September 16, 2020 at 11:54 am EDT | by Chris Johnson
How the Trump administration is getting around Bostock to allow anti-trans discrimination
Faced with having to enforce the law to prohibit anti-transgender discrimination in the aftermath of the U.S. Supreme Court’s landmark decision for LGBTQ rights this summer, the Trump administration has sought to minimize the breadth of the ruling in ways that could still lead to transgender people being denied access to public spaces and activities.
Although the Supreme Court decision in Bostock v. Clayton County, which found anti-transgender discrimination is a form of sex discrimination, thus illegal in the workplace under Title VII of the Civil Rights Act of 1964, would in theory apply to all statutes and laws against sex discrimination — the Trump administration is promulgating rules allowing anti-transgender discrimination to persist with respect to sex-segregated facilities, such as homeless shelters and school sports.
It boils down to this legal theory: Denying transgender people access consistently to sex-segregated spaces with their gender identity is not tantamount to discrimination, so long as they’re so afforded entry according to their gender assigned at birth. Forcing transgender people into these spaces inconsistent with their gender identity, however, would be something few would be willing to accept, and may make them more vulnerable to harassment and violence.
Jon Davidson, chief counsel for the LGBTQ group Freedom for All Americans, said the conclusion that the Trump administration is limiting the Bostock ruling with respect to transgender people’s access to sex-segregated spaces “accurately” assesses the situation.
“The administration is arguing that, while bans on sex discrimination encompass gender identity discrimination, they do not, in the administration’s view, require that transgender individuals be treated as the sex with which they identify,” Davidson said.
Most recently, the Trump administration’s position can be found in the Department of Education’s updated letter to schools in Connecticut, which has become ground zero in transgender kids participating in school sports after an incident in which students complained when they were beaten in track and field by transgender athletes. The Alliance Defending Freedom, an anti-LGBTQ legal group, filed a complaint with the Department of Education’s Office of Civil Rights on their behalf.
Although discrimination on the basis of sex discrimination in schools is prohibited under Title IX of the Education Amendments of 1972, the department opined in a pair of letters dated Aug. 31 the law doesn’t require schools to allow transgender kids to participate consistent with their gender identity, even after the Bostock decision because “the Court expressly declined to decide questions about how its interpretation of Title VII would affect other statutes.”
“After reviewing Bostock, the Office for Civil Rights concurs with counsel for the employee’s concession in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, that the Bostock holding does not alter the legal authority for sex-segregated teams under Title IX,” says the letter, signed by Kimberly Richey, acting assistant secretary for civil rights. “Even if Bostock applied to Title IX — a question the Supreme Court expressly declined to address — its reasoning would only confirm that Title IX does not permit a biologically male student to compete against females on a sex-segregated team or in a sex-segregated league.”
To bolster its position, the Department of Education points to language in Title IX, which says schools can “operate or sponsor separate teams for members of each sex,” so long as they allow members of a different sex to try out for that sport if there is no team for their gender and the activity isn’t a contact sport.
The Department of Education letter in the Connecticut case echoes a statement of interest the Justice Department filed in Idaho, where the Trump administration sided with the state in a legal challenge filed by American Civil Liberties Union against a state law barring transgender girls from participating in school sports — a statement President Trump himself amplified by tweeting out a Breitbart article about it.
“The Equal Protection Clause does not require states to abandon their efforts to provide biological women with equal opportunity to compete for, and enjoy the life-long benefits that flow from, participation in school athletics in order to accommodate the team preferences of transgender athletes,” the statement says. “Put differently, the Constitution does not require Idaho to provide the special treatment Plaintiffs request, under which biological males are allowed to compete against biological females if and only if the biological males are transgender.”
(That line of reasoning was ultimately unconvincing to U.S. District Judge David Nye, who was adjudicating the case, Hecox v. Little. Nye, a Trump appointee, issued a preliminary injunction barring Idaho from enforcing the law on the basis it violates the Equal Protection Clause.)
The Trump administration’s position can also be found in the recent rule proposed in July by the Department of Housing & Urban Development allowing sex-segregated homeless shelters to refuse to place transgender people consistent with their gender identity. Homeless shelters aren’t allowed to turn away transgender people entirely, but are allowed to house them consistent with gender assigned at birth, not gender identity.
“For example, under the proposed rule, if a single-sex facility permissibly provides accommodation for women, and its policy is to serve only biological women, without regard to gender identity, it may decline to accommodate a person who identifies as female but who is a biological male,” the proposed rule says. “Conversely, the same shelter may not, on the basis of sex, decline to accommodate a person who identifies as male but who is a biological female.”
Although the Trump administration argues this approach is consistent with the Bostock ruling, transgender legal advocates say that’s not the case and falls short of operating within the scope of the Bostock decision.
Davidson said refusing transgender people access to sex-segregated spaces is “legally flawed” because the Supreme Court has ruled discrimination based on transgender status is a form of sex discrimination
“Refusing to allow transgender women and girls to participate in sports that they could participate in if they were not transgender discriminates based on transgender status by treating those who are transgender worse than those who are not,” Davidson said. “The same is true of refusing to allow transgender individuals to access shelters that they would have been able to obtain emergency housing in if they were not transgender.”
Arguably, the Trump administration can say it’s following the legal framework under Bostock — which found transgender people can’t be fired from a job because they’re transgender, but didn’t specifically address whether an employer must respect a transgender person’s gender identity — but Davidson said that’s not the case.
“Indeed, Aimee Stephens — one of the individuals whose case was decided by Bostock — was fired at least in part because she intended to dress in the attire her employer required for female rather than male employees, so it cannot be the case that refusing to treat transgender women as other women are treated is permissible under Bostock,” Davidson said.
But this isn’t the only way the Trump administration is enabling anti-transgender discrimination after Bostock. In some cases, the Trump administration is just outright flouting the determination anti-transgender discrimination is a form of sex discrimination.
One example is the Department of Health & Human Services withdrawing the Obama-era rule interpreting Section 1557 in the Affordable Care Act, which bars sex discrimination, to prohibit health care providers from refusing treatment to transgender people, including gender reassignment surgery. The reasoning for vacating it was the belief the ban on sex discrimination didn’t apply to transgender people, which the Bostock decision expressly prohibited.
The ongoing transgender military ban is also likely unlawful now that the Supreme Court has determined anti-transgender discrimination is a form of sex discrimination. U.S. jurisprudence has established policies and laws enabling sex discrimination should be subject to heightened scrutiny, or a greater assumption they’re unconstitutional.
Jillian Weiss, a New York-based transgender civil rights attorney, said the Trump administration is “doing its best to engage the LGBTQ community in a game of whack-a-mole” after having lost its argument of a more expansive view of the definition of “sex” in the Bostock case.
In addition to limiting the definition of “sex” under the law as it pertains to transgender people in sex-segregated facilities, Weiss said the Trump administration is seeking to expand a religious right to discriminate against any protected category.
“The Supreme Court seems to be going along with regard to the religious right to discriminate, but it is not clear yet what will happen with the attempts to narrowly define “sex,’” Weiss said. “The meaning of the term ‘sex’ has changed greatly over time, and scientists have taken the broader view. Given that, I do not believe that the narrow definition of ‘sex’ is valid in interpreting anti-discrimination laws.”
As a result, it may require a change in the law itself, rather than an interpretation of the law from the Supreme Court, to ensure discrimination against transgender people is prohibited regardless of the administration in power.
Most likely that would be in the form of passage of the Equality Act. However, in a kind of Catch-22, Trump has signaled he opposes the legislation, so it would require a change in administrations, such as the election of Joe Biden in the fall. But if that happened in November, a Democratic administration would be in power, which would likely enforce the Bostock decision to more broadly contain anti-transgender discrimination.
Nonetheless, if Biden signed the Equality Act into law, it would prevent future administrations from enabling anti-trans discrimination based on a limited view of the Bostock decision.
Davidson pointed out the Equality Act has language providing that “an individual shall not be denied access to a shared facility, including a restroom, a locker room, and a dressing room, that is in accordance with the individual’s gender identity,” which he said is consistent with the outcome of recent court decisions on transgender rights.
“The unfortunate reality is that LGBTQ people experience discrimination every day,” Davidson concluded. “Such discrimination continues to be a serious problem. No one should be at risk of discrimination simply because of who they are, whom they love, or the state in which they reside. Congress needs to pass the Equality Act as soon as possible to ensure that all LGBTQ Americans have the strongest available protections against unequal treatment where we work, live, go to school and interact with others in the public sphere.”
The Justice Department didn’t respond to the Washington Blade’s request to comment on the legality of the Trump administration’s implementation of the Bostock decision.