In a July full of high-stakes Supreme Court rulings, U.S. v. Skrmetti stood out as a crucial victory against insanity. In a 6-3 decision, the Court asserted that it is not a violation of the Equal Protection Clause of the 14th Amendment for Tennessee to ban transgender surgeries and hormone therapies for children with gender dysphoria. This opinion, along with cases like Dobbs v. Jackson Women’s Health Organization in 2022 and Medina v. Planned Parenthood last month, allows room for sanity in red states. These are important victories against the institutional Left, which seeks to shut down debate on controversial issues by imposing its political will under the guise of newly invented rights. Skrmetti doesn’t win the fight against transgender extremism, but it allows red states to pass sane laws and begin to reverse course.
The losing argument in Skrmetti is now a familiar one: anything that discriminates against LGBTQ priorities is discrimination on the basis of sex. After Skrmetti, there is hope that this faulty logic—which emerged with the infamous 2019 decision in Bostock v. Clayton County—has at least been kept at bay, if not defeated. Writing for the majority, Chief Justice Roberts was clear that the logic in Bostock (which interpreted Title VII of the Civil Rights Act) would not be extended: “The Court declines to address whether Bostock’s reasoning reaches beyond the Title VII context.”
How could a majority of the Supreme Court in Skrmetti—a majority that includes Justice Gorsuch, the author of Bostock—not follow the logic of Bostock? After all, Justice Gorsuch wrote in Bostock that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock‘s logic seems to insist that LGBTQ discrimination is always sex discrimination. So how does Skrmetti fit into this framework?
It only works because the majority in Skrmetti did not actually reject the logic of Bostock (unlike Justice Thomas and Justice Alito, who are clear that Bostock “fails on its own terms”). Rather, the majority in Skrmetti distinguished Bostock, not only because of the particular law being interpreted, but because of a different set of facts.
This means we still have a very real and enduring Bostock problem. The Court was able to rule that the law under review in Skrmetti involved no discrimination on the basis of sex for the very fact-specific reason that it prohibits certain surgical and chemical interventions for minors suffering from gender dysphoria. The law does not discriminate on the basis of sex because 1) minors of both sexes cannot access these medical interventions, while adults of both sexes can, and 2) these treatments are available to members of both sexes suffering from certain medical ailments, but not gender dysphoria. Even someone thoroughly convinced by Bostock‘s logic can see that this case is different, and that there is no logical way to say that the Tennessee law constitutes sex-based discrimination.
Contrast this with a key example in Bostock, which dealt with employment discrimination. Justice Gorsuch’s reasoning reveals the enduring problem that Skrmetti has not solved:
Take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth…. [T]he individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.
The tortured logic of this paragraph reveals the continuing Bostock problem: if a man is treated differently from a woman in the same situation, just because he is a man, or vice versa, that constitutes discrimination because of sex. This expands far beyond the clear intention and purpose of prohibiting sex-based discrimination, which was essentially to prevent employers from refusing to hire or promote women. But now, if a woman can wear a floral dress to work but a man can’t, that’s sex discrimination. The congressmen of 1964 would probably be quite shocked to learn what they’ve done.
And unfortunately, Bostock’s influence is not limited to Title VII: its logic has extended into the states. While many states maintain nondiscrimination statutes that protect only the typical categories of protected class (race, ethnicity, religion, sex, etc.), more than a few have followed Bostock in the interpretation of their own state statutes. By 2022, three years after Bostock, at least ten states followed Bostock‘s logic and interpreted discrimination on the basis of sex to include sexual orientation and gender identity. The stakes are high; Bostock needs to go.
What can be done to solve the enduring Bostock problem? Cases like Skrmetti help a bit simply by refusing to extend Bostock‘s logic to other areas of law. While Skrmetti dealt with different facts, hopefully other cases alleging LGBTQ discrimination will arise as constitutional claims under the Equal Protection Clause, Due Process Clause, etc., with similar facts to Bostock. This would afford the Supreme Court the opportunity to openly refuse to apply Bostock‘s logic to constitutional discrimination claims.
Another step in the right direction would be to apply the logic of Skrmetti when a red state bans the same procedures to treat gender dysphoria in adults. While much of Skrmetti relies on the fact that the Tennessee law banned the procedures for minors of both sexes and adults of neither sex, the “medical use” argument should still hold up. If a state bans these surgeries and hormone treatments for adults of both sexes with gender dysphoria but allows them for adults of both sexes with other conditions, it follows logically that this is still not discrimination on the basis of sex.
Ultimately, though, the problem will not be solved until Bostock is overruled. Chief Justice Roberts and Justice Gorsuch both sided with the Bostock majority, so without a conversion it does not seem there are five votes for this right now. But the enduring problem of Bostock is a dire one. It skews the very meaning of discrimination “because of” or “on the basis of” a protected trait. Justice Gorsuch tied himself up in technical, linguistic knots to produce the Bostock opinion; perhaps the remedy is not merely better technical legal arguments but common sense. Discrimination on the basis of sex means getting fired or denied a promotion for being a certain sex. Whatever one thinks about the priorities and lifestyle of the LGBTQ crowd, being fired for refusing to follow a dress code or for one’s choice of sexual partners is not sex discrimination; it is something else.
Legislators have the ability to protect LGBTQ behavior and give those who engage in such behavior the status of a specially protected legal class. But refusing to do so, and instead smuggling this agenda into law via sex discrimination, undermines the very purpose of sex-based nondiscrimination laws. Until Bostock is gone, its specter will continue to loom over the American legal landscape.