Whither Bostock?

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

What will be the fate of Bostock v. Clayton County, Georgia, the Supreme Court’s 2020 landmark ruling protecting gay, lesbian, and transgender individuals from employment discrimination? Over the last year, the court has failed to follow the logic of Bostock in upholding discrimination against transgender individuals. And at the oral arguments on Jan. 13, in two cases involving state laws barring transgender girls and women from participating in sports that correspond to their gender identity, the oral arguments gave the strong sense that a majority of the justices are likely to uphold the state laws, making even more salient the question of what will be left of Bostock.

Bostock v. Clayton County, Georgia

In Bostock, the Supreme Court ruled, 6-3, that Title VII’s prohibition of employment discrimination “because of sex” protects gay, lesbian, and transgender individuals. Justice Neil Gorsuch wrote for the court, joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan.

Actually, there were three cases before the court, although all were decided in one opinion. Bostock and Altitude Express v. Zarda involved men who were fired for being gay. R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission involved Aimee Stephens, a funeral home director, who was fired for being a transgender woman.

The court’s holding was clear and emphatic. It declared: “In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee.  We do not hesitate to recognize a necessary consequence of that legislative choice: An employer who fires an employee merely for being gay or transgender defies the law.”

Gorsuch’s majority opinion stressed the plain meaning of the prohibition of discrimination “because of sex” in Title VII. A simple example illustrates the basis for this conclusion. Imagine an employee named Chris. Chris and the employer communicate by text and email but never have met in person or talked by phone. Chris often has referred to a husband in discussing evening or weekend plans. When Chris and the employer meet, the employer is surprised that Chris is male. The employer fires Chris, saying that he does not want to employ gay people. If Chris were female, Chris would still have the job. That, by definition, is employment discrimination because of sex. 

Likewise, the court’s reasoning in ruling in favor of Aimee Stephens was that Stephens would have continued to have the position as a funeral director at Harris Funeral Homes if Stevens were male, but she lost the job for presenting as female. That, too, is employment discrimination because of sex.

Although Bostock was about interpreting Title VII, its reasoning has much broader implications. The court concluded that “[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”  This should apply to other federal statutes – and there are over 100 – that prohibit sex discrimination. 

This reasoning also has implications under the equal protection clause of the Fourteenth Amendment. Specifically, if discrimination based on sexual orientation and gender identity are seen as forms of sex discrimination, what is called intermediate scrutiny should be applied to such claims. The Supreme Court has used intermediate scrutiny for sex discrimination since 1976. Under this standard, a law that discriminates against a particular group can only be upheld if it is substantially related to an important government purpose.

The failure to follow Bostock

In 2025, the Supreme Court decided three cases – one on the merits docket and two on the emergency docket – that involved discrimination against transgender individuals. In each, the court, by a 6-3 margin, ruled in favor of the government and allowed for the discrimination.

In United States v. Skrmetti, the court upheld a Tennessee law that prohibited gender affirming care for transgender youth. Roberts’ majority opinion said that the law was not sex discrimination because it prohibited gender affirming care for both boys and girls. And the court said that was not discrimination based on gender identity because both cisgender and transgender individuals could use drugs such as puberty blockers for some purposes; they were prohibited only for the purpose of gender transition. The court did not reach the issue of the level of scrutiny to be used for gender-identity discrimination, although Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett wrote concurring opinions arguing that only rational basis review should be used (in which the court gives great deference to the state).

The court’s opinion said that Bostock was irrelevant and declared: “We have not yet considered whether Bostock’s reasoning reaches beyond the Title VII context, and we need not do so here.” This was because the court said that the law would prohibit administration of hormones for gender transition regardless of the sex or gender identity of the individual.

Sotomayor, writing for the three dissenters, strongly disagreed and said that the Tennessee law was entirely about denying care to transgender individuals and that under Bostock this was discrimination both based on sex and on gender identity. She wrote that the Tennessee law “discriminates on the basis of transgender status is yet another reason it must be subject to heightened scrutiny.  For one, this Court already decided in Bostock that ‘it is impossible to discriminate against a person for being . . . transgender without discriminating against the individual based on sex,’ and sex discrimination is of course subjected to heightened scrutiny.”

Additionally, in two cases on the emergency docket, the court without opinion stayed preliminary injunctions by lower courts that prevented the Trump administration from discriminating based on gender identity. In United States v. Shilling, the court allowed the Trump administration to bar transgender individuals from military service. In Trump v. Orr, the court allowed the State Department to require that a person’s passport state that individual’s sex assigned at birth.

Laws barring transgender girls and women from competing in sports

In the cases heard on Jan. 13, the six conservative justices seem strongly inclined to uphold state laws that prevent transgender girls and women from participating in sports that correspond to their gender identity. Little v. Hecox involves Lindsay Hecox, a 24 year-old transgender woman who wanted to try out for the women’s track and cross-country teams at Boise State University. Idaho’s Fairness in Women’s Sports Act prohibits transgender women and girls from participating in women’s and girls’ sports in public K-12 schools and universities, requiring teams to be designated by biological sex (male, female, co-ed). Hecox challenged the law and the federal court of appeals ruled in her favor, although she now urges the Supreme Court to dismiss the case as moot because she no longer wishes to compete and will not in the future.

West Virginia v. B.P.J. involves a challenge to a West Virginia law, the Save Women’s Sports Act, which bars transgender women and girls from participating on women’s and girls’ sports team in public secondary schools and colleges. The challenger is a 15 year-old transgender girl who wanted to participate in sports in middle school. B.P.J. has publicly identified as female since the third grade, takes medicine to stave off the onset of male puberty, and has also begun to receive hormone therapy with estrogen. The federal court of appeals also ruled in favor of her.

Bostock should be crucial in both cases. Idaho, echoing President Donald Trump, argues in its brief that there are two sexes, male and female, determined by what is assigned at birth and reproductive organs. But Bostock implicitly rejects this in recognizing gender identity and holding that discrimination based on it is sex discrimination. 

One of the issues in West Virginia v. B.P.J. is whether the state’s law violates Title IX of the Civil Rights Act, which prohibits educational institutions receiving federal funds from discriminating “on the basis of sex.” West Virginia’s brief distinguishes Bostock by declaring, “Title VII ‘is a vastly different statute’ from Title IX,’” pointing to the difference in the wording of the laws. But the actual statutory language belies this assertion. Title VII prohibits discrimination in “employment practice[s]” “because of” sex. Title IX prohibits discrimination “under any education program” “on the basis of sex.”  

A great deal of time was spent at the oral arguments on what does “sex” mean. Bostock, though, answers this question for Title VII in expressly holding that “sex” includes sexual orientation and gender identity, and there is no reason this is any different for Title IX. If the court follows Bostock, laws prohibiting transgender athletes from competing are also sex discrimination in violation of Title IX.

There is also the constitutional question of whether barring transgender athletes is sex discrimination, requiring that the governments meet intermediate scrutiny. The reasoning of Bostock again answers this question. The only reason that these transgender individuals cannot compete is because of their sex. Of course, under equal protection analysis, there is the separate question of whether the government can justify its discrimination, proving that it is substantially related to an important government purpose. The states argue that their laws are necessary to protect women’s and girls’ sports. But that is a factual question for the district courts, not one for the Supreme Court to decide. And in Hecox, the district court said that there is a “dearth of evidence in the record to show excluding transgender women from women’s sports supports sex equality, provides opportunities for women, or increases access to college scholarships.”

Conclusion

Little v. Hecox and West Virginia v. B.P.J. will be important in deciding the legality of state laws barring transgender girls and women from competing in sports. But they also will have even larger significance in indicating whether the court will follow, or abandon, its landmark ruling in Bostock, one of the most important decisions in history protecting gay, lesbian, and transgender individuals from discrimination.

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https://www.scotusblog.com/2026/01/whither-bostock/ January 15, 2026 at 09:30AM