Jurisprudence

The Supreme Court Just Tanked Trump’s Anti-Trans Agenda

The administration has spent years crafting a multipronged assault on LGBTQ rights.

Trump shakes Gorsuch's hand while Brett Kavanaugh stands by.
President Donald Trump greets Supreme Court Justice Neil Gorsuch ahead of the State of the Union address in February. Mario Tama/Getty Images

Upon taking office, President Donald Trump launched an all-out war against the rights of LGBTQ people—particularly transgender Americans. His administration has used every tool at its disposal to rewrite federal civil rights laws to abolish protections for gay, bisexual, and transgender people. And on Monday, in one fell swoop, the Supreme Court blew up this yearslong effort by obliterating the legal theory behind Trump’s crusade.

The Trump administration based its theory on an extremely narrow definition of the word sex. Many civil rights laws outlaw discrimination “because of sex,” and the Obama administration argued that those protections encompass transgender people as well. The Obama administration issued a slew of rules and regulations prohibiting anti-trans discrimination in health care, education, employment, and more. Moreover, under President Barack Obama, the Equal Employment Opportunity Commission declared that anti-gay discrimination qualifies as sex discrimination, allowing the agency to begin representing gay and bisexual people who faced discrimination at work.

Once Trump took office, he rewarded loyal social conservatives with a push, coordinated by the White House, to wipe out these LGBTQ-friendly regulations. Then–Attorney General Jeff Sessions reversed the Justice Department’s determination that the Civil Rights Act safeguards transgender employees. Ben Carson, secretary of housing and urban development, is proposing a rule that would let homeless shelters discriminate against transgender people. Education Secretary Betsy DeVos repealed a rule allowing students to use the bathroom that aligns with their gender identity at federally funded schools. More recently, her agency announced it will defund schools that prohibit discrimination against transgender athletes—meaning DeVos will not only condone anti-trans school policies, but demand them. And on Friday, director of the Office of Civil Rights at the U.S. Department of Health and Human Services Roger Severino finalized a rule that would let medical providers and insurers deny treatment and coverage to transgender patients.* Federal courts are now all but obligated to invalidate these measures.

In each case, the Trump administration insisted it was merely applying the correct definition of sex. The Civil Rights Act, it noted, does not contain the words sexual orientation or gender identity. Neither does the Affordable Care Act, the Fair Housing Act, or Title IX. The Obama administration claimed it was impossible to discriminate against transgender people without taking their sex into account—that is, without punishing them for failing to conform to the sex they were assigned at birth. Similarly, the EEOC claimed it was impossible to discriminate against gay or bisexual people without taking their sex into account—that is, without faulting them for having a partner of the same sex. The Trump administration rejected these interpretations, instead proclaiming that sex merely means “biological sex” and does not, on its own, cover LGBTQ people.

Trump’s Department of Justice presented its theories squarely to the Supreme Court. And in Monday’s Bostock v. Clayton County ruling, the court rejected them by a 6–3 vote. It is “impossible to discriminate against a person for being homosexual or transgender,” Justice Neil Gorsuch wrote for the majority, “without discriminating against that individual based on sex.” Whenever someone penalizes an LGBTQ person for being LGBTQ, the victim’s “sex plays an unmistakable and impermissible role.”

Bostock only deals with Title VII of the Civil Rights Act of 1964. But its reasoning applies to other laws that forbid sex discrimination. As Justice Samuel Alito helpfully pointed out in his furious dissent, more than 100 federal statutes prohibit discrimination “because of sex.” Alito complained that Gorsuch’s “radical decision” could affect “some of these laws,” and he is absolutely right. There is no good reason to hold that “sex discrimination” means one thing in the Civil Rights Act and something else entirely in every other context. If the Supreme Court had held that the meaning of sex is ambiguous, these agencies’ definition of the term would have at least received judicial deference. Gorsuch, however, foreclosed that possibility by clarifying that “no ambiguity exists” about the application of sex discrimination laws to LGBTQ people.

The Trump administration was already defending its anti-trans rules in court. Now it will probably lose every case. Consider the ACA, which included a little-noticed yet hugely important provision outlawing sex discrimination in health care. Obama’s HHS interpreted this rule to protect transgender patients. Trump’s HHS, by contrast, issued a new “denial of care” rule letting medical providers refuse to treat transgender patients. The agency had awful timing: It issued the rule just three days before the Supreme Court handed down Bostock and actually acknowledged that the decision would “likely have ramifications” for the ACA. Indeed it does. Bostock fatally undermines the rule’s very premise, that a ban on sex discrimination does not encompass transgender people.

It is, of course, possible to defend discrimination in different contexts. Trump’s HHS, for example, tried feebly to explain why anti-trans health care discrimination might be legal even if anti-trans employment discrimination were not. But all it could muster was a vague assertion that “the binary biological character of sex (which is ultimately grounded in genetics) takes on special importance in the health context.” What does that mean? Is HHS arguing doctors have a better reason to discriminate against trans people than employers, because genetics? Who knows? The Trump administration obviously embarked upon its anti-trans campaign under the assumption that SCOTUS would vindicate its legal theory. And in Bostock, the court refused to play ball.

Monday’s decision does not end all federal discrimination against LGBTQ people. There are still plenty of questions about transgender people’s rights under the Constitution rather than federal statutes. For instance, can the president, as commander in chief, ban transgender troops from the military? (The Supreme Court’s five conservatives let Trump’s ban take effect in 2019.) Can states forbid transgender people from updating their birth certificates? These disputes revolve around the Constitution’s guarantee of equal protection, not any federal law. It is possible that justices like Gorsuch will maintain a cramped view of constitutional equality for LGBTQ people.

Under federal civil rights law, though, this debate is as good as settled. Where Congress outlawed sex discrimination, it also outlawed anti-LGBTQ discrimination. The Supreme Court has validated a definition of bias broad enough to sweep in gender and sexual minorities. In doing so, the justices eradicated the Trump administration’s lone legal justification for its anti-LGBTQ offensive.

Correction, June 15, 2020: This piece originally misidentified Roger Severino as the Health and Human Services secretary. He is the director of the Office of Civil Rights at the department.

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