Social conservatives fear that the Supreme Court’s Monday decision to protect gay and transgender people from employment discrimination will have consequences that reach beyond employment laws, threatening women’s sports and the freedom of speech.
The decision, delivered on Monday in Bostock v. Clayton County, reinterprets Title VII of the 1964 Civil Rights Act to prohibit discrimination against gay and transgender people on the basis of sexual orientation or gender identity. Religious liberty advocates and constitutional scholars drew from Justice Samuel Alito’s dissent, joined by Justice Clarence Thomas, to oppose that reading.
“The legislation handed down by the Court will have far-reaching consequences, including the eventual destruction of all-women’s sports,” wrote Princeton professor Robert George in a blog post. “As I tell my students, and constantly remind myself, ‘remember, when you sign on to a proposition you are signing on to all it logically presupposes and entails.’”
In Alito’s dissent, the justice claimed that by signing onto protections in employment, the court implicitly signed onto raising transgender questions in a wide-ranging set of areas: locker rooms, women’s sports, housing, religious employment, healthcare, and, more broadly, anywhere that concerns the freedom of speech.
“Today’s decision may have effects that extend well beyond the domain of federal antidiscrimination statutes,” Alito wrote. “This potential is illustrated by pending and recent lower court cases in which transgender individuals have challenged a variety of federal, state, and local laws and policies on constitutional grounds.”
President of the Ethics and Public Policy Center Ed Whelan, who played an instrumental role in the confirmation of Justice Brett Kavanaugh, predicted that it would take decades to settle the legal questions that the decision raised.
Whelan also said that, in his view, the decision dooms women’s sports to irrelevancy because men will be able to out-compete women as long as they identify as female.
“Under Bostock ruling, it would be discrimination on the basis of sex to bar a male who IDs as female from women’s/girls’ sports,” he tweeted. “To allow that male to take part but to bar a male who IDs as male would also be discrimination on the basis of sex. So end to female-only sports.”
Whelan’s theory echoed Alito’s dissent, which argued that biological women competing in sports will be hit hard by an unfair advantage given to transgender women.
“The effect of the Court’s reasoning may be to force young women to compete against students who have a very significant biological advantage, including students who have the size and strength of a male but identify as female and students who are taking male hormones in order to transition from female to male,” Alito wrote. “Students in these latter categories have found success in athletic competitions reserved for females.”
In his warning about women’s sports, Alito cited a brief from Jennifer Braceras, director of the Independent Women’s Law Center, who argued that Title VII revisions would deal a blow to women’s ability to compete fairly in sports.
“A ruling in favor of Respondents will reduce the number of athletic opportunities for biological women and girls,” Braceras wrote last year. “In the long run, it will undermine the legal justification for maintaining any sex-specific athletic teams and may result in the elimination of women’s sports altogether.”
Following the decision, Braceras said that her main concern was not the substance of the revisions but “the far-reaching and unintended negative consequences of reaching this result by judicial fiat” on, most prominently, women’s sports.
Heritage Foundation fellow Ryan Anderson characterized the decision as “judicial activism,” saying that it would lead to a broad reevaluation of civil rights that would ultimately harm women.
“The Court has rewritten our civil rights laws in a way that will undermine protections and equal rights of women and girls,” he said in a statement. “It will also expose employers that are struggling to recover from the coronavirus pandemic to significant liabilities.”
In his majority opinion, Justice Neil Gorsuch addressed these concerns, saying that he expects future court cases to solve the questions raised by Bostock.
