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The Supreme Court’s new decision could sink Trump’s anti-LGBTQ agenda

Bostock v. Clayton County is a potentially transformative victory for LGBTQ rights.

HHS Office of Civil Rights Director Roger Severino, a leading opponent of LGBTQ civil rights within the Trump administration.
Aaron P. Bernstein/Getty Images

Life comes at you fast.

On Friday, the Trump administration finalized a regulation permitting health providers to discriminate against LGBTQ patients. Three days later, the Supreme Court handed down a landmark decision in Bostock v. Clayton County, which casts the legality of this regulation into serious doubt.

The Court’s decision in Bostock does not raise significant clouds of doubt over the new health care regulation alone: Trump’s education department also opposes anti-discrimination protections for transgender students, but education discrimination against LGBTQ students is now likely to be held illegal after Bostock.

Bostock held that Title VII of the Civil Rights Act of 1964, which bans discrimination “because of ... sex,” is broad enough to forbid workplace discrimination on the basis of sexual orientation or gender identity. If an employer “intentionally relies in part on an individual employee’s sex when deciding to discharge the employee” or “if changing the employee’s sex would have yielded a different choice by the employer,” then an employer violates Title VII, according to Bostock.

For example, if an employer permits male employees to date and have sex with women, but doesn’t permit female employees to do the same, then it engages in forbidden sex discrimination.

But Title VII is hardly the only federal law prohibiting sex discrimination. Title IX of the Education Amendments of 1972 provides that “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.” The Affordable Care Act similarly prohibits discrimination on the basis of sex by “any health program or activity, any part of which is receiving Federal financial assistance.”

As a practical matter, these two provisions apply to nearly all public schools, colleges, universities, and hospitals, because nearly all of those institutions receive federal assistance of some kind — such as through student financial aid or through Medicare and Medicaid.

Bostock, in other words, strongly suggests that neither educational institutions nor health care providers may discriminate against LGBTQ individuals. If that’s the case, the Trump administration’s new health care regulation should fall.

Indeed, it is likely that lawyers challenging anti-LGBTQ discrimination by schools and health providers are already notifying judges of the Court’s decision in Bostock — and that other lawyers are already preparing new lawsuits hoping to strike down the new health care regulation.

The new anti-LGBTQ rules, briefly explained

Both the Affordable Care Act and Title IX ban discrimination “on the basis of sex.” Although this language is different from the statutory language in Bostock, which forbids discrimination “because of ... sex,” the Supreme Court has indicated that the words “on the basis of” and “because of” have the same meaning.

In Franklin v. Gwinnett County Public Schools (1992), for example, the Supreme Court held that Title IX’s ban on discrimination “on the basis of sex” imposes the same duty to avoid sexual harassment that Title VII imposes on employers. Similarly, in Safeco Ins. Co. of America v. Burr (2007), the Court considered an amendment to a federal law that changed the language of a statute from “because of” to “based on.” But the Court concluded that this amendment did not matter because “there was no indication that this change was meant to be a substantive alteration of the statute’s scope.”

Until Bostock, however, the meaning of the word “sex” was hotly contested. Though the Court briefly considered a case brought by a trans plaintiff challenging discrimination by a public school district, the Supreme Court punted that case back down to a lower court. Bostock is the Court’s first direct pronouncement on whether anti-LGBTQ discrimination constitutes “sex” discrimination.

The Obama administration read Obamacare’s ban on discrimination “on the basis of sex” broadly and similarly to the way the Supreme Court interpreted the word “sex” in Bostock. The Trump administration’s new regulations, by contrast, read the word “sex” much more narrowly. The Trump administration claims that its narrow interpretation reads Obamacare “according to the plain meaning of the word ‘sex’ as male or female and as determined by biology.”

When a federal statute is ambiguous and can reasonably be interpreted in multiple ways, the Supreme Court’s decisions permit federal regulators to choose from among those reasonable interpretations. But Bostock eliminates any ambiguity regarding the meaning of the word “sex.”

It has now been firmly established by the Supreme Court of the United States that a ban on “sex” discrimination also bans discrimination on the basis of sexual orientation or gender identity. Bostock, in other words, should establish once and for all that no educational institution or health provider may discriminate against LGBTQ individuals — at least if they wish to receive federal funds.

The trans military ban may still survive

There is, however, at least one part of the Trump administration’s anti-LGBTQ agenda that is likely to survive contact with the courts. In 2017, Trump announced his intention to prohibit transgender service members from openly serving in the military. Although some lower courts struck down this ban, the Supreme Court voted 5-4 to temporarily reinstate the ban.

It’s likely that the Court did so because it often defers to the elected branches on questions relating to the military or to national security. Indeed, in Rostker v. Goldberg (1981), the Supreme Court permitted the Selective Service System to engage in sex discrimination. So Rostker suggests that this administration might enjoy similar deference if it wishes to discriminate against transgender service members.

Outside of the military, however, Bostock is a sweeping decision with implications stretching far beyond employment discrimination. Though the trans military ban may survive, much of the rest of the Trump administration's anti-LGBTQ agenda is in serious trouble after Bostock.

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