is a 2020 Supreme Court case most people likely have never heard of: Bostock v. Clayton County.

Weighing cases in which employees said they were fired for being gay or transgender, the Supreme Court ruled in Bostock that firing people for their sexual orientation or gender identity amounts to "sex discrimination," which is prohibited under Title VII of the 1964 Civil Rights Act.The Bostock ruling’s impact on LGBTQ+ civil rights is proving significant. Here’s a crash course on the case, how it is shaping federal policy and being used to challenge legislation that aims to curb transgender rights.

Bostock v. Clayton County unpacked

Gerald Bostock was fired by Clayton County, Ga., for conduct “unbecoming” a county employee after joining a gay softball league. The U.S. Supreme Court ruled in his favor in 2020.
Gerald Bostock was fired by Clayton County, Ga., for conduct “unbecoming” a county employee after joining a gay softball league. The U.S. Supreme Court ruled in his favor in 2020.

In June 2020, as the world reeled from the coronavirus pandemic and protests against police brutality gripped the nation, the Supreme Court issued its 6-3 ruling in Bostock v. Clayton County. The ruling combined three Title VII lawsuits in which employees said they were fired because they were gay or transgender.

All three cases were "direct evidence" cases, said Jennifer Shinall, Vanderbilt University law professor. That means there was no dispute that the plaintiffs were fired for their LGBTQ+ identities; the question was whether that was illegal discrimination.In a landmark ruling, the Supreme Court found that it was.

Justice Neil Gorsuch authored the majority opinion, joined by Chief Justice John Roberts and the four liberal justices on the bench at the time.

Gorsuch said the 1964 Civil Rights Acts’ authors likely did not consider LGBTQ+ identities when drafting the bill. But, he wrote, even if "sex" referred only to biological sex assigned at birth, "It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."

He gave an example he said shows such discrimination: A woman being attracted to men is tolerated, but a man being attracted to men is not. "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," Gorsuch wrote. "Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids."

This ruling is binding precedent only for Title VII employment cases, and Gorsuch made it clear that it didn't address questions beyond those narrow circumstances. Nevertheless, many LGBTQ+ advocates and legal experts saw potential for the same legal logic to be applied to other laws that ban "sex discrimination," such as Title IX, which prohibits sex-based discrimination in federally funded schools; the Affordable Care Act; and even the U.S. Constitution.

How the Bostock case is shaping federal policy

On his first day in office, President Joe Biden signed an executive order directing each federal agency to review and revise its policies to ensure they reflected the Supreme Court's reasoning in Bostock.

The Biden administration’s call to expand Bostock’s reasoning to other federal laws and corresponding policy drew criticism. Nevertheless, federal agencies including the Justice Department, Department of Agriculture, Equal Employment Opportunity Commission and the Department of Health and Human Services responded, releasing guidance, and in some cases, formal regulations clarifying that "sex discrimination" includes discrimination based on gender identity and sexual orientation.

The Education Department’s recently released regulations for Title IX are one of the most controversial changes. Title IX, passed in 1972, aims to protect students against sex discrimination and harassment in classrooms and school admissions. But it is best known for changing athletics to require that women and men receive equitable participation opportunities.

On April 19, citing the Bostock case, the Education Department updated its regulations to extend sex discrimination protections to LGBTQ+ students. Although the regulations stopped short of providing guidance on the controversial issue of transgender athletes in school sports, the inclusion of LGBTQ+ identities under the nation’s leading gender-equity law prompted backlash.

House Speaker Mike Johnson, R-La., wrote on X about the rule change, "This expansion embraces radical gender theory & erases the protections women fought for."

Twenty-two state attorneys general have filed lawsuits challenging the new Title IX regulations. Some of those states have passed laws that potentially violate the new regulations.

Interpretations of Title VII and Title IX have often informed one another, said Shinall, the Vanderbilt University law professor. So, it’s not unusual that an interpretation of a term in one statute would affect the other.

But opponents are expected to argue that Bostock only applies in limited circumstances, and these changes overstep agencies’ policy-making authority.

"The bottom line is that the (Biden) Administration is interpreting Bostock more broadly than perhaps the (Supreme) Court will ultimately accept," Duke University law professor Doriane Lambelet Coleman told PolitiFact in an email.

Title VII is a general nondiscrimination rule, but other statutes, such as Title IX, make exceptions for single-sex accommodations such as sex-segregated living facilities and single-sex sports teams.

It’s unclear how the Supreme Court will apply Bostock’s logic to those statutory exceptions — such as whether barring a transgender girl from playing on a girls’ sports team is unlawful discrimination.

Issues of privacy, safety, fairness or equal opportunity could figure in deciding how nondiscrimination rules should apply beyond employment.

"I think that the margins of Bostock are going to be subject to a tremendous amount of litigation," said Elana Redfield, federal policy director at the Williams Institute, a think tank at the UCLA School of Law. "As the Biden administration continues to examine the applicability of Bostock in other contexts, that's going to provide new testing ground for the scope of the ruling."

How Bostock is being used in legal challenges to anti-trans laws

Equality Texas displays a banner in the Capitol Rotunda reading "let trans kids grow up" at a May 2, 2023, protest.
Equality Texas displays a banner in the Capitol Rotunda reading "let trans kids grow up" at a May 2, 2023, protest.

The Bostock case also has been cited by individual plaintiffs in lawsuits nationwide that challenge laws restricting transgender access to bathrooms, school sports teams and gender-affirming care.

Most recently, the 11th U.S. Circuit Court of Appeals applied Bostock’s reasoning to a case in which a Houston County, Georgia, sheriff’s department employee alleged discrimination because the health insurance policy would not cover her gender-affirming surgery. The court ruled in her favor, writing, "Applying Bostock’s reasoning to the facts in this case, we conclude that the district court was correct in finding that the (policy) violated Title VII."

Other lower courts are also weighing whether Bostock’s reasoning applies to other federal laws that prohibit sex discrimination or the Constitution’s equal protection clause.

Several circuit courts have found that Bostock’s LGBTQ+ protections apply to other federal statutes, and in some cases, the Constitution’s 14th Amendment equal protection clause.

Most recently, the U.S. Court of Appeals for the 4th Circuit ruled in both a school athletics case and a case about access to gender-affirming care that discrimination against transgender people constituted illegal discrimination under federal law, and in the case of health care, constitutional law.

But some circuit courts have decided differently. The U.S. Court of Appeals for the 6th Circuit, in the case LW v. Skrmetti, said Bostock was limited to Title VII and does not apply to the Constitution.

Most lawsuits make a two-part argument, alleging discrimination under federal laws such as the Affordable Care Act or Title IX, and that certain state laws violate the Constitution's 14th Amendment.

"In all of those cases to some degree, the question of Bostock’s applicability beyond Title (VII) is at issue," said Joshua Block, an attorney for the American Civil Liberties Union‘s LGBTQ & HIV Project. The ACLU is serving as legal representation for transgender plaintiffs in several of these cases.

The Supreme Court has declined in the past to review cases that wrestle with similar issues. But given the number of cases related to Bostock, and disagreement among the circuit court rulings, experts wonder if the Supreme Court will have to resolve the issue.

"The court is always more likely to take cases with clean facts that allow the court to only decide one issue and decide as narrowly as possible," Shinall said.

Our sources

This article originally appeared on Austin American-Statesman: Little-known Supreme Court case is reshaping LGBTQ+ rights