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Gorsuch’s words give Biden the edge in defending transgender rights

The conservative justice’s previous written decision could box out GOP objections if the LGBTQ fight comes back to the Supreme Court.

Terry Miller, No. 4, who is transgender, competes in a high school indoor track meet in New Haven. Conn., on Feb. 22, 2020.Jessica Hill

Just in time for Pride Month, the legal battle over Republican efforts to ban transgender girls from participating in school sports is intensifying. And now the Biden administration is using a ruling authored by a Trump-appointed Supreme Court justice to fight back.

This week the US Department of Education reversed a Trump administration-era policy that had not only cleared the way for GOP state lawmakers to ban transgender women and girls from participating in school sports but also served as a basis for threatening the federal funding of states like Connecticut that allowed girls to play sports in accordance with their gender identity.


The new Biden administration policy directive states that discrimination based on a student’s sexual orientation or gender identity will be considered a violation of Title IX, a federal law that bars gender discrimination in education programs.

It’s a major change from when Republicans pushing a bevy of state bills barring transgender girls from school sports and requiring that their gender be registered as assigned at birth had an ally in the Oval Office. So far, such measures have been signed into law in seven states, dozens more have drafted similar bills, and the court challenges are already underway.

And Trump went even further, joining in the fight against states that did not discriminate against transgender students. Nonetheless, a federal lawsuit brought to block transgender girls from sports in Connecticut schools, which had been backed by the Trump administration, was dismissed earlier this year after the Biden administration withdrew from the case.

Now the Education Department is using a Supreme Court ruling, authored last year by Trump appointee Justice Neil Gorsuch, as its legal cornerstone. That ruling held that employment discrimination based on a worker’s sexual orientation or gender identity is barred by federal law.


In his written opinion, Gorsuch underscored that the ruling was only about discrimination under the federal employment law Title VII, and about that law only. Anticipating that it could be used exactly how the Democratic administration seeks to use it, Gorsuch wrote: “[W]e do not purport to address bathrooms, locker rooms, or anything else of the kind.”

A proposed ban on transgender athletes playing female school sports in Utah would affect transgender girls like this 12-year-old swimmer, seen at a pool in the state on Feb. 22.Rick Bowmer/Associated Press

But just as the words of Title VII clearly prohibit sex-based discrimination, so do those of Title IX, which states: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

As Gorsuch so plainly stated in the employment case, “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Announcing the new guidance, Secretary of Education Miguel Cardona said in a statement Wednesday that “LGBTQ+ students have the same rights and deserve the same protections” as workers were given in the Title VII ruling.

It’s hard to see how Gorsuch or any other justice could avoid coming to the same conclusion, which is probably why the Biden administration threw down that gauntlet. The challenges could not only block these state laws but also score another crucial win at the conservative-leaning court, whose justices would be hard-pressed to justify a different outcome.


And that day could come long before challenges to the new state laws make their way up the appellate ladder. Next week, the justices will consider whether to again take up the case of a former Virginia high school student, Gavin Grimm, who claimed that a rule barring him from using boys bathrooms in school violated Title IX and the 14th Amendment’s Equal Protection Clause.

Grimm won in a federal appellate court, in part because the Obama administration’s Department of Education guidance was on his side. But then Trump’s administration rescinded that guidance, and that brought the case — and the possibility that the Supreme Court would then weigh in — to an end.

It would be fitting if the high court agreed to put the case back on its docket for next term, before it adjourns at the end of this month — Pride Month — commemorating the Stonewall uprising 52 years ago. It will serve as a marker of how long and hard-fought the struggle for LGBTQ equality has been, and a reminder of how much more work needs to be done and how much resistance remains. Hopefully, in the end, the court will make that work a bit easier.