SCOTUS just undid years of Trump anti-LGBTQ actions, and other thoughts

Jun 15

Written By Owner

In a historic ruling today, the Supreme Court ruled 6-3 that discrimination based on sexual orientation and gender identity or transgender status are sex discrimination.

I wanted to offer some very tentative thoughts about the implications of this ruling across several areas of federal and state policy - but first, a summary of what the Court did.

What did the Supreme Court actually say?

There is a lot of textual analysis and deconstructing of arguments packed into Justice Gorsuch’s opinion for the Court, but here are the key takeaways:

Page 9: “An individual’s homosexuality or transgender status is not relevant to employment decisions.That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Page 10: “[H]omosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”

Page 19, with respect to anti-transgender bias: “By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”

Page 33: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

To get there, the Court sets forth three principles from prior Title VII cases:

“First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it.”

“Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action.”

“Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.”

Applying these well-established principles, the Court concludes that anti-LGBTQ bias is necessarily “on the basis of sex,” and that to argue otherwise one “must scramble to justify deploying a stricter causation test for use only in cases involving discrimination based on sexual orientation or transgender status.”

Importantly the Court said that regardless of how you define “sex,” anti-LGBTQ discrimination is sex discrimination.The Court assumed for purposes of argument but did not decide that “sex” in Title VII means something like “biological sex” or sex assigned at birth. It made clear that “nothing in our approach to these cases turns on the outcome of the parties’ debate” about the definition of the word “sex.” Even if it made any difference, this assumption is not binding on future cases.

Notably, some are suggesting Gorsuch planted some landmines here that could subtly help future cases seeking to roll back the administrative state. Certainly, this is a much different opinion than we would have seen from, say, Justice Ginsburg or Justice Sotomayor if they had written it.

What the dissenters said

Justices Alito, Thomas, and Kavanaugh dissented.

Alito’s long dissent, joined by Thomas, essentially walks through each point in the majority opinion and says, “Nuh-uh!”

Alito included four appendices to his dissent:

Appendix A: Dictionary entries from the 1960s
Appendix B: Dictionary entries since 2000
Appendix C: List of federal sex discrimination laws
Appendix D: Forms documenting that the military banned queer people at the time Title VII was passed.

He also scaremongered about the downstream effects, a la Scalia in Lawrence v. Texas. Alito trotted out the usual fear arguments about bathrooms and locker rooms, shelters, school sports, professional sports, teaching at religious schools, health insurance coverage, misgendering in schools and the workplace, and prisoner rights.

Kavanaugh’s shorter dissent, joined by no one, focused on an argument that anti-LGBTQ bias may be sex discrimination in a literal sense, but not an ordinary sense, because, well, common sense! “Both common parlance and common legal usage treat sex discrimination and sexual orientation discrimination as two distinct categories of discrimination—back in 1964 and still today.”

Kavanaugh wrote his dissent only about sexual orientation because some of the claims he makes in his opinion are indisputably wrong as it relates to gender identity.

For example, he points to OPM regulations as defining SO and sex separately, but they actually do define GI within sex discrimination!
He makes the same claim about state laws, but the first one he cites, California, originally defined gender identity within sex and only later separated it out.
And most tellingly of all, he emphasizes that federal courts had overwhelmingly rejected SO claims until just a few recent exceptions - that’s an exaggerated claim for SO, but completely untrue for GI.

Kavanaugh claims that “this opinion’s legal analysis of discrimination on the basis of sexual orientation would apply in much the same way to discrimination on the basis of gender identity,” which is simply not true. Of course, his analysis is wrong regardless, but his framing choice is particularly dishonest.

The implications of this ruling are huge, though contested.

Opponents of equality will make three basic arguments to try to limit the impact of this ruling. None of these arguments have merit, but they will be hammered relentlessly by anti-LGBTQ organizations and likely the Trump Administration. Don’t be fooled.

Does this apply outside of employment? Almost certainly YES. Opponents will argue that this decision doesn’t apply to other federal sex discrimination laws. Justice Alito’s dissent included a list of dozens of federal sex discrimination laws, including those broadly covering education, housing, and health care. While SCOTUS technically didn’t speak to these other laws, there is no serious argument to distinguish them based on what the Court has said today.
Does this apply to all forms of anti-trans discrimination? Likely YES. Opponents will argue that most forms of anti-trans discrimination aren’t really discrimination. In other words, opponents will argue that today’s decision only applies to a “transgender need not apply” policy, not to anything else. So, you can kick trans people out of work, housing, school, or health care, if you say the reason is because of concerns about bathrooms, locker rooms, sports, or insurance coverage. Courts have rejected this logic again and again, and nothing in today’s decision supports it.
Does this apply to people who discriminate based on religious beliefs? Likely YES, at least when it comes to employment. Opponents will argue that religious exemptions provide a pass to ignore the law when it comes to LGBTQ people. As Justice Gorsuch points out, Harris Funeral Homes made this argument in the court below, lost, and abandoned. Title VII has a religious exemption, and it’s only for religious organizations hiring based on religion - not based on sex. US public opinion and decades of case law clearly reject the idea that personal beliefs give you a pass to fire or evict someone because of who they are. Religious exemptions in other contexts will continue to be a hard-fought issue, with SCOTUS set to hear arguments this fall on whether religious groups can defy state and local nondiscrimination laws by refusing to work with prospective foster parents based on their being LGBTQ or of a different religion.

Technically, the Supreme Court did not decide any of these questions today, but opponents’ arguments on them are very weak and would create huge anomalies in the law.

What does this mean for the Trump Administration’s actions in this area?

Here’s my tentative prognosis:

Because of this ruling, the rule put out by HHS last week is now meaningless with regard to anti-LGBTQ bias in health care. The HHS rule sought to make several other harmful changes to protections for marginalized communities in health care, which are currently being challenged in court.

Because of this ruling, the Trump Administration’s position on Title IX and trans students is now meaningless, and schools should ignore it and protect trans students.

Because of this ruling, Connecticut leaders in particular should reject empty threats to their federal funding that seek to force them to kick students out of school sports for being transgender.

Because of this ruling, the proposed rule expected soon from HUD is largely meaningless, but will still spread fear and confusion and must be stopped.

Because of this ruling, HHS and ED must immediately resume accepting and investigating complaints of discrimination against transgender people. Legal organizations should resume filing complaints with these agencies, though never to the exclusion of pursuing other remedies on behalf of their clients.

Because of this ruling, HHS, ED, DOJ, DOL, HUD, or other agencies may be tempted to put out rules or guidance attempting to narrowly define anti-LGBTQ discrimination. We will need to watch them as closely as ever.

Because of this ruling, the Trump Justice Department is sure to double down on filing briefs seeking extremely broad religious exemptions from civil rights laws. Likewise, the Labor Department will likely forge ahead with its attempt to broaden EEO exemptions for federal contractors.

Because of this ruling, the Trump trans military ban is on shakier ground, as the Supreme Court has made clear that it must be subject to heightened scrutiny. Administration officials will still seek to lean on the doctrine of military deference, but that just got harder.

Because of this ruling, the Veterans Health Administration trans surgery exclusion is also on shaky ground, as the Supreme Court has made clear that it must be subject to heightened scrutiny. This regulation isn’t currently subject to legal challenge, but it could well be in the year to come if there is no action to change it.

Because of this ruling, the State Department’s binary-only passport policy is also on shakier ground as it considers whether it wants to continue denying Dana Zzyym’s passport and fighting their case.

Despite this ruling, some anti-LGBTQ Trump actions won’t be directly affected, such as rollbacks to federal data collection in areas like the National Crime Victimization Survey and the Adoption and Foster Care Analysis and Reporting System.

What does this mean for the Equality Act?

Today’s ruling makes clear that anti-LGBTQ discrimination is illegal nationwide when it comes to employment, and probably also when it comes to education, housing, health care, and some federal programs. But that protection isn’t comprehensive, and without further action it may continue not to be well-understood.

We still need Congress to pass the Equality Act because it:

Would make crystal clear that anti-LGBTQ bias in employment, education, housing, and health care are illegal nationwide.
Would extent protections against sex discrimination in public spaces and services and all federal programs for the first time.
Would expand protections for everyone, including from race discrimination, for the first time to cover retail, transportation, and other businesses.
Would put to bed the pretext of “bathroom concerns” as a cover for a policy of “trans people need not apply.”

Neither today’s ruling nor the Equality Act are the ultimate brass ring - there is a lot more to do in the face of disproportionate unemployment, poverty, homelessness, incarceration, HIV, poor health, suicidality, and violent victimization among transgender people. The history of all civil rights laws shows those problems don’t melt away when we make it illegal to discriminate in jobs or schools - that’s just the beginning.

Curing these grave disparities will require much more, including making proactive investments in economic opportunities for marginalized transgender people - and reimagining public safety as we know it.

What does this mean for anti-transgender state laws and policies?

Because of this ruling, state Medicaid and employee health plan exclusions will likely continue to fall under the ACA and Equal Protection Clause.

Because of this ruling, Idaho HB500 and HB509 are on very shaky ground under the Equal Protection Clause and Title IX.

Because of this ruling, other states’ restrictions on ID documents are also more likely to fall under the Equal Protection Clause.

Because of this ruling, advocacy have a powerful new argument against future anti-trans legislation.

What does this mean for the fight for Black LGBTQ lives and against police terror?

Today’s SCOTUS decision provides new tools in combating police and prison violence and abuse against LGBTQ people.

Constitutional claims against any police or prison practice that discriminates against LGBTQ people just got a big boost.
Federal grants under laws like VAWA, JJDPA, and the Safe Streets Act also now prohibit anti-LGBTQ bias, although those laws don’t allow individual lawsuits. Instead, they have to be enforced by DOJ, or grantees have to be persuaded to do the right thing.

Obviously, anti-discrimination claims are just a small piece of the larger conversation about defunding/divesting from policing and ending police violence and mass incarceration. Still, it’s important to recognize that they have a modest but important role to play.

How the Court discussed Aimee Stephens and her gender

Sadly, Aimee died on May 12, 2020, just a month before the Supreme Court would rule on her case. It’s notable that despite invitations in some of the briefs, none of the Justices were willing to disrespect Aimee’s memory by misgendering her.

From the Court’s opinion:

Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to “live and work full-time as a woman” after she returned from an upcoming vacation. The funeral home fired her before she left, telling her “this is not going to work out.”

Notably, all the opinions referred to Aimee using female terms, without comment.

This was not at all a foregone conclusion, given the very different and cruel approach taken by some of Trumps nominee’s to the federal bunch.

Some examples of areas where anti-LGBTQ discrimination is now very likely prohibited by statute

Justice Alito notes that “Over 100 federal statutes prohibit discrimination because of sex,” and even includes a whole appendix listing them. Some may try to distinguish these other laws, but these arguments would be very weak - they could persuade a very hard-right leaning judge here and there, but ultimately aren’t likely to prevail.

Federal laws prohibit sex discrimination in several commercial contexts and many federally funded grant programs, including in the following areas. Many of these protections only apply where an entity takes federal funds, but often that includes most or all relevant entities.

Health care, including insurance, mental health, and substance abuse
Public schools and any schools that take federal student aid
Housing, including most shelters
Domestic violence and victims’ services programs
Police, corrections, and juvenile justice programs
Disaster relief
TANF, heating assistance
Airline and airport services
Head Start and many child care and child development programs
Public transportation
Public works projects

Here’s a selection of key statutes from Justice Alito’s Appendix C.

Probably due to the search terms used by his clerks, he left out a few, importantly: 42 U.S.C. § 18116(a) (Nondiscrimination in health programs and activities).

34 U. S. C. §11133(a)(16) (Juvenile Justice and Delinquency Prevention; State Plans)
34 U. S. C. §12161(g) (Community Schools Youth Services and Supervision Grant Program)
34 U. S. C. §12361 (Violent Crime Control and Law Enforcement; Civil Rights for Women)
34 U. S. C. §20110(e) (Crime Victims Fund; Administration Provisions)
34 U. S. C. §50104(a) (Emergency Federal Law Enforcement Assistance)
40 U. S. C. §14702 (Appalachian Regional Development; Nondiscrimination)
42 U. S. C. §290cc–33(a) (Projects for Assistance in Transition From Homelessness)
42 U. S. C. §290ff–1(e)(2)(C) (Children With Serious Emotional Disturbances; Requirements With Respect to Carrying Out Purpose of Grants)
42 U. S. C. §295m (Public Health Service; Prohibition Against Discrimination on Basis of Sex)
42 U. S. C. §296g (Public Health Service; Prohibition Against Discrimination by Schools on Basis of Sex)
42 U. S. C. §300w–7(a)(2) (Preventive Health and Health Services Block Grants; Nondiscrimination Provisions)
42 U. S. C. §300x–57(a)(2) (Block Grants Regarding Mental Health and Substance Abuse; Nondiscrimination)
42 U. S. C. §603(a)(5)(I)(iii) (Block Grants to States for Temporary Assistance for Needy Families)
42 U. S. C. §708(a)(2) (Maternal and Child Health Services Block Grant; Nondiscrimination Provisions)
42 U. S. C. §3123 (Public Works: Discrimination on Basis of Sex Prohibited in Federally Assisted Programs)
42 U. S. C. §3604 et seq. (Fair Housing Act)
42 U. S. C. §5151(a) (Nondiscrimination in Disaster Assistance)
42 U. S. C. §5309(a) (Community Development; Nondiscrimination in Programs and Activities)
42 U. S. C. §6709 et seq. (Public Works Employment; Sex Discrimination; Prohibition; Enforcement)
42 U. S. C. §8625(a) (Low-Income Home Energy Assistance; Nondiscrimination Provisions)
42 U. S. C. §9821 (Community Economic Development; Nondiscrimination Provisions)
42 U. S. C. §9849 (Head Start Programs; Nondiscrimination Provisions)
42 U. S. C. §9918(c)(1) (Community Services Block Grant Program; Limitations on Use of Funds)
42 U. S. C. §10406(c)(2)(B)(i) (Family Violence Prevention and Services; Formula Grants to States)
42 U. S. C. §12635(a)(1) (National and Community Service S2635(a)(1) (National and Community Service State Grant Program)
49 U. S. C. §5332(b) (Public Transportation; Nondiscrimination)
49 U. S. C. §40127 (Air Commerce and Safety; Prohibitions on Discrimination)
49 U. S. C. §47123(a) (Airport Improvement; Nondiscrimination)

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