The U.S. Supreme Court heard oral arguments this week in a pair of cases that ask whether state governments may prohibit transgender girls and women from playing on girls’ and women’s school sports teams. As I sat down to review what occurred during the course of those arguments, I was particularly interested to hear what Justice Neil Gorsuch would have to say.
Why the special interest in Gorsuch? It was because of his 2020 majority opinion in Bostock v. Clayton County, a case that asked whether firing an employee for being gay or transgender violated Title VII of the Civil Rights Act of 1964, which made it illegal for an employer to discriminate against a job applicant or employee “because of…sex.”
You’re reading Injustice System from Damon Root and Reason. Get more of Damon’s commentary on constitutional law and American history.
Gorsuch held that such firings of gay or transgender workers did violate Title VII. “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote in Bostock. “Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” Many conservatives were outraged at Gorsuch over this ruling, even though Gorsuch took a page from the late Justice Antonin Scalia in his Bostock decision.
So, a big question for me this week was whether Gorsuch, the author of a landmark “liberal” decision that extended employment discrimination protections to transgender workers, might now be sympathetic to the arguments of the transgender student athletes fighting the state laws that govern their participation in school sports.
Gorsuch did seem sympathetic at certain points to the arguments made in support of those transgender student athletes. For example, during the oral arguments in one of the cases, Little v. Hecox, Gorsuch pressed Idaho Solicitor General Alan Hurst to explain why the law passed by his state should not face a very aggressive form of judicial review.
“There’s another way to think about this case that your friends on the other side posit,” Gorsuch told Hurst. “And that is that transgender status should be conceived of as a discrete and insular class subject to scrutiny, heightened scrutiny, in and of itself given the history of de jure discrimination against transgender individuals in this country over history.”
In a case involving the Equal Protection Clause of the Fourteenth Amendment, which this case does involve, the Supreme Court has repeatedly held, in the words of Black’s Law Dictionary, that if the legislation “involves a suspect classification (such as race), it is unconstitutional unless it can withstand strict scrutiny.”
In other words, if Gorsuch thinks there might possibly be grounds for viewing “transgender status…as a discrete and insular class subject to…heightened scrutiny,” that would mean that any state regulation of transgender student athletes would need to clear a very high judicial bar or else risk being struck down for violating the Equal Protection Clause. Needless to say, the state’s lawyer was probably not thrilled to hear Gorsuch giving voice, even in the form of a question, to such legal arguments.
To be sure, none of this means that Gorsuch will definitely vote against the state laws. But it does make it conceivable that he could.
If you’re like me, you were probably glued to your computer screen yesterday morning in the hopes of learning the fate of President Donald Trump’s tariffs at the hands of the Supreme Court. But while the Court did release not one but three opinions yesterday in argued cases, none of those three happened to be the eagerly anticipated Learning Resources v. Trump.
Normally, when the Supreme Court is weighing a case of this magnitude, I simply assume that the decision won’t be arriving until mid or late June, when the current term wraps up. But there is a kind of urgency to the tariffs case (if Trump loses, how do the rebates work and when do they start flowing?) that suggests we could get a ruling much sooner, perhaps even as soon as this month. But as yesterday’s lack of legal news about tariffs also reminds us, only the justices themselves truly know when a decision is going to drop, and they aren’t telling.
