Bostock v. Clayton CountyThe landmark Supreme Court case stating that LGBTQ+ people are protected from workplace discrimination has quickly become a critical support in legal fights for LGBTQ+ rights. It was decided in 2020. According to the, the decision has been cited at least 250 times in other cases. ACLU, and it serves as the backbone of the Biden administration’s Title IX interpretationAs well as support for interpretations Violence Against Women ActThe Affordable Care Act, and other protections addedTo the Fair Housing Act.
The role of BostockIt is also a potential target for legal pushback in these cases.
A Tennessee federal judge issued an injunction last month. preemptively blockingThe Biden administration has not enforced its guidance to expand LGBTQ+ protections in Title IX, which prohibits discrimination in schools, according to the lawsuit. While the ruling only applies to the 20 states that joined the lawsuit — and experts say the suit’s argument flies in the face of legal precedent — it is one recent example of court battles that aim to limit Bostock’s reach, several experts tell The 19th.
LGBTQ+ legal observers anticipate more battles in front conservative courts to try to limit the scope Bostock.
“We’re going to have to fight hard against that,” said Shannon Minter, legal director of the National Center for Lesbian Rights (NCLR). “We’re going to have to litigate this issue all over the country.” Hopefully most courts will agree that the reasoning in BostockHe said that it is applicable in schools and to transgender and LGBTQ+ students.
Minter stated that he found the Tennessee case, decided by U.S. District Judge Charles Atchley to be troubling.
“I think this decision is completely wrong, poorly reasoned, incorrect,” Minter said. “But it is a warning sign about how aggressively we’re going to have to fight because our opponents are fighting no holds barred to strip every right and protection from LGBTQ+ people, including transgender students.”
LGBTQ+ experts claim that since the Supreme Court laid the foundations in, the Supreme Court has been a clear example of LGBTQ+. Bostock for its protections to apply in other scenarios — due in part to the traditional legal link between Title VII and Title IX, as well as the court’s explanation of how sex discrimination must be applied to discrimination against gay or trans people — it is concerning and baffling that a judge would side with the plaintiffs in the Tennessee lawsuit
“By claiming that Bostock doesn’t protect LGBTQ+ people, this judge has sent a very public and very wrong message about what our nondiscrimination laws do for us, and that’s a very real harm,” said Chris Erchull, staff attorney at GLBTQ Legal Advocates & Defenders (GLAD).
Aaron Ridings, deputy executive director for public policy and research at GLSEN, which advocates for LGBTQ+ students, said that the Tennessee injunction is one part of broader attacks on LGBTQ+ rights that ultimately harm students and which, he fears, means they’re more likely to be exposed to homophobia, transphobia, or racism at school.
Atchley’s decision creates a fraught situation for LGBTQ+ people in many of the states that joined the lawsuit. Tennessee and its fellow plaintiff states argued that the Biden administration’s interpretation of Title IX keeps them from enacting or enforcing anti-trans laws — even though not all of them have managed to pass anti-trans bills into law, said Ezra Ishmael Young, who teaches constitutional law at Cornell Law School.
“They’re trying to carve out space so they could have these laws in the future. And they’re saying until we get the political power to pass these laws, which they might never have, we don’t want the federal government doing what it’s doing. That makes no damn sense and that’s destructive,” Young said.
The immediate legal effects of the Title IX injunction are unclear, especially since the latest guidance from the White House has yet to be formalized — and the DOJ has not yet signaled its response. Experts believe that the Education Department should be allowed to continue investigating anti-trans harassment at schools and that LGBTQ+ individuals can still sue their employers for discrimination.
In June, the Education Department’s office for civil rights found that a California school district had violated Title IX due to its failure to respond to a transgender student being repeatedly harassedAnother student. The school district agreed to amend its harassment policies as a voluntary resolution after the investigation. agreement.
Young and Erchull stressed that this new injunction shouldn’t stop the Education Department from taking similar actions in other states that are affected by the Tennessee lawsuit. The agency has yet to respond about how it will continue such efforts following the judge’s order.
“It’s really hard to see what it is that the court’s enjoining here or what will change as a result of it,” Erchull stated that, in particular, LGBTQ+ people can still sue employers if they feel they have been discriminated against. Minter stated that students and their parents can still sue schools.
In the meantime, more lawsuits challenging Title IX’s LGBTQ+ protections have been filed. Last week, 22 states — again led by Tennessee’s attorney general — suedThe U.S. Department of Agriculture requiringStates receiving federal nutrition assistance money are required to investigate discrimination on the basis of gender identity or sexual orientation and to update their nondiscrimination policy. The administration issued the guidance based on Biden’s Title IX interpretation, as supported by Bostock.
Also last week, Florida’s education commissioner sent a memo urging the state’s superintendents and school boards to ignore the Biden administration’s Title IX interpretation, including that guidance from the USDA. Manny Diaz, Florida’s education commissioner, cites the Tennessee suit that just won a preliminary order as part of his reasoning.
The agency’s Title IX interpretation still has a long way to go before it becomes an enforceable rule, as it is still going through public comment. Young stated that even after the rule has been finalized, there would be no grounds for challenging it.
Whether Atchley’s injunction over the new Title IX guidance will be appealed by the Justice Department and reach the U.S. Court of Appeals for the 6th Circuit is also an open question — and LGBTQ+ experts differ on how they would expect the court to respond. The DOJ declined to comment through a spokesperson citing pending litigation.
Anya Marino, clinical instructor at Harvard Law School’s LGBTQ+ Advocacy Clinic, said she would be “very surprised” to see the court ignore previous decisions made outside of BostockThat affirmed that discrimination based on gender noncompliance does not constitute sex stereotyping, and violates either Title VII of Title IX.
“But it’s even more astounding to me that a court would create such a narrow carveout regarding the rules imparted by the Supreme Court in Bostock,” she said, referring to the Tennessee judge’s decision.
Anthony Michael Kreis, who teaches constitutional law and employment discrimination at the Georgia State University College of Law, said that while the outcome of the Tennessee judge’s ruling if appealed to the Sixth Circuit is unclear, he is concerned about the current hostility against LGBTQ+ rights.
“I think we’re dealing with a much more hostile environment generally against LGBTQ rights, which is not helpful for the litigation environment,” Kreis said. This hostility is evident in anti-LGBTQ+ and anti-trans bills. potentially after the overturningRoe v. Wade has made him more pessimistic than ever before.
“That makes me very uneasy, but whether that translates into more hostile rulings from federal judges, I think is a different question, and one that remains to be seen, but is certainly not an environment that I would want to litigate in,” he said.
