At the start of his Wednesday order blocking a West Virginia law that prohibits transgender girls and women from playing many school sports, U.S. District Judge Joseph Goodwin observed: “A fear of the unknown and discomfort with the unfamiliar have motivated many of the most malignant harms committed by our country’s governments on their own citizens.” He may have understated the problem. The tidal wave of anti-transgender state laws enacted in 2021 are motivated not just by fear, but also by sheer hatred toward gender minorities—a hostility rooted in a rigid conception of sex that aligns with neither scientific fact nor lived experience. So far, most federal judges who have assessed these laws see that discriminatory impulse. But the battle will soon reach the Supreme Court once again. And it is far from clear that a majority of the justices, some of whom share this anti-trans animus, are prepared to halt this nationwide assault on trans equality.
The hateful legislation currently emerging from Republican-controlled state legislatures across the country all has the same goal: the degradation and, ultimately, disappearance of transgender people. These bills come in several different flavors. First, there are measures that seek to deny trans people access to the correct bathroom, often in schools. Second, there are laws that attempt to stop trans women and girls from participating in school sports. Third, there are regulations that seek to deny trans people identification documents, including birth certificates, that align with their gender identity. Fourth, there are measures that attempt to outlaw transition-related medical care for minors. Taken together, these bills endeavor to drive transgender out of public life, forbid them from living authentically, and, in the end, preventing many from transitioning to their true gender identity.
None of these laws arose organically out of a mass movement against transgender Americans. It was, rather, manufactured by anti-LGBTQ groups working hand in glove with Republican politicians in search of a new wedge issue. The law firm Alliance Defending Freedom, which supports imprisonment as a penalty for same-sex conduct, led the charge; ADF’s attorneys drafting the model legislation that countless Republicans copied, pasted, and pushed onto the statehouse floor. These lobbyists, along with their GOP allies, focused primarily on transgender youth, passing off their campaign as a compassionate effort to “protect children.”
Politically, this scheme worked wonders: More than a dozen states have passed anti-trans laws this year so far, with scores more in the offing. Legally, it’s on weaker footing. In 2020’s Bostock v. Clayton County, the Supreme Court ruled that discrimination on the basis of “transgender status” is a form of sex discrimination. Bostock involved the Civil Rights Act of 1964, but its reasoning applies to all laws that prohibit discrimination on the basis of sex. It also implicates the 14th Amendment: The Supreme Court has held that state-sponsored sex discrimination generally violates the equal protection clause. Thus, anti-trans laws are, at a minimum, constitutionally suspect. Under President Joe Biden and Attorney General Merrick Garland, the Department of Justice has adopted this view, urging courts to strike down state measures restricting trans rights.
So far, most lower court judges to consider the issue have recognized Bostock’s ramifications for transgender rights. Goodwin, the federal judge in West Virginia, cited the decision when explaining why Title IX’s bar on sex discrimination in education protects transgender students’ ability to play school sports. He also found that West Virginia’s law violates the equal protection clause because “discrimination against transgender people is inherently based in sex.” Goodwin’s ruling flowed from an August decision by the 4th U.S. Circuit Court of Appeals finding that discrimination against transgender students violates both Title IX and the equal protection clause. (West Virginia sits within the 4th Circuit.)
Similar anti-trans laws have met the same fate. On Wednesday, U.S. District Judge James M. Moody blocked Arkansas’ prohibition against transition care for minors. Last August, U.S. Magistrate Judge Candy Dale struck down an Idaho law that prevented transgender people from correcting their birth certificates. Ten days later, U.S. District Judge David Nye—a Donald Trump nominee—halted Idaho’s ban on transgender participation in school sports. The list of transgender legal victories goes on and on.
There is, however, trouble ahead. Earlier this month, a three-judge panel for the 11th U.S. Circuit Court of Appeals took the unusual step of revising its ruling in Adams v. School Board of St. John’s County, Florida. Initially, the panel had issued a sweeping decision: By a 2–1 vote, it held that a school board violated both Title IX and the equal protection clause when it barred a transgender boy from the boys’ bathroom. It also provided three separate, independent reasons why discrimination against transgender students runs afoul of the equal protection clause.
Nearly a year later, the panel retracted its first decision and replaced it with a second, much narrower one. This time, the court did not reach the Title IX question. It also found just one equal protection violation rooted in the school’s uniquely “arbitrary” policy, a minimalist holding that does not establish a constitutional right for all trans students to use the proper bathroom. The panel majority explained that it had whittled down its opinion “in an effort to get broader support among our colleagues.” Translation: The majority did not want the Republican judges on the 11th Circuit to overrule their decision en banc.
It remains to be seen whether the 11th Circuit’s conservatives will accept the panel majority’s compromise. In the end, though, most if not all of these cases are heading toward the Supreme Court—and there are reasons to fear that SCOTUS will not follow through on the promise of Bostock. Most obviously, that decision was 6–3, but one justice in the majority, Ruth Bader Ginsburg, has been replaced by Amy Coney Barrett, who will likely vote against LGBTQ rights. That means the three remaining liberals will need both Chief Justice John Roberts and Justice Neil Gorsuch to form a majority. There’s no margin for error, yet progressives can’t count on either Roberts or Gorsuch as a solid ally of trans rights. Both justices voted to allow Trump’s ban on transgender military service. And in 2016, Roberts voted to stop Gavin Grimm, a transgender student, from using the boys’ bathroom at school.
Bostock expressly declined to address sex-segregated bathrooms, and did not mention discrimination involving birth certificates, medical care, or sports. Again, its own logic should doom any law that singles out transgender people for disfavored treatment. But if either Roberts or Gorsuch wants to distinguish Bostock from this latest crop of anti-trans legislation, they can always find an excuse. Judge William Pryor, who dissented from the 11th Circuit’s decision in Adams, pointed the way, insisting that the state’s interests in promoting “privacy” far outweigh trans students’ interest in using the proper bathroom. Replace “privacy” with “accurate ID,” “medical integrity,” “women’s sports,” or any other pretext, and you’ve got a roadmap to get around Bostock.
In July, the Supreme Court declined to take up Gavin Grimm’s case, suggesting that most justices have no appetite to take on another LGBTQ dispute. But at some point in the near future, Republicans will scurry to SCOTUS demanding an emergency order allowing their anti-trans laws to take effect. Conservative appeals courts may also uphold anti-trans legislation, all but forcing LGBTQ groups to seek relief from the Supreme Court. One way or another, the justices will have to decide whether legislatures have authority to degrade transgender people by both denying their identities and passing oppressive laws that force them to leave the state. The early court victories are an encouraging sign. But when the last word lies with Neil Gorsuch and John Roberts, every supporter of transgender equality has good reason to fret.