Since the Supreme Court protected transgender people from discrimination, ‘The backlash has been brutal’
By Joan Biskupic, CNN Chief Supreme Court Analyst
(CNN) — When the Supreme Court, led by Justice Neil Gorsuch, ruled in 2020 that federal law protected transgender workers from discrimination, the justices appeared to launch a new era of rights for a historically shunned group.
LGBTQ advocates believed the core principle of Bostock v. Clayton County – that bias against transgender people amounts to unlawful sex discrimination – would extend beyond the workplace.
Lower court judges, in fact, soon began relying on the Bostock decision to protect transgender individuals in educational settings, such as to ensure access to bathrooms of choice and desired sports teams. In 2021, the Biden administration cited Bostock as it imposed rules protecting trans individuals from discrimination in health care.
But the Bostock foundation was shaky at the Supreme Court, as the majority grew more conservative. At the same time, Republican-controlled states increasingly adopted legislation diminishing transgender rights, in education and public facilities, healthcare and athletics.
“It had great potential as a legal matter and, more broadly, as a political matter,” said Georgetown law professor David Cole, “in recognizing that when we discriminate against people because they are transgender we are, in fact, engaging in sex discrimination and enforcing sex-based stereotypes.”
Cole, a former national legal director of the ACLU who argued on behalf of a transgender woman in the 2020 case, said Bostock’s repercussions have cut in two directions.
Bostock has provided coverage for trans individuals on the job. Yet, Cole, referring to the politicking and legislative efforts against trans rights, said, “The backlash has been brutal.”
Last June, the Supreme Court turned away from Bostock when it upheld state bans on hormone treatment and other medical care for trans youths. The 6-3 majority rejected arguments that they were a form of sex discrimination and declared the bans instead tied to age and medical use. Dissenting justices contended the new ruling, in United States v. Skrmetti, simply could not be squared with Bostock.
“As was true in Bostock, then,” they wrote, “the law deprives minors of medical treatment based, in part, on sex.”
Now, in one of the most anticipated disputes of the justices’ current session, the court will hear a pair of cases on Tuesday over whether states can keep trans women from participating on female sports teams without violating federal anti-bias statues or the Constitution’s guarantee of equal protection of the law.
“Bostock crystallized an understanding for the populus, both on rights and responsibilities under the law,” said law professor Kara Ingelhart, director of the LGBTQI+ Rights Clinic at Northwestern. “Then Skrmetti created confusion and a lot of mistrust.”
Skrmetti changed the rules
The Skrmetti case revealed a shifting approach and mindset at the court.
The opinion was written by Chief Justice John Roberts, who had been a vote for transgender rights in the 2020 case.
Joining the majority was also Gorsuch, Bostock’s author. He had not asked a single question during the oral arguments, which was highly unusual, and then he wrote no separate opinion to explain how he was reconciling the two decisions.
Justice Amy Coney Barrett, who had joined the bench in late 2020 after Bostock, wrote separately in the 2025 case. Her approach would have directly undercut the potential reach of Bostock, rather than avoid the issue as Roberts’ majority opinion had.
In her concurring statement, joined only by Justice Clarence Thomas (a Bostock dissenter), Barrett said she would have ruled that transgender individuals merit no heightened protection against discrimination. She also foreshadowed the upcoming debate over trans participation in sports.
If laws singling out transgender individuals require heightened judicial scrutiny, “then the courts will inevitably be in the business of closely scrutinizing” a vast array of legislation,” she wrote. “Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy – ranging from access to restrooms to eligibility for boys’ and girls’ sports teams.”
During oral arguments in Skrmetti, Barrett questioned whether a pattern of government action against trans people existed: “(At) least as far as I can think of, we don’t have a history of de jure discrimination against transgender people, right? … Is there a history that I don’t know about …?”
Justice Sonia Sotomayor, who took the lead for the dissenters in last year’s case, wrote, “Transgender people have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence.”
She added, with a reference to Barrett, that “those searching for more evidence of de jure discrimination against transgender individuals, need look no further than the present.”
The Trump administration, Sotomayor added, “has started expelling transgender servicemembers from the military and threatening to withdraw funding from schools and nonprofits that espouse support for transgender individuals.”
President Donald Trump, who campaigned against trans rights, signed an executive order on his first day back in the White House called, “Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.” The order said, “It is the policy of the United States to recognize two sexes, male and female. These sexes are not changeable … .”
In early challenges to Trump’s policies targeting trans rights, the Supreme Court has sided with the president.
The conservative majority permitted the administration’s new ban on trans people in the military and its elimination of a decades-old US passport option for trans travelers who would, rather than using their sex at birth, designate their gender identity as “M,” “F,” or “X.”
In the latter case, the majority minimized an individual’s interest in gender identity, writing in an unsigned opinion, “Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”
Student athlete case likely to show limits of Bostock
The dispute to be heard Tuesday is likely to further show the limits of the Bostock ruling.
Defending their bans on transgender women in female sports, state officials from Idaho and West Virginia argue schools should be able to separate athletes based on their biological sex. They say it is simply unfair and unsafe to let individuals who were born male compete with females.
The states, joined by the Trump administration, contend Bostock’s principles were confined to the employment context covered by Title VII of the 1964 Civil Rights Act.
The 2020 Bostock case indeed centered on Title VII, yet such cases in the past have often extended to other realms of anti-discrimination policy and constitutional guarantee of equality. And dissenting justices themselves predicted “far-reaching consequences.” They forewarned that Bostock’s reasoning could eventually permit trans women to participate on female school sports teams.
The dispute arose from three combined lawsuits, two brought separately on behalf of two gay men (Gerald Bostock and Donald Zarda) fired because of their sexual orientation. The third case began when a transgender woman (Aimee Stephens) lost her job.
At issue was whether Title VII’s dictate that it is unlawful to fire an individual “because of … sex,” covered LBGTQ workers.
Writing for the majority, the conservative Gorsuch said: “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.”
Gorsuch, Trump’s first appointee to the high court, acknowledged that when the law passed in 1964, “Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result.”
But, he said, Title VII’s rule is “straightforward”: “An employer violates Title VII when it intentionally fires an individual employee based in part on sex,” and “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Justice Samuel Alito, writing the lead dissent, disputed the majority’s interpretation and said, “What the Court has done today – interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity – is virtually certain to have far-reaching consequences. Over 100 federal statutes prohibit discrimination because of sex.”
Alito warned that Bostock could also “exert a gravitational pull in” disputes brought under the Fourteenth Amendment’s guarantee of equal protection. But that did not happen in last year’s Skrmetti case.
Chief Justice Roberts said the laws prohibiting puberty blockers and hormone therapy for youths’ transgender care involved age and medical treatment and did not turn on differences in sex. He said the court could avoid addressing whether Bostock’s reasoning extends beyond the limits of the workplace and Title VII.
“The problem with the majority’s argument,” Sotomayor wrote for liberal dissenters, “is that the very ‘medical purpose’ (the law) prohibits is defined by reference to the patient’s sex. Key to whether a minor may receive puberty blockers or hormones is whether the treatment facilitates the ‘medical purpose’ of helping the minor live or appear ‘inconsistent with’ the minor’s sex.”
The Idaho and West Virginia cases raise another set of nuanced dilemmas, in lawsuits brought by young transgender women seeking to compete on a college team and on a middle-school team.
The cases test whether state exclusions on trans women, now adopted in half the states, violate the Fourteenth Amendment or Title IX of the Education Amendment of 1972, which forbids sex discrimination in school programs that receive federal funding.
As was evident in the Skrmetti case involving transgender minors, such controversies involving young people generate greater concern than those revolving around adults. The school sports debate shadowed the trans medical care case.
“If you prevail here,” Justice Brett Kavanaugh had asked a lawyer seeking to bolster transgender protections, “what would that mean for women’s and girls’ sports in particular?”
“Would transgender athletes have a constitutional right, as you see it, to play in women’s and girls’ sports, basketball, swimming, volleyball, track, et cetera, notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes …?”
In the end, Kavanaugh, who’d dissented in the Bostock case, became part of the new majority to uphold the restrictions on treatment for trans youth.
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