The Supreme Court will decide whether to overturn a good LGBTQ ruling by Neil Gorsuch

Bostock v. Clayton County (2020) was one of the few surprises the Supreme Court has delivered for liberals during the Trump administration.

Written by Trump appointee Neil Gorsuch and co-authored by Republican Chief Justice John Roberts, Bostock The ruling found that a federal civil rights law written decades ago prohibits workplace discrimination based on sexual orientation or gender identity. The law also uses language so broad that it leaves little doubt that discrimination against LGBTQ people is prohibited in many other areas, including health care and education.

Still, two separate appeals court panels — both dominated by Republican judges — recently said that Bostock Not a word is said about discrimination in educational institutions such as public schools and universities.

one Viewthe far right wing of the U.S. Fifth Circuit Court of Appeals ignored this Bostock Completely, as if it didn’t exist. Another Viewand was supported by two Republicans on the Sixth Circuit, spent just two paragraphs trying to explain why Bostock Not applicable to schools.

Now, these two cases—known as U.S. Department of Education v. Louisiana and Cardona v. Tennessee — The Supreme Court is considering itsShadow FilesThe stakes are huge because the two cases could determine whether the justices intend to enforce a major pro-LGBTQ rights ruling they have made since former President Donald Trump began reshaping the Supreme Court in the image of the Federalist Society.

Both cases involved The Biden administration has put together a fairly comprehensive set of regulations Interpreting Title IX, the law that prohibits sex discrimination at schools that receive federal funds. Both cases are extremely messy.

Most of the Biden administration’s Title IX regulations have nothing to do with transgender rights. Among other things, they provide certain rights for pregnant students and school employees. The regulations state that parents and legal guardians can take action on behalf of students whose Title IX rights have been violated. The new regulations also define terms that frequently appear in Title IX disputes, such as “complainant,” “disciplinary action,” or “higher education.”

Still, the rules do include three provisions that affect transgender students, including one that (according to the Justice Department) requires schools to allow such students to use bathrooms that match their gender identity. BostockA definition of “sex” discrimination that includes discrimination based on sexual orientation or gender identity.

Red State Plaintiffs Louisiana and Tennessee No new rule that does not involve transgender rights is challenged. Yet lower courts have struck down Title IX entirely. That alone is a mistake that requires the Supreme Court to intervene. As the Court said in Gill v. Whitford (2018), when a court finds a statutory violation, “the remedy must, of course, be limited to the deficiency that the plaintiff has established as causing the factual injury.”

But even without considering the overbroadness of the lower court’s order, the lower court made another serious mistake. They struck down a cross-rights provision in the new statute that not only contradicted the court’s Bostockit is forced BostockA lower court accused the Biden administration of Bostock already decided.

The new regulations include three provisions concerning transgender people’s rights in education, all of which are challenged by the plaintiffs. Louisiana and Tennessee.

Title 9 states that no one shall be discriminated against.”Based on gender” in “any education program or activity that receives Federal financial assistance.” The first challenged provision in the new regulation defines the term “sex-based” to include “discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and Gender identity”

Although the plaintiffs challenged the inclusion of gender identity in this definition, Bostock. Bostock Believe that “it is impossible to discriminate against a person because he is gay or transgender Do not discriminate against the individual based on gender“There’s really no other way to interpret this language other than how the Biden administration is interpreting it.

The other two challenged provisions are on less solid legal grounds. One provision states, in the words of the Justice Department, that “if a school requires a student to Using a restroom or locker room that does not match the student’s gender identityAs I will explain in detail below, Bostock Students are not guaranteed the right to use the bathroom that matches their gender identity.

The remaining challenged clauses Banning schools from engaging in “unwelcome sexual conduct” The provision is similar to many long-standing laws and legal precedents prohibiting sexual harassment. But the plaintiffs opposed the provision on the grounds that it could prohibit students and teachers from misgendering students or referring to them using the wrong pronouns.

But it’s worth noting that the Justice Department did not ask the Supreme Court to weigh in on the latter two provisions — meaning that the Biden administration is willing to temporarily leave the lower court’s bathroom lockdown order and anti-harassment provisions in place while those issues are litigated in lower courts. They’ll likely ask the Supreme Court to weigh in on both provisions later, though.

For now, the Justice Department is only asking the judge to block two parts of the lower court’s order that were clearly wrong: the lower court’s decision to overturn a provision of the new regulation that wasn’t even challenged, and its decision to overturn the definition of the term “based on sex,” which was inconsistent with the BostockDefinition.

To understand why the Justice Department decided to challenge only part of the lower court’s order, at least in the early stages of the litigation, it helps to take a closer look at Bostocktheory.

Bostock This involves Title VII, a federal law that prohibits workplace discrimination “because of … sex.” Notably, Bostock Assuming that the word “sex” refers to “There are only biological differences between men and women“Thus, a child born with a penis is considered male, Bostockregardless of their gender identity.

However, even with this limitation, Bostock Still, it concluded that “it is impossible to discriminate against a person because he or she is gay or transgender without discriminating against him or her on the basis of sex.” The court held that if male employees are allowed to date women, wear traditional male clothing, and present themselves as men, then female employees must be allowed to do the same. Otherwise, the employer is treating men and women differently, which is discrimination based on sex.

In addition, although Bostock The case itself involved an employment dispute, and the case used broad language that clearly covered other anti-discrimination laws, such as Title IX. Similarly, Title IX prohibits discrimination “on the basis of sex.” Bostock It is believed that if one does not discriminate against an individual on the basis of sex, then it is impossible to discriminate against that person for being transgender.

Bostock There are some limitations. First, the court explicitly rejected theSolve bathroom, dressing room or other similar problems“Therefore, the Biden administration cannot rely on Bostock Insist on allowing transgender students to use the bathroom that matches their gender identity. Bostock The law has little say over whether schools can exclude transgender women from women’s sports teams because Historically allowing for gender segregation in sports.

The Justice Department therefore decided to ask the Supreme Court to reinstate most, but not all, of the repealed regulations, consistent with the Court’s decision in Bostock. back BostockWhether schools can exclude transgender students from using bathrooms that match their gender identity remains an open question. The Biden administration may realize that it is unlikely to convince the deeply conservative Supreme Court to extend Bostock — especially cases that require judges to intervene while lower court litigation is ongoing.

But the question of whether the term “on the basis of sex” includes discrimination against transgender people is not difficult to answer. Bostockand it did so clearly and directly. The lower court’s decision refused to apply Bostock Title IX fails a very basic reading comprehension test.

Louisiana and TennesseeIn other words, it will reveal whether Roberts and Gorsuch are being honest. Bostock case.

There is no feasible way to read Bostock Nothing is different except how the Biden administration interprets it. The only question is whether the court’s two Republicans will reach the same conclusion.