Earlier this month, the Supreme Court refused to enforce a new Department of Education rule protecting transgender students under Title IX, which promises equality in education and explicitly prohibits discrimination “on the basis of sex.” In 2020, the court famously ruled in Bostock v. Clayton County, that “it is impossible to discriminate against a person on the basis of his or her homosexuality or transsexuality without discriminating against that person on the basis of his or her sex.” The new rule, currently blocked from coming into force, attempts to apply this logical conclusion to the equal treatment requirement of Title IX.
But since the release of BostockTwo key things have changed: the structure of the court and the prospect of former President Donald Trump’s re-election. These developments have sparked a concerted effort on the right side of the political map to Bostockand a detailed plan to do so was included in Project 2025, the 922-page document detailing the blueprint for a Trump administration. But as this month’s decision shows, the groups behind Project 2025 are implementing their plan in court as early as 2024.
The 2025 project is aimed directly at Bostockand argues that the ruling should not apply to various equality protections outside their immediate circumstances. “The new government,” it says, “should restrict BostockApplying protections against sex discrimination to sexual orientation and transgender status in connection with hiring and firing.” It goes on to say that “the President should direct agencies to withdraw unlawful ‘advice’ and ‘guidelines’ purporting to apply Bostock‘s reasoning largely outside of hiring and firing” and “repealing regulations that interpret sex discrimination provisions to prohibit discrimination based on sexual orientation, gender identity, transgender status, sex characteristics, etc.” Without waiting for the November election, the leaders of Project 2025 are already in court, rehearsing this part of their script in a war on multiple fronts against Bostock and LGBTQ+ students, patients and staff.
Take, for example, the Court’s recent 5-4 decision. With the exception of Justice Neil Gorsuch, who Bostockall other conservative judges, including Chief Justice John Roberts, who joined Gorsuch in Bostockaffirmed the blocking of the entire Title IX rule by district courts in Louisiana and Kentucky. This latest ruling is the culmination of a series of cases in which red states and conservative advocacy groups such as the Alliance Defending Freedom argue that Bostock was adopted under Title VII to protect workers, but it cannot be used to protect LGBTQ+ students under Title IX.
On a similar battlefield focused on health care, the red states have attacked Bostock to prevent his argument from protecting trans minors’ access to treatments available to cisgender youth. When the minors, their parents, and supporting doctors sought injunctions against bans on gender-affirming treatments, they temporarily won in many district courts, which found that the bans were likely unconstitutional by Bostock on the broad prohibition of discrimination in the Equal Protection Clause. A conservative majority of the US Court of Appeals for the 6th Circuitth Circuit reversed these orders, finding: Bostock does not apply outside Title VII and is therefore “irrelevant” for the interpretation of the equal treatment clause. The case LW against Skrmettiwas recently taken up by the Supreme Court and will be heard in its 2024-25 legislative session, probably before a new government takes office.
Likewise, still in the health care trenches, lawsuits have been filed to block the enactment of another Biden administration rule protecting LGBTQ+ people. This rule was established by the U.S. Department of Health and Human Services under the anti-discrimination provision of the Affordable Care Act and requires – based on Bostock– that medical providers avoid discrimination against LGBTQ+ patients. In response, ADF, one of the main groups behind Project 2025, initiated legal proceedings to block the rule and recently obtained statewide and nationwide injunctions issued on the same day by courts in Mississippi and Florida. Again, the prevailing argument was that Bostock had no life outside of Title VII.
Remarkably, there is now a wave of litigation to Bostock even within Title VII. In this battlefield, the exact words of Project 2025 matter, and employers now argue that they too can discriminate, as long as they do not do so in the narrow context of “hiring and firing.” In Texas, for example, the group that runs Project 2025, the Heritage Foundation, is attacking (in the courtroom of a far-right judge) Bostock-based guidelines for employers by the Equal Employment Opportunity Commission. ADF also represents a group called the Christian Employers Alliance, which is suing the U.S. Court of Appeals for the 9th Circuit that they can deny health insurance to employees based on their gender identity because denying them required gender reassignment care does not fall under “hiring and firing.” And earlier this month, the conservative U.S. Court of Appeals for the 11th Circuit ruled that employers cannot deny health insurance to employees based on their gender identity.th The Circuit agreed to reverse its earlier 2-1 decision and reconsider en banc. Bostock and ruled that an employer who denies such care to a transgender employee is committing unlawful discrimination.
Although candidates are debating the future impact of Project 2025 on the campaign trail, much of the damage it is causing is already happening in a court war that is trying to Bostock of any Meaning.
