The Republicans Who Support Trans Rights (Part 1)
Bostock, Title IX, and low-key apostates
“Few facts are needed to appreciate the legal question we face.”
-Neil Gorsuch, Associate Justice of the US Supreme Court (2020)
Most Americans who support “trans rights” are progressives with an earnest belief that it’s a social justice issue. But some public servants who’ve stood up for the desires of trans-identified workers, prisoners, and children are conservative. What’s their motive?
The most consequential political anomaly may be Bostock, a 2020 Supreme Court decision that held firing a worker for “being transgender” constituted illegal sex discrimination. A conservative justice wrote for the 6-3 majority, which included a second conservative.
In this post I’ll dive into Bostock and its aftermath, which includes a Title IX decision that came down last week in Alabama. It defended letting boys into girls’ locker rooms. The Trump judge who issued it plays an intriguing role in the ACLU ethics scandal that’s currently unspooling in Birmingham.
This is Part 1 of an essay on Republicans who support trans rights. Part 2 will tell the stories of politicians and bureaucrats.
Bostock v. Clayton County (2020)
In 2020, the US Supreme Court ruled 6-3 that Title VII of the Civil Rights Act barred employers from firing workers for “being homosexual or transgender.” Neil Gorsuch, who’d been appointed to the bench by Donald Trump, wrote the decision on behalf of four liberals and John Roberts, a George W. Bush appointee. The three dissenters were conservatives Samuel Alito, Clarence Thomas, and Brett Kavanaugh.
The ruling is known as Bostock. It “consolidated” three lawsuits, only one of which concerned a trans-identified plaintiff – Aimee Stephens, a man fired by a funeral home after announcing he planned to pretend to be a woman at work. The ACLU represented Stephens and one of the two gay plaintiffs. The Alliance Defending Freedom – the ACLU’s right wing counterpart – represented the funeral home.
What the Parties Said About Gender Identity
The ACLU submitted the usual claptrap about gender identity, using the term without defining it:
“Although most people have a gender identity that matches their sex assigned at birth, this is not true for the at least 1.55 million transgender people who live in the United States today.”
The ADF took a whack at gender identity theory (emphasis in original, citations omitted):
“‘[T]ransgender’ is an umbrella term for persons whose gender identity, gender expression, or behavior does not conform to that typically associated with their biological sex. So if this Court were to judicially rewrite ‘sex’ to include ‘transgender status,’ it would create an entirely new panoply of claims for biological men who identify, express, or behave as women, atypical men, non-binary (both male and female), or genderqueer (neither male nor female). And because ‘gender identity’ is ‘fluid,’ ‘internal,’ and authenticated only by self-profession, an employee’s claimed transgender status could change.”
This attack isn’t fatal. Warning about “new” rights claims and “change” is standard conservative fare that’s likely to make a judge’s eyes glaze over.
Later ADF spirals:
“[P]utting the force of this Court behind the [pro-trans lower court’s] views about gender identity risks placing greater strains on parents whose children are experiencing gender dysphoria. Courts have already begun to limit parental rights and even to remove children from custody if parents will not consent to hormone treatments …”
This brief was filed in June 2019. At that point no state had banned PGM. Abigail Shrier’s Irreversible Damage hadn’t been published yet. PGM wasn’t much in the news. ADF’s argument that this funeral home case would lead to child mastectomies might have sounded like a Substack fever dream to the justices – except that Substack was another trend they’d never heard of.
The Peanut Gallery
Dozens of entities filed amicus briefs on behalf of the funeral home.
The Women’s Liberation Fund (WoLF) was blunt:
“‘Gender identity’ is simply a belief system, invented and embraced by a small subset of society, which claims that a person’s affinity for sex stereotypes is innate[.]”
Alluding to the lower court’s decision in favor of Stephens, WoLF went on:
“[T]o assert … that sex-based stereotypes have ‘a deeply personal, internal genesis’ is insulting to women and girls who reject the prison of femininity.”
We can’t be sure the justices read WoLF’s cogent brief. We just know it’s possible that Gorsuch knew gender identity was vaporous when he drafted his entire opinion in favor of trans rights without once using the term “gender identity.”
The Decision
Though he avoids writing “gender identity” into law, Gorsuch falls into the ACLU’s other traps:
He treats gay and trans as two parallel concepts that should be addressed with the same logic.
He treats “sex” like a word to be defined rather than an objective reality.
He treats “transgender” like an objective reality rather than a word to be defined.
He refers to sex as “identified … at birth,” implying it can change.
He finds that there are “distinctions” – plural – between the sexes rather than just one big one that makes sex binary.
Finally, in an act that must have been a deliberate decision rather than falling into a trap, Gorsuch asserts that employers should hold trans-identified men to the same (unspecified) standards as women, rather than as men.
Every one of those concessions to the ACLU is bound to be cited in all sorts of trans lawsuits because that’s how American law works — judges incorporate snatches of higher-court analysis for their own decisions even if the contexts are quite different. We’ll get to those other contexts in a minute, but first, more detail on Bostock.
Defining Sex
In Gorsuch’s telling, the three Bostock cases are simple:
“Few facts are needed to appreciate the legal question we face. An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender …
“Aimee Stephens worked at R. G. & G. R. Harris Funeral Homes in Garden City, Michigan. When she got the job, Ms. Stephens presented as a male. But two years into her service with the company, she began treatment for despair and loneliness. Ultimately, clinicians diagnosed her with gender dysphoria and recommended that she begin living as a woman. In her sixth year with the company, Ms. Stephens wrote a letter to her employer explaining that she planned to ‘live and work full-time as a woman’ after she returned from an upcoming vacation. The funeral home fired her before she left, telling her ‘this is not going to work out.’”
Title VII bars discrimination “on the basis of sex.” What is sex? I’d say it’s a property that exists in nature and call a biologist as an expert witness to explain it with authority.
ADF took a different route, treating sex like a word that was open to interpretation. They cited a definition used in 1964, when the statute was enacted: “status as either male or female [as] determined by reproductive biology.”
The ACLU argued, in Gorsuch’s words:
“[E]ven in 1964, the term [sex] bore a broader scope, capturing more than anatomy and reaching at least some norms concerning gender identity and sexual orientation.”
Gorsuch’s takeaway (referring to the ACLU’s side as “employees”):
“[B]ecause … the employees concede the point for argument’s sake, we proceed on the assumption that ‘sex’ signified what the employers suggest, referring only to biological distinctions between male and female.”
“Distinctions” is plural, suggesting that sex is not a binary (one big distinction) but rather a hodgepodge of characteristics which can line up in various ways. This is the spear of the genderist attack on the reality of sex. No wonder the ACLU “conceded the point.”
Note that Gorsuch’s approach is “textualist,” meaning that he’s resolving big questions by looking words up in the dictionary. Textualism is beloved by conservatives (including perhaps ADF lawyers) because the late Justice Antonin Scalia championed it as an alternative to, say, aiming for fair outcomes or considering the broader purpose of a statute. In theory it’s supposed to result in narrow, apolitical rulings that don’t engage in social engineering.
The part I ellipse’d out of that quote reads: “nothing in our approach to these cases turns on the outcome of the parties' debate [about the definition of sex] …” This is wild. Everything turns on it! How do you define transgender without it?
Defining Transgender
Gorsuch doesn’t define transgender. We have to figure out what he means by using clues. He refers to Stephens “liv[ing] and work[ing]” as a woman, says Stephens “revealed” his transgender status, and alludes to unspecified “traits or actions:”
“If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”
Maybe “traits” means clothing. Can the funeral home fire men who aren’t transgender for wearing a dress? Well, again, Gorsuch doesn’t tell us what transgender means.
Maybe “actions” means barging into the women’s bathroom – no, nevermind. Gorsuch says “we do not purport to address bathrooms, locker rooms, or anything else of the kind.” Just firing. Firing a man for busting into the women’s bathroom? Don’t get smart. This is a decision about “few facts.”
Keep in mind that regular workplace sex discrimination is broadly illegal; men and women are supposed to be treated the same. So it’s hard to imagine what Gorsuch could be talking about besides dress codes and bathroom use (the most commonly used exceptions to discrimination law).
By the way, Gorsuch also flubs homosexuality. Although sexual orientation actually is an objective natural phenomenon, employers don’t run brain scans to tell if their workers are gay. It doesn’t make sense to invent legal standards about “being homosexual” if that’s not a thing that is ever proved. Gorsuch should have protected workers who “are perceived to be homosexual.”
Gorsuch concludes – after much tedious sophistry – that firing someone for being gay or trans is sex discrimination because “homosexuality and transgender status” have to do with sex. If you fire someone for being gay/trans, their sex is an ingredient in your judgment of them (they are a man who dates men), so it’s sex discrimination.
This is a cocky opinion. Gorsuch presumes that he can defuse the explosive topic of trans rights without touching the core of it, gender identity. And he makes a big show of letting textualism save the day with a narrow-seeming ruling, but elevating words over reality is the ACLU’s entire long-term game plan. When it comes to transgender issues, textualism shows its postmodern side. It doesn’t lead to “conservative” outcomes.
The three conservatives’ dissents use the term “gender identity” but don’t adopt WoLF’s critique of it, instead focusing their arguments on points like Congress’s intent.
The Biden Administration Runs with Bostock
Title IX of the Civil Rights Act bars schools that receive federal funds from discriminating against students on the basis of sex. It carves out one area where schools “may” discriminate: “toilet, locker room, and shower facilities.” For decades after its enactment in 1972, schools throughout the US have exploited that carve-out with gusto.
The US Education Department administers Title IX. In April it narrowed the bathroom carve-out. Under the new regulations, schools can only segregate these facilities by sex if they let “transgender” students choose their sex.
These new regs (which include other big changes) went into effect on August 1, 2024 – in the schools where no court had enjoined them.
The Education Department’s Rationale
In its rationale for the changes, the ED adopts some language from Bostock about discrimination. But whereas Bostock pretends gender identity doesn’t exist, the ED writes it in all over the place, most crucially:
“Discrimination on the basis of sex includes discrimination on the basis of sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.”
Note the slide from Bostock’s “distinctions” to “characteristics” – the term favored by sex nihilists.
Amusingly, the ED claims that defining sex is “unnecessary” to defining sex discrimination – I think because it doesn’t like Bostock’s gender-free definition.
A court reviewing the Title IX rewrite should define sex the same way Bostock does, as “biological distinctions between male and female.” I don’t like that “s” on the end of distinction, but Title IX uses the same language as Title VII and should be interpreted the same way.
This doesn’t mean the ED’s rule should be upheld. If a school bars trans-identified boys from the girl’s locker room based on their “biological distinctions,” that should be read as discrimination based on sex (which is legal in this context).
Some federal appeals courts disagree. In Grimm, for example, the Fourth Circuit held a school’s sex-based bathroom policies to be discriminating on the basis of gender identity because they “prohibit [trans-identified students] from affirming their gender.”
So the bathrooms are affirming cis kids’ gender but not affirming trans kids’ gender – a “denial of psychological services” charge against the toilet.
The Supreme Court has not addressed this issue yet. It will eventually, and it should reject the Fourth Circuit’s logic. Sex-based bathroom policies don’t discriminate by gender identity. To see that, you just have to read them literally – like a textualist would.
Alabama v. Cardona (2024)
Red states and parent advocacy organizations have sued to block the Title IX rewrite. Out of at least eight federal lawsuits, district courts have issued preliminary injunctions in seven of them. But on July 30, someone finally ruled for the Biden administration: Judge Annemarie Carney Axon, an appointee of President Donald Trump.
Crossover Episode
Axon is an enigmatic character from another gender tale.
In 2022, two rival teams of trans rights lawyers unethically tried to steer their Alabama pediatric gender medicine lawsuits into a friendly courtroom. One of the suits, Ladinsky, was assigned to Axon. She then begged off citing “the interest of efficiency and judicial economy.” The case landed in front of her colleague, another Trump appointee named Liles Burke.
The trans-rights lawyers went into “a bit of a panic” at this development. They feared Burke and thought he had “snagged” Ladinsky from Axon, whom they considered a “favorable draw” or a “great draw.” This opinion was informed by gossip from the team’s local counsel, whose husband worked with Axon’s husband. Three of the attorneys later reported, when pressed by judges in an ethics inquiry, that they thought Axon would be sympathetic to them because she had children.
The judges running the ethics inquiry noted in their report that Axon had rejected Ladinsky because she was busy presiding over a trial that would last a few more weeks. Later it came to light that wasn’t true. It’s unclear where the misinformation originated. We’re left with a tantalizing question: what’s the real reason Axon didn’t want Ladinsky?
With that, let’s look at Axon’s recent Title IX ruling.
The Decision
The plaintiffs – Alabama, Florida, Georgia, South Carolina, and the nonprofits Independent Women’s Law Center, Independent Women’s Network, Parents Defending Education, and Speech First, Inc. – sued the ED on the grounds that its Title IX rewrite violated the Administrative Procedure Act. The APA requires courts to strike down regs that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The lawsuit is similar but not identical to others brought against the Title IX rewrite.
The plaintiffs are represented by their Attorney Generals’ offices and the elite firm Consovoy McCarthy, which has lately been active on the anti-gender litigation scene. Their brief addressed several provisions in the new regs. I’ll focus on sex-segregated facilities (“bathrooms”).
The plaintiffs’ first step was to seek a preliminary injunction to block the new rule in the four states represented. Axon denied it because, she said, they were unlikely to succeed in the lawsuit.
The Tone
The tone of this opinion is cutting. In the words of my evil twin, the pro-trans Substacker Chris Geidner, Axon takes “umbrage at the plaintiffs’ briefings and arguments as inadequate — or even misleading — at every turn.”
Axon berates the plaintiffs for failing to develop a “fulsome record” of evidence. But their whole point is that the ED lacks evidence to justify its interpretation of Title IX. The burden should be on the government agency in a case like this.
Axon dings the plaintiffs for all sorts of things that strike me as petty issues, if they’re problems at all. For example, regarding an arcane procedural point, she complains that the plaintiffs cite authority from another circuit “without acknowledging its lack of binding authority on this court, and without attempting to describe what framework is or should be used in the Eleventh Circuit [where this court is located].” It may be that the Eleventh Circuit hasn’t ruled on this point before (just ask the lawyers at oral argument). And it’s silly to act scandalized that they didn’t say their precedent was from a different circuit. That much is plain from the citation, which judges and lawyers read along with the substance.
The Eleventh Circuit already has a school bathrooms decision on the books. In Adams, it determined that Bostock didn’t bar sex-segregated school bathrooms. After much hair-splitting, Axon concludes that because the ED “does not claim ‘sex’ means anything other than biological sex, [the new regulation] is not contrary to Adams.” But setting definitions aside, what about the outcome? Axon doesn’t get into the practical reality. Like Gorsuch in Bostock, she tries to make the whole case hinge on definitions.
Yet later Axon pooh-poohs definitions. To the plaintiffs’ charge that the ED didn’t define gender identity, Axon responds (citations omitted):
“During the rulemaking process, the [ED] declined to ‘further clarify’ the meaning of gender identity and explained that it ‘understands gender identity to describe an individual’s sense of their gender, which may or may not be different from their sex assigned at birth.’ … This court cannot find that the [ED] ‘entirely failed to consider’ the issue[] of how schools can define … students’ gender identities.”
She’s implying it’s OK for the government to leave controversial, foundational terms circularly defined in a regulation. (Opacity like this nearly guarantees high legal bills for school districts that will be attacked from all sides, among other problems.) Axon is also conflating the project of defining “gender identity” with verifying a student’s gender identity but I cut that brain-melter to protect your mental health.
Did Her Pages Get Stuck Together?
Axon disses the plaintiffs’ Bostock arguments:
“Plaintiffs’ argument that ‘the rule’ misapplies Bostock refers only to regulations that the Final Rule does not change[.]”
She means that the plaintiffs only discuss Bostock in the context of sports. But that’s false. Here they are arguing about Bostock and bathrooms (citations omitted):
“Even if Bostock were relevant under Title IX, the rule misapplies it. Bostock emphasized that, to determine whether an act ‘discriminate[s],’ a court must use a comparator—i.e., compare the plaintiff to ‘others who are similarly situated.’ In Bostock, male and female employees were similarly situated because ‘[a]n individual’s homosexuality or transgender status is not relevant to employment decisions.’ Here, by contrast, a student’s biology is relevant to decisions about athletics, bathrooms, and locker rooms. These programs are separated by sex because males and females, no matter how they identify, have different anatomies. Even the [ED] ‘strongly agrees’ that, for these reasons, schools ‘have a legitimate interest in protecting all students’ safety and privacy.’ Stated another way, prohibiting males from using the girls’ restroom is not discrimination based on ‘gender identity’; it is discrimination based on sex that Title IX expressly permits. In fact, allowing a male to use the girls’ restroom because of ‘gender identity’ while prohibiting other males who are not ‘trans-identified’ from using the girls’ restroom would be discrimination based on ‘gender identity.’ So even if Bostock’s reasoning applied, the Department unreasonably explained and applied it here.”
Anyway, the Eleventh Circuit has already responded to the plaintiffs’ appeal by staying operation of the new regs. Axon’s ruling has had no effect – unless her performance served some purpose in her personal life.
Rank Speculation
I should say I don’t know what Axon’s story is. It’s intriguing that the ethics-investigated attorneys wanted her to judge their case and said it was because she had kids. She’s 51, which is the median age of women who buy binders as Christmas presents. (Jamie Reed recently talked to Meghan Daum about the trans parent scene.)
But Axon might merely be a trans ally. As a former corporate lawyer, this would put her in line with her peers. And it would explain why she shrank from the PGM lawsuit but then vamped in the lower-stakes bathrooms case. Many flag-wavers know just enough to feel uneasy about PGM.
Bostock’s Implications for Pediatric Gender Medicine
The Supreme Court will review a PGM lawsuit in the next year – Skrmetti. Six of its justices were appointed by Republicans, but two of those ruled for trans rights in Bostock. Those two could form a pro-trans majority with the three liberals.
How will Bostock play into the Court’s PGM analysis?
The PGM lawsuits are brought under the US Constitution, not civil rights statutes. The relevant part of the Constitution doesn’t mention sex; plaintiffs are citing court decisions interpreting it. Textualism doesn’t direct judges to scrounge up an ancient dictionary in this scenario. They need to devise some other way of understanding sex.
They could use Bostock’s definition, since it would be crazy to have two definitions of sex floating around in one area of law. But it’s also crazy to use a definition based on a 1964 dictionary in a case that has nothing to do with the 1960s. This is why Gorsuch should have figured out what sex was, not just how it was defined.
Gorsuch should have figured out what sex was.
So far we have PGM rulings after trial in two states, Arkansas and Florida. They basically adopt the pro-trans plaintiffs’ definitions.
At least one state defending a ban – Texas – has called an expert witness (the evolutionary biologist Colin Wright) to explain what sex is. This is the correct approach to dealing with sex in a lawsuit where its meaning is contested. The Texas Supreme Court subsequently let the ban stay in place for the duration of litigation.
In Skrmetti the Supremes will consider:
“Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow ‘a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex’ or to treat ‘purported discomfort or distress from a discordance between the minor’s sex and asserted identity,’ violates the equal protection clause of the 14th Amendment.”
In other words, the Court will decide if the PGM ban constitutes sex discrimination. (There are also other, less likely ways it could analyze the problem.)
To find that the answer is no, the justices would have to distinguish Skrmetti from Bostock. The Sixth Circuit’s pro-ban opinion handles this by drawing out the differences between Title VII and the Constitution, and between fired employees and poisoned children. Of course those differences are real, but judges analogize things that are different every day.
If the Court tries to follow Bostock’s logic, it will consider whether Tennessee banned PGM with sex “distinctions” in mind. I suppose it did – the entire treatment is about changing physical traits to resemble the opposite sex.
Or the Court could consider, Bostock-style, whether the Tennessee law treats a trans-identified girl the same as someone “identified as male at birth.” The plaintiffs argue the answer is “no” because it bans mastectomy for the “transgender” kid but allows it for boys with gynecomastia. It’s a flimsy argument in the real world. But we’re not in the real world, we’re in court, with judges who like to decide major social questions using dictionaries and “few facts.”
Skrmetti is at a preliminary stage in the trial court. The parties haven’t entered evidence in the record yet. No depositions, no cross-examinations, just lawyers arguing about law and plaintiffs making big promises about how great their case will be. The Supreme Court might be hoping to address PGM as superficially as it did Bostock.
If banning PGM is sex discrimination, it could still be legal. But states would bear the burden of proving, basically, they’re justified in protecting kids from PGM.
The Supreme Court can do whatever it wants. I predict it will not declare that PGM bans are sex discrimination. It will be interesting to see how the justices (on all sides of the issue) wrestle with Bostock in Skrmetti.
And whether they use the term “gender identity.”
In Part 2: Republican politicians try to sound moderate by letting teen girls take steroids.
As a retired bank lawyer who is also gay and gender critical, I would like to thank you for this thorough analysis. I can't wait to dig into it.
You're always the best at parsing out this stuff.