On Monday, the U.S. Supreme Court ruled that discrimination on the basis of sex includes discrimination on the basis of sexual orientation and gender identity in the case of Bostock v. Clayton County (2020). In a powerful dissent joined by Justice Clarence Thomas, Justice Samuel Alito condemned the ruling as “preposterous” and betraying “breathtaking” arrogance. He noted that Congress has tried and repeatedly failed to amend Title VII of the Civil Rights Act of 1964 in just this fashion and that no one interpreted the law this way until 2017. In this decision, as in Roe v. Wade (1973) and Obergefell v. Hodges (2015), the Supreme Court usurped the power of Congress by creating “legislation.”
Perhaps most importantly, however, Alito warns that the decision will have wide-ranging destructive impacts on key freedoms Americans hold dear, and he predicts that “the entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”
“As the briefing in these cases has warned, the position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty,” Alito warns. His dissent lays out seven different realms of American life that will be affected by this ruling.
1. Bathrooms and changing rooms
Naturally, the Supreme Court’s position that a ban on discrimination on the basis of “sex” includes a ban on discrimination on the basis of gender identity is not only a preposterous extension of the 1964 law but a dangerous reading of federal law in general.
As Alito warns, “the Court may wish to avoid this subject, but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex. For some, this may simply be a question of modesty, but for others, there is more at stake. For women who have been victimized by sexual assault or abuse, the experience of seeing an unclothed person with the anatomy of a male in a confined and sensitive location such as a bathroom or locker room can cause serious psychological harm.”
Based on broad understandings of “transgender status” that could include those who identify as “gender fluid” and those who have not undergone any surgery to alter their bodies. “A person who has not undertaken any physical transitioning may claim the right to use the bathroom or locker room assigned to the sex with which the individual identifies at that particular time,” Alito reasoned.
This is not to say that transgender people are predators, but to note that women have passionately fought for their rights and now their private spaces will be open to biological males. The true concern is not that a male who identifies as a female will abuse women, but that prurient men will abuse this loophole and some women who have experienced sexual assault will be victimized by being forced to share intimate quarters with biological males.
2. Women’s sports
Alito also warns that “the right of a transgender individual to participate on a sports team or in an athletic competition previously reserved for members of one biological sex” may arise under Title VII and Title IX due to the Court’s ruling in Bostock.
“This issue has already arisen under Title IX, where it threatens to undermine one of that law’s major achievements, giving young women an equal opportunity to participate in sports,” Alito notes. “The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male.”
Alito also warned that this ruling may affect professional sports, as well.
Indeed, women in Connecticut are challenging a school rule that forces them to compete with biological males. Even the Journal of Medical Ethics, which has published an article calling for Child Protective Services to remove gender-confused kids from their parents if the parents won’t give them experimental transgender drugs, also published an article condemning the “intolerable unfairness” of the Olympic Committee’s pro-transgender rules.
3. Housing
Bostock “may lead to Title IX cases against any college that resists assigning students of the opposite biological sex as roommates,” Alito warns. It may also force rape crisis centers for women to admit biological males who claim to identify as women. One such center has already been vandalized with transgender slogans, and some centers have fought long legal battles over the right to allow safe harbor only for women.
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4. Religious employment
Alito cites “briefs filed by a wide range of religious groups––Christian, Jewish, and Muslim–– [that] express deep concern that the position now adopted by the Court ‘will trigger open conflict with faith-based employment practices of numerous churches, synagogues, mosques, and other religious institutions.’ They argue that ‘[r]eligious organizations need employees who actually live the faith,’ and that compelling a religious organization to employ individuals whose conduct flouts the tenets of the organization’s faith forces the group to communicate an objectionable message.”
Alito warns that this problem is “perhaps most acute” in the employment of teachers. “A school’s standards for its faculty ‘communicate a particular way of life to its students,’ and a ‘violation by the faculty of those precepts’ may undermine the school’s ‘moral teaching.’ Thus, if a religious school teaches that sex outside marriage and sex reassignment procedures are immoral, the message may be lost if the school employs a teacher who is in a same-sex relationship or has undergone or is undergoing sex reassignment.”
5. Health care
“Healthcare benefits may emerge as an intense battleground under the Court’s holding,” Alito warns. “Transgender employees have brought suit under Title VII to challenge employer-provided health insurance plans that do not cover costly sex reassignment surgery.”
“Such claims present difficult religious liberty issues because some employers and healthcare providers have strong religious objections to sex reassignment procedures, and therefore requiring them to pay for or to perform these procedures will have a severe impact on their ability to honor their deeply held religious beliefs,” he explains.
Indeed, the Department of Health and Human Services (HHS) just finalized a rule rightly defining sex as biological sex and reversing the Obama administration on these issues. Does Bostock make that HHS rule unconstitutional?
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6. Freedom of speech
Alito warns that “the Court’s decision may even affect the way employers address their employees and the way teachers and school officials address students. Under established English usage, two sets of sex-specific singular personal pronouns are used to refer to someone in the third person (he, him, and his for males; she, her, and hers for females). But several different sets of gender-neutral pronouns have now been created and are preferred by some individuals who do not identify as falling into either of the two traditional categories.”
“Some jurisdictions, such as New York City, have ordinances making the failure to use an individual’s preferred pronoun a punishable offense, and some colleges have similar rules. After today’s decision, plaintiffs may claim that the failure to use their preferred pronoun violates one of the federal laws prohibiting sex discrimination,” the justice warns.
7. Constitutional claims
While Title VII cases are different from cases about the Fourteenth Amendment, Alito warns that Bostock “may exert a gravitational pull in constitutional cases. Under our precedents, the Equal Protection Clause prohibits sex-based discrimination unless a ‘heightened’ standard of review is met. By equating discrimination because of sexual orientation or gender identity with discrimination because of sex, the Court’s decision will be cited as a ground for subjecting all three forms of discrimination to the same exacting standard of review.”
“Under this logic, today’s decision may have effects that extend well beyond the domain of federal antidiscrimination statutes. This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds,” Alito warns.
Although the six justices in the majority on Bostock likely had honorable intentions in redefining the word “sex” and effectively making law in this decision, it was “irresponsible” for them not to consider its wide-ranging consequences, Alito warns.
“The updating desire to which the Court succumbs no doubt arises from humane and generous impulses. Today, many Americans know individuals who are gay, lesbian, or transgender and want them to be treated with the dignity, consideration, and fairness that everyone deserves,” he writes. Even so, “The Court’s brusque refusal to consider the consequences of its reasoning is irresponsible.”
“If the Court had allowed the legislative process to take its course, Congress would have had the opportunity to consider competing interests and might have found a way of accommodating at least some of them.” Instead, the Supreme Court has made law, just like it did in Roe v. Wade and Obergefell v. Hodges.
Tyler O’Neil is the author of Making Hate Pay: The Corruption of the Southern Poverty Law Center. Follow him on Twitter at @Tyler2ONeil.
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