The Supreme Court handed down a brief and very odd opinion on Friday that seemed to abandon its landmark civil rights decision in Bostock v. Clayton County (2020), a four-year-old case that compelled the Biden administration to write rules forbidding discrimination against gay and trans students.
The Court’s new decision in Department of Education v. Louisiana temporarily leaves in place lower court decisions that blocked Biden administration regulations that, among other things, seek to curb anti-LGBTQ discrimination by schools and universities.
The Biden administration’s rules seemed to be crafted with Bostock compliance in mind — indeed, had a key provision of those rules been written any other way, they would have been illegal under Bostock. And yet the Court ruled against this provision regardless.
Bostock held that a federal anti-discrimination law that bans “sex” discrimination in the workplace forbids employers from discriminating on the basis of sexual orientation or gender identity. The opinion is written in expansive terms, indicating that any law that prohibits “sex” discrimination also bars discrimination against LGBTQ people.
As Justice Neil Gorsuch wrote for the majority in Bostock, “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court reasoned that, if a male employee is allowed to date women, to dress in traditionally masculine clothing, or to otherwise present as a man, then a female employee must be allowed to do these same things. Otherwise, the employer is treating men differently than women, and that’s illegal sex discrimination.
With Bostock in mind, the Biden administration recently released new regulations interpreting a law known as “Title IX,” which prohibits any school or other educational institution that receives federal funds from discriminating “on the basis of sex.” Most public schools, colleges, and universities receive at least some federal grant money or assistance, so Title IX broadly protects against sex discrimination in education.
Because Bostock ruled that it is “impossible” to discriminate against a gay or transgender person without discriminating based on sex, the Biden administration’s new rules define discrimination “on the basis of sex” to include “discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Before Friday, moreover, the Court’s decision in Bostock appeared safe from its Republican supermajority. Bostock, after all, was handed down in 2020, after former President Donald Trump had already appointed two of the three justices he would eventually place on the Court. And the majority opinion was authored by Gorsuch and joined by Chief Justice John Roberts, both Republicans.
So, even after Justice Ruth Bader Ginsburg’s death gave Republicans a 6-3 supermajority on the Court, it appeared that there were still five justices remaining who agreed with Bostock’s reasoning. The decision in Louisiana, however, creates serious doubt about whether this Court will still protect LGBTQ people from discrimination.
The Court split 5-4 in its Louisiana decision, although along fairly narrow lines. Indeed, one of the most inexplicable things about this case is that all three of the Court’s Democrats appeared to agree with the conclusion that Bostock does not protect LGBTQ students from discrimination.
The Biden administration regulations at issue in Louisiana did far more than just apply Bostock to educational settings. It included two other provisions benefitting LGBTQ students, including one that requires schools to allow trans students to use the bathroom that aligns with their gender identity, and another prohibiting schools from engaging in certain forms of “unwelcome sex-based conduct.”
The red-state plaintiffs in Louisiana challenged these two provisions, plus the provision defining “sex” discrimination the same way it was defined in Bostock.
Notably, the regulations also include a bevy of new rules that the red-state plaintiffs did not challenge, but lower courts blocked anyway. These include new rules governing the rights of pregnant students and school employees, rules permitting parents to act on behalf of students who face discrimination, and new definitions of terms that often arise in Title IX disputes — such as “disciplinary sanctions” or “postsecondary education.”
In defending the Department of Education, the Justice Department did not ask the Court to reinstate the bathrooms provision or the “unwelcome sex-based conduct” provision — although it will likely do so later after this litigation has progressed further in the lower courts. It did ask the Court to reinstate the provision implementing Bostock, as well as the other various provisions that were blocked by lower courts.
And yet, five justices (all six of the Court’s Republicans except for Gorsuch), decided to give the Justice Department nothing. The lower court decisions blocking the entire set of regulations will remain in effect, at least for now.
Four justices (all three of the Court’s Democrats plus Gorsuch) dissented, but their dissent is quite narrow. They argued that the lower courts erred by “blocking the Government from enforcing scores of regulations that [the plaintiffs] never challenged and that bear no apparent relationship to [plaintiffs’] alleged injuries.”
On this point, the dissenters are correct. The Supreme Court previously held in Gill v. Whitford (2018) that, when a court finds a legal violation, the “remedy must of course be limited to the inadequacy that produced the injury in fact that the plaintiff has established.”
But the dissenters agree with the majority that the lower court orders blocking the definition of “sex” discrimination — again, a definition that is lifted from the Court’s decision in Bostock — should also remain in effect. Neither the majority nor the dissent explain why they appear to be abandoning Bostock. Indeed, Bostock is not cited anywhere in either the majority opinion or the dissent.
It’s possible that the three Democrats voted the way that they did for reasons that have nothing to do with whether they agree with Bostock. Louisiana arrived at the Court on its “shadow docket,” a mix of emergency motions and other matters that receive expedited treatment by the Supreme Court.
The Court used to be very reluctant to do anything at all on its shadow docket — so reluctant, in fact, that lawyers historically were very cautious about bringing cases on the shadow docket to begin with. Starting in the Trump administration, however, the Court’s Republican majority started granting shadow docket relief very often to Trump’s Justice Department, and later to other conservative litigants. During this period, the Court’s Democratic minority often complained that their Republican colleagues were too quick to grant relief on the shadow docket.
So one explanation for the Democratic justices’ votes in Louisiana is that they are trying to stick to a principled position on the shadow docket — refusing to grant relief to the Biden administration for the same reason they said the Court should have denied relief to the Trump administration four years ago.
But, if the Democratic justices were asserting a principled stance against the shadow docket, why did they vote to reinstate the unchallenged provisions of the new Title IX rules?
Another possibility is that the Democratic justices moderated their position in an attempt to secure five votes. Perhaps the three Democrats thought they could persuade two of their Republican colleagues to reinstate the unchallenged Title IX rules if they did not push to also reinstate the definition of sex discrimination?
But, if the Democratic justices’ walked away from Bostock as part of a horse-trading negotiation, they also walked away without a horse. In the end, only Gorsuch joined them in voting to reinstate the unchallenged regulations.
In any event, no member of the Court’s Republican majority stood behind Bostock, and none of them explained why they refused to do so either. All of the justices owe Americans an explanation for why they refused to block lower court orders that are clearly and unambiguously at odds with a binding Supreme Court precedent.
So the Louisiana decision is an enigma. The justices aren’t telling us why they refused to follow Bostock. But, regardless of their reasons, the Court’s decision not to follow this landmark civil rights decision is an ominous sign for all victims of anti-LGBTQ discrimination.
