In 2020, the Supreme Court decided in Bostock v. Clayton County that Title VII of the Civil Rights Act, a federal law that prohibits employers from discriminating “on the basis of sex,” prohibits discrimination based on gender identity and sexual orientation, too. The Court reasoned that Title VII essentially prohibits discriminating against any person for failing to adhere to traditional gender norms at work. If your boss wouldn’t fire a woman for bringing her boyfriend to a Christmas party, it would be discrimination “on the basis of sex” if they fired her for bringing her girlfriend.
This decision shocked a lot of people, especially on the right. Writing for The Blaze, Daniel Horowitz called Justices Gorsuch and Roberts “fake conservatives” and declared that the “the court believes there is an inalienable right to transgenderism.” If only.
Republicans weren’t supposed to lose cases about core conservative principles, like protecting bosses’ power and protecting the right to discriminate against disfavored groups. They had handpicked five Supreme Court justices, four of them appointed by presidents who first took office despite losing the popular vote, to win cases just like this. But they lost anyway. Justice Neil Gorsuch, writing for six justices and gratuitously citing any Justice Antonin Scalia opinion that his clerks could find, had totally dropped the ball. In The New York Post, legal columnist Josh Hammer declared that the conservative legal movement had “failed conservatism”; Missouri Senator Josh Hawley pronounced the right-wing legal movement “over.” Again, if only.
Meanwhile, civil rights groups celebrated. I did too! I didn’t want to get fired for being bisexual any more than the next guy. And even though Justice Ruth Bader Ginsburg died later that year and was replaced by walking Notre Dame Law Review article Justice Amy Coney Barrett, Bostock seems pretty safe. Gorsuch wrote the opinion, and Chief Justice John Roberts joined it, and both of them are still on the bench. Although no precedent is really safe at the Court these days, judges don’t usually overrule their own opinions.
But even after a landmark decision like Bostock, it’s not enough for the Court to announce what a law means: Federal agencies have to enforce it, and lower courts have to follow it. And in two recent cases out of Texas and Tennessee, two of Donald Trump’s appointees have shown just how far Republican judges are willing to go to undermine any decision that threatens undemocratic right-wing dominance. In these cases, Texas v. Equal Employment Opportunity Commission and Tennessee v. Department of Education, Trump judges bent over backwards to ignore the upshot of Bostock, for no clear purpose beyond declaring that they would be ignoring the Court’s decision in any case that came before them.
Both cases were about whether “guidance” issued by federal agencies in the wake of Bostock was lawful. “Guidance” isn’t a rule or law—it’s just an explanation of how an agency interprets and may enforce a law. In this case, the “guidance” means even less than that; the Equal Employment Opportunity Commission (EEOC), which enforces Title VII, had announced way back in 2012 that it interpreted Title VII’s text to prohibit discrimination based on gender identity and sexual orientation. After Bostock, the EEOC just updated its guidance to add that the Supreme Court also happened to interpret Title VII the same way.
Several other federal agencies, many of which must enforce their own antidiscrimination laws that prohibit discrimination “on the basis of sex,” issued revised guidance along the same lines as the EEOC’s. The Department of Education’s guidance touched on some real hair-trigger issues for conservatives, like whether trans students are allowed to go to the bathroom or gym class. Gorsuch had tried to avoid this minefield by declaring that Bostock was merely about the meaning of Title VII, and did not decide anything about “bathrooms, locker rooms, and dress codes.” But the Department of Education’s guidance made plain what Bostock had tried to avoid: The Civil Rights Act protects trans students at school, just as it protects trans employees in the workplace.
The agencies’ guidance seems reasonable enough, unless you’re every elected Republican state attorney general in America, who sued in federal court over the EEOC posting what amounts to a fancy blog. In July, Judge Charles Atchley granted Tennessee a preliminary injunction, blocking the EEOC and Department of Education from “implementing” their guidance. And earlier this month, Judge Matt Kacsmaryk granted Texas summary judgment on its claims, declaring the guidance “unlawful” and “set aside.”
To get there, the Trump judges had to ignore every common-sense issue that should have kept them from ever considering the cases. First, they had to get around the fact that the EEOC hadn’t done anything. Both judges recited the EEOC guidance—which pretty much just recited what the Court had held in Bostock—as if the guidance was imposing onerous new requirements on every state in the union. But the guidance was based on Bostock and Title VII of the Civil Rights Act; declaring it “unlawful” doesn’t change how the agencies interpret the law. It would be like a judge ordering your kindergarten teacher to take down the “Class Rules” sign in the corner because there’s a perfectly good copy of the school district’s code of conduct in the library. If you’re six, you’re not going to go find that shit, but the code of conduct definitely still applies to you.
Second, the judges had to ignore that the agencies’ guidance was completely in line with what the Court decided in Bostock. The Trump judge in Tennessee was smarter. Gorsuch had written in an escape hatch for him, and he took it: Because the Bostock Court claimed the case didn’t extend to “bathrooms, locker rooms, and dress codes,” the agencies’ guidance didn’t apply.
Kacsmaryk—who sits on a court with only two Republican judges, where Texas Attorney General Ken Paxton files all his high-profile lawsuits against the Biden administration—adopted a slightly different justification for ignoring Bostock. In Bostock, the Supreme Court clarified that employers couldn’t discriminate against someone simply for being gay or transgender. But the Court never said that employers couldn’t discriminate against someone for gay or transgender conduct. Essentially, according to Kacsmaryk, trans people are protected at work if they merely exist in the workplace. But as soon as someone updates their pronouns in their email signature, or dresses in a way that doesn’t conform with their assigned gender at birth, or somehow acts trans, their boss is free to can their ass.
This is very stupid. It’s very stupid for two main reasons. First and foremost, the Court actually did say that you can’t discriminate against someone for acting gay, not just being gay. It’s in the very first paragraph of the Bostock decision: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Traits or actions! Right out of the gate, this judge is lying about what the Court said. This fits the new trend among Republican judges—including Gorsuch—who are willing to ignore the facts of a case to get to the result they want.
Second, it’s thunderingly obvious that no employer would find out about an employee being gay or trans unless they found out about an employee doing something that gay or trans people generally do, like bringing their same-sex partners to work functions, or coming out as trans to their workplace as part of socially transitioning. The very idea that an employer could possibly discriminate against someone simply for being something instead of doing things that flow from that status or identity is absurd. Imagine an employer who fires an observant Jewish employee and claims that they did not fire the employee for being Jewish, but rather for going to temple every Saturday. Anyone would recognize this reasoning as a flimsy pretext. But not to Kacsmaryk, who repeatedly, proudly circles back to this genius insight about the nature of discrimination.
Now, this reasoning obviously doesn’t hold up under scrutiny. But for these judges, that doesn’t matter. Their opinions matter because they wear robes and sit on a bench. For years, judges tried to shepherd that legitimacy by going to great lengths to try to explain how their decisions are grounded in prior decisions, or in statutes, or in common sense. But that era is over. Now that Republicans have a hammerlock on the federal judiciary, they don’t need careful reasoning or precedential support. They need power, and they have it, so they’ll use it, even when agencies haven’t started doing anything yet.
Ironically, when judges try to exercise raw power like this, it undermines their case for being taken seriously. Public trust in the Supreme Court is at an all-time low because of the Court’s obviously politically motivated decisions. When judges make decisions this utterly stupid, this tendentious, people might start to care less about what they’re saying.
But that’s for the cases that might actually matter. Here, these judges’ screeds were impotent, because they had only one actual consequence: The EEOC posted a little notice that two Trump judges disagree, like your phone telling you that you need to update to the latest OS. Maybe next time the EEOC is confronted with 40 pages of right-wing virtue signaling from a fortysomething federal judge hatched in Federalist Society spawning chambers, the agency will simply ignore it. We can only hope.