As communities across the country debate the rights of transgender athletes, legal experts are divided on what the future holds for them.
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 sporting context raises unique legal questions and that the 2020 ruling doesn’t really contain any clues.
“Gorsuch’s 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, DC, in an email this week. .
This past case, Bostock v. Clayton County, was centered on Title VII of the Civil Rights Act. The court was asked to decide whether its ban on sex discrimination offered protections to gay and transgender workers.
In a surprise 6-3 ruling, Judge 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 would not have expected this. at.
“An employer who fires an individual for being gay or transgender is firing that person for traits or actions they would not question in members of a different sex. Gender plays a necessary and indisputable role in the decision, exactly what Title VII prohibits,” he wrote in the majority opinionwhich was released on June 15, 2020.
As Anderson noted, the opinion attempted to limit the application of the ruling by stating that battles over how to define “sex discrimination” in other contexts should have their own day in court.
“Employers are concerned that our decision will extend beyond Title VII to other federal or state laws that prohibit sex discrimination,” Gorsuch wrote. “But none of these other laws are before us; we have not benefited from contradictory tests on the meaning of their terms, and we do not prejudge such a question today.
Despite these lines, the 2020 ruling fueled significant changes beyond labor law. For example, just hours after President Joe Biden took office, his administration cited Bostock to justify a Executive Decree expand protections against LGBTQ discrimination.
“The ordinance explains that almost all statutory prohibitions of ‘sex discrimination’ also cover discrimination based on sexual orientation and gender identity. For this reason, he 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 era.
The order specifically mentioned Title IX, noting that “the Biden administration wants transgender athletes to have the same protections that Title IX originally afforded 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.
Employment policy has long served as a guide in discussions of other related rules, she said.
“Traditionally, courts and federal agencies look to Title VII to understand how to interpret sex discrimination,” she said.
For this reason, Maril believes the Supreme Court’s decision in Bostock is deeply relevant to today’s debates about the rights of transgender athletes. It will influence judges if and when they hear a case involving bans on transgender women participating in women’s sports, she said. (Several such cases are currently pending in lower courts, including in Utah.)
“If the law is enforced faithfully the way it should be, I don’t think the bans should survive,” she said.
But not all jurists share Maril’s point of view. Anderson is among those who think a potential Supreme Court case on transgender athletes would raise more complicated issues than the past employment discrimination case.
“A certain simplistic logic at the heart of Bostock would imply that all single-sex sports ‘discriminate’ on the basis of gender. I doubt the court will adopt this simplistic logic, as it may already recognize that there are bodily differences that make a difference when it comes to physical competition, and therefore upholding equality does not require embracing sameness when it comes to sport “, did he declare.
The discrepancy between Maril and Anderson’s comments helps illustrate why the debates over transgender athletes are far from resolved. As LGBTQ rights advocates work to build on their important 2020 Supreme Court victory, others are working just as hard to limit the application of the Bostock decision.