The Puzzling SCOTUS Ruling on Transgender Rights and Title IX
Last week, in Dep't of Education (DOE) v Louisiana, a 5-4 Supreme Court rejected the federal government's request to stay, in part, a Fifth Circuit ruling that invalidated DOE rules that, among other things, forbid schools, colleges, and universities receiving federal funds from discriminating on the basis of gender identity or sexual orientation. To readers just following the headlines, that would have been deeply puzzling.
After all, just four years ago, in Bostock v. Clayton County, the Court held that forbidden sex discrimination under Title VII includes forbidden discrimination based on gender identity or sexual orientation. Subject to a limited exception I discuss at the end of today's essay, the language of Title IX is not materially different from that of Title VII, and four of the six Justices in the majority in Bostock are still on the Court, but one of the ones who isn't--Justice Breyer--was replaced by Justice Jackson, who presumably would not want to see Bostock overruled. Yet Chief Justice Roberts, who joined the majority in Bostock, was in the majority in last week's ruling. Did he change his mind? Has Bostock been overruled sub silentio?
The short answer is almost certainly no, but last week's ruling is nonetheless very puzzling--especially so because on the key issue, the ruling was 9-0. I'll give a very brief explanation why. Readers who want a more detailed explainer on that point should consult Ian Millhiser's excellent coverage on Vox.
To simplify, a group of red states successfully challenged three new rules contained in a final agency rulemaking by the DOE. One stated that sex discrimination under Title IX encompasses gender identity and sexual orientation discrimination--what we might call the Bostock rule. The other two need not concern us because in the Supreme Court, the government did not seek a stay of the lower court rulings invalidating them. Rather, the federal government objected to the district court's injunction of the entire rulemaking, which included matters having nothing to do with discrimination based on gender identity or sexual orientation and which the plaintiffs did not allege injured them. That is, the federal government sought a narrowing of the injunction so that it would only forestall implementation of those other two challenged provisions, allowing the core provision--the Bostock rule--and all of the other provisions that the plaintiffs did not allege injured them to go into effect.
In rejecting the government's request, five Justices allowed the entire rulemaking to remain enjoined. Notably, even the dissenters (the three Democratic appointees plus Justice Gorsuch) would have allowed the Bostock rule to remain enjoined. Their beef was with the injunction of the other, unrelated and unchallenged, aspects of the rulemaking. Why didn't they also vote to reinstate the Bostock rule?
Millhiser floats one possible answer. He suggests that the Democratic appointees might have wished to remain true to their principled opposition to major interventions on the shadow docket. But as he also points out, if so, they could have joined the majority and not intervened at all. Maybe, but maybe they thought that enjoining parts of the rulemaking that weren't even challenged as injuring the plaintiffs was a step too far, justifying relief even on the shadow docket.
Meanwhile, why did Justice Gorsuch join the other dissenters? As the author of Bostock, perhaps he felt especially protective of that decision? That doesn't work as an explanation, however, because, as noted above, the dissenters would have allowed the injunction against the portion of the rulemaking that simply translates Bostock from Title VII to Title IX.
Here's an alternative explanation for Justice Gorsuch's vote: he is hostile to the practice of vacatur, by which federal courts invalidate regulatory actions--including rulemakings like the one at issue in DOE v. Louisiana--in their entirety based on the authorization in Section 706 of the Administrative Procedure Act for a court to "set aside" unlawful agency actions. Justice Kavanaugh defended vacatur just this last Term in a concurrence in Corner Post v. Bd. of Governors, but Justice Gorsuch criticized it last year in his concurrence in the judgment in United States v. Texas.
However, Justices Thomas and Barrett joined Justice Gorsuch's separate opinion last year critiquing vacatur, so if that's the basis for Justice Gorsuch's joining the dissenters in DOE v. Louisiana, why didn't they vote with him? The answer can't be that they dissented in Bostock. For one thing, Justice Barrett didn't dissent in Bostock; she wasn't on the Court yet. More fundamentally, recall that none of the dissenters in DOE v. Louisiana would have granted the government's request that the injunction against the Bostock rule be lifted; the dissent was entirely about limiting the scope of relief to the elements of the rulemaking that the plaintiffs alleged injured them. Thus, Justice Thomas could be fully intending to overrule Bostock when he gets the chance but, based on his view about vacatur, could have also voted to cut back on the scope of injunctive relief in DOE v. Louisiana.
At the end of the day, then, we're left puzzling over why various Justices voted as they did. More importantly, we're also left with uncertainty about whether Bostock applies in the Title IX context. As I noted above, there are some differences between Title VII and Title IX. The most important one is that Title IX expressly permits covered schools to maintain sex-segregated living facilities, and a longstanding regulation implementing Title IX permits sex-segregated "toilet, locker room, and shower facilities." Does that mean that Bostock doesn't extend to Title IX?
No. For one thing, it may be legal to operate separate men's and women's dormitories, locker rooms, and restrooms, but that doesn't mean it's legal to require transgender students to live in or use the facilities that correspond with their sex assigned at birth but not the sex in which they currently identify. So the statutory and regulatory carveouts don't necessarily preclude the application of the Bostock rule to the very facilities listed in those carveouts.
Moreover, even if one reads the carveouts for all they're worth, they are, to state the obvious, carveouts. If Title IX recipients are permitted to deny transgender students access to the listed facilities based on their sex assigned at birth (and to be clear, I don't think they are so permitted), that doesn't undermine the applicability of the Bostock logic in other settings. A school or university that insisted on deadnaming trans students or that allowed hostile environment harassment of trans students would, under the non-carved-out logic of Bostock, thereby violate Title IX's core prohibition of sex discrimination under Title IX.
Eventually, the Court will need to decide to what extent, if any, Bostock applies to Title IX. DOE v. Louisiana does not preclude its full or nearly full application. Nonetheless, by failing to satisfactorily explain why they each voted the way they did, the Justices muddied the waters and left room for the substantial cadre of lower court judges who are hostile to Bostock to continue to make mischief.