How the US Supreme Court has changed trans rights since 2020

In 2020, when the Supreme Court declared that transgender workers were protected by federal anti-discrimination law, the opinion written by Justice Neil Gorsuch marked a significant legal advance.

The case extended the protections of Title VII of the Civil Rights Act of 1964 to gay and lesbian workers, as well as transgender employees.

Gorsuch, who takes a textualist approach, wrote that the law prohibiting discrimination "on the basis of...sex" covered a transgender woman fired from her position at a Michigan funeral home.

The decision in Bostock v. Clayton County was surprising in several ways, including the fact that it was written by President Donald Trump's prime minister nominee for the Court. Gorsuch had the support of conservative Justice John Roberts and four liberal-leaning justices at the time.

This outcome faced such resistance from right-wing groups that when Gorsuch's vote was leaked to the press months before the decision was published, conservative editorialists tried to pressure him to reconsider.

However, the decision did not represent a revolution for the rights of trans people. The changing composition of the Court and the political landscape ensured that this did not happen.

The Supreme Court's decision last Tuesday (30), by 6 votes to 3, maintaining state laws that prohibit trans women from competing in women's sports teams, reflects the national trend observed since 2020 and reinforces the standard adopted by ministers.

Last year, the same Court, on a 6-3 score, allowed states to block certain types of health care for transgender youth.

In recent months, the Court also allowed Trump to discharge transgender military personnel from the Armed Forces and authorized the government to require that the gender indication on U.S. passports correspond to the individual's biological sex.

"The law is being used to scapegoat transgender people," said Suzanne Goldberg, a law professor at Columbia University who has worked on LGBTQ+ issues since the 1990s.

"We can see this in restrictions that isolate transgender people from almost every area of civic life: in schools, in obtaining passports, in military service, and in accessing health care," Goldberg added.

Although they make up about 1% of the U.S. population, transgender people have become a disproportionate target on the political stage and the subject of state litigation.

Trump campaigned against trans and LGBTQ+ issues in his 2024 campaign. Republican supporters released an ad criticizing then-Vice President Kamala Harris for her liberal positions on LGBTQ+ issues; the ad ended with the phrase: "Kamala supports the neutral pronoun. President Trump supports you."

State laws against trans people have multiplied. Over the past six years, 27 states have enacted laws prohibiting transgender women from participating in women's sports competitions.

In delivering the majority vote, Justice Brett Kavanaugh emphasized concerns about safety and fairness in competition, citing "the undisputed premise that biological males generally possess inherent physical advantages in sport."

This message about safety was shared by people outside the court who praised the new decision. First Lady Melania Trump said in a post on the social network X: "As many of you know, I fully support the LGBTQIA+ community. But we must also ensure that our female athletes are protected and respected."

Recent cases in the Supreme Court involving young people have intensified disagreements between ministers. While Kavanaugh spoke about girls training hard and celebrating their achievements, Justice Sonia Sotomayor, who voted against the majority, lamented the plight of trans girls deprived of a similar competitive experience.

The majority reversed lower court decisions that had favored trans agendas. The court ruled that the specific bans in West Virginia and Idaho violated neither Title IX (federal education law) nor the Constitution's guarantee of equality.

Although the nine justices generally agreed on the first decision on Title IX, there was disagreement regarding the important constitutional issue.

"Separate sports teams for biological males and biological females are reasonable," Kavanaugh wrote.

"Given the inherent physical differences between the sexes, allowing only biological women to join female teams can reduce the risk of physical injury and ensure fair competition," he added.

Everything has changed since 2020
In 2020, advocates on both sides of the issue had raised the possibility that the reach of the Bostock decision would extend to other areas of law, but this momentum has been contained.

The composition of the Supreme Court has changed, as the late liberal Justice Ruth Bader Ginsburg was succeeded by conservative Amy Coney Barrett in October 2020.

Public attitudes have also changed. Pew Research's most recent study on trans issues, published last year, found that a majority of Americans support restrictions on trans people, and that support for restrictions is increasing.

The majority of respondents (66%) supported requiring trans athletes to compete on teams corresponding to the sex they were assigned at birth, and the majority (56%) supported laws that prohibit healthcare professionals from providing care related to gender transition to minors.

The Court also rejected arguments that would extend the anti-discrimination principles of the Bostock decision to new Trump administration policies, for example regarding passport rules.

Although interested parties continually invoke the Bostock precedent in defense of the rights of trans people beyond the labor sphere, the current majority of the Court has shown no interest in expanding the scope of this decision.

Last year, when the Court majority upheld state bans on puberty blockers, hormones and other gender transition treatments, Roberts cited states' interest in protecting health care for adolescents and children and said the Court did not need to consider whether Bostock applied "beyond the context of Title VII."

"This case carries with it the weight of intense scientific and political debates about the safety, effectiveness, and appropriateness of medical treatments in an evolving field," Roberts concluded in the Tennessee dispute, *United States v. Skrmetti*.

"... We leave issues relating to this policy to the population, their elected representatives and the democratic process", he added.

Gorsuch has also not publicly demonstrated any intention to expand on the historic ruling he handed down six years ago.

Last Tuesday, Gorsuch wrote a separate opinion to emphasize that the new decision in West Virginia v. BPJ, in which he participated, did not conflict with the Bostock precedent.

"It is a mistake to assume that just because firing someone in part because of their biological sex constitutes unlawful discrimination in violation of Title VII," Gorsuch said, "maintaining a single-sex sports team limited to biological women or girls must also constitute unlawful discrimination in violation of Title IX."

Future perspectives
Trump's executive order banning the participation of trans women in women's sports, signed shortly after his return to the White House, also hovered in the background of last Tuesday's case.

The U.S. Attorney's Office, which supported West Virginia and Idaho, told the court early in its written brief that the Trump administration opposes "the competitive participation of men in women's sports... for reasons of security, justice, dignity and truth."

The U.S. Attorney General argued in his brief that these state laws place trans athletes "in the same valid, biologically based conditions as everyone else. This is the definition of equal treatment. This is not, in any way, discrimination based on gender identity, much less discrimination based on sex."

The lawsuits were filed by Lindsay Hecox, a Boise State University senior who competed on the women's soccer and track teams, and Becky Pepper-Jackson, who seeks to participate on middle and high school track teams in West Virginia.

Sotomayor noted in her dissenting opinion that Becky Pepper-Jackson claims she does not have the usual athletic advantage of boys, as she received early medical treatments to prevent the experience of male puberty. Sotomayor, joined by liberal justices Elena Kagan and Ketanji Brown Jackson, argued for the West Virginia dispute to be returned to a federal district court for further fact-finding.

After Tuesday's ruling, Shannon Minter, legal director at the National Center for LGBTQ Rights, called the ruling a "setback" but noted that the decision still allows states to adopt policies that authorize trans students to compete on teams that align with their gender identity.

The current trend, however, is heading in the opposite direction. The Justice Department has sued California and other states that allow transgender students to serve on the team of their choice. Last year, the NCAA banned trans women from competing in women's sports, and in March, the International Olympic Committee adopted the same measure for its women's category.

In her dissenting opinion, Sotomayor noted that such bans deprive trans women of the many positive experiences - such as developing resilience and tenacity - that sports provide young people.

"Sports, of course, is often a zero-sum game," she wrote, echoing the "zero-sum" expression that Kavanaugh had used several times in his vote, "but the law need not, nor should, be that way."

Source: CNN