The Supreme Court's landmark decision in Bostock v. Clayton County is changing civil rights law despite the narrow scope of its purview.
In 2020, the nation's high court decided that the definition of sex discrimination under Title VII of the Civil Rights Act of 1964, which pertains to employment law, includes sexual orientation and gender identity.
Since then, the Biden administration has attempted to use the case to shift every protection against sex discrimination in federal law to align with Bostock — not just in the context of Title VII, as the decision suggested.
Although the majority opinion, authored by Justice Neil Gorsuch, attempted to limit the scope of the decision by saying it only addressed employment law while keeping the definition of "sex" focused on reproductive biology, the ruling also reasoned that a person who identifies as transgender can be a victim of "sex discrimination" because the person's biological sex is relevant in determining whether an act of discrimination took place.
"The long-term conclusion of Justice Gorsuch's decision is that Title IX would have the same rules, which would extend to biological males participating in female sports," Josh Blackman, a constitutional law professor at the South Texas College of Law, told the Washington Examiner. "I think if you follow the language of Gorsuch, it would also lead to Catholic hospitals being forced to perform hysterectomies on biologically female patients."
The Biden administration could use Bostock to make the argument that "if you perform a hysterectomy on a female patient for one reason, but you refuse to perform it for transgender surgery, that's sex discrimination because you're discriminating because of her sex or gender identity," Blackman explained.
On his first day in office, President Joe Biden signed an executive order empowered in large part, the White House said, by Bostock. That directive set in motion a plethora of agency rule changes using language such as "consistent with the reasoning in Bostock."
"Under Bostock‘s reasoning, laws that prohibit sex discrimination ... along with their respective implementing regulations — prohibit discrimination on the basis of gender identity or sexual orientation," Biden's 2021 executive order said, applying the case to an array of federal law far outside Title VII.
As the Washington Examiner reported, that line of reasoning has been used in an effort to attach federal grant money to the promotion of transgender ideology with a proposed rule change at the Office of Management and Budget. The rule change could allow the government to weigh ideological considerations when handing out federal dollars.
Similarly, the departments of Justice and Health and Human Services intervened in December in a Florida lawsuit citing Bostock to argue that the state's ban on Medicaid reimbursements for transgender surgeries, cross-sex hormones, and other related drugs violated federal anti-discrimination law.
Using Bostock, the Department of Education implemented similar rules in its enforcement of Title IX, relying on the decision to argue that boys belong in girls' restrooms and changing facilities, as well as on their sports teams. That reasoning was extended last year by the Department of Agriculture when it proposed revoking federal aid to free and reduced-price school lunches offered by schools that do not follow the Biden administration's rules on LGBT ideology, again citing Bostock.
"When you're a Democratic administration and you have a decision like Bostock, you try to push it as far as possible," Blackman said. "If you look at what Gorsuch said, it's not unreasonable to think that the same reason would apply to these other areas of the law."
The expansion of protections against discrimination is difficult to contain once it begins, Blackman said.
"Once you have discrimination law that's enforced a certain way, it's hard to undo that," he said, comparing Bostock to the Supreme Court's 2015 decision in Obergefell v. Hodges, which legalized gay marriage. "Once enough states start adopting a form of anti-discrimination, you can't undo it, you can't unwind it ... the ship has probably already sailed."
Bostock both opened the door for the Biden administration to expand the "sex discrimination" definition to other aspects of federal law — and for local governments to cite it in their decisions not to comply with conservative state laws.
After Gov. Doug Burgum (R-ND) signed a series of laws restricting transgender ideology in schools, Fargo Public Schools refused to implement it, citing Bostock in its "determination that federal law takes precedence."
It was the same story in Virginia, where the administration of Gov. Glenn Youngkin (R-VA) issued new guidance to school districts about how to treat students claiming transgender identity. Many districts decided they did not need to follow it.
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Fairfax County Public Schools in Virginia cited "federal law" in its rejection of the guidance and Prince William County used the 4th Circuit opinion in Grimm v. Gloucester County School Board, which relied heavily on Bostock to rule against a school district that was trying to keep male-identifying biological females from using the boys' restroom.
The Supreme Court declined to hear that case, with every justice except Justices Samuel Alito and Clarence Thomas voting against taking it up — a move Blackman described as evidence that the majority of the justices are fine with letting the decision stand.