The Supreme Court Is Abandoning Trans People to Donald Trump

Earlier this month, Mother Jones reported that the Equal Employment Opportunity Commission, the federal agency that investigates allegations of illegal workplace discrimination, had suddenly stopped investigating employers accused of discriminating against transgender and nonbinary employees. Days later, the agency began filing voluntary motions to dismiss these cases in light of “recent Administration policy changes,” referencing President Donald Trump’s executive order that rolls back legal protections for transgender Americans to the greatest extent his power allows. In light of this directive, the government explained, continuing to defend the civil rights of transgender people “may be inconsistent” with its marching orders going forward.

The cases the EEOC seeks to dismiss include a transgender hotel employee’s claims that their manager called them a “Transformer,” and referred to them in front of colleagues as “it,” and asserted that “being transgender is why people commit suicide.” They include several trans restaurant workers’ allegations that their coworkers asked about their genitalia, and about how they have sex with their partners, and told them they were “fucking gross.” They include an employee whose supervisor, upon learning that he is gay and nonbinary, fired him by text message seven hours later. 

All of this depravity is flatly illegal under Bostock v. Clayton County, a 2020 Supreme Court decision in which the justices held that Title VII of the Civil Rights Act, which bars employment discrimination based on sex, protects against discrimination based on sexual orientation and gender identity, too. By seeking to drop these cases—and to do so “with prejudice,” which would prevent victims from filing their complaints again in the future—the Trump administration is more or less acting as if Bostock never happened. Yes, agencies like the EEOC have some discretion about which cases to prosecute. But the EEOC is not dismissing these cases because it determined that the alleged discrimination did not happen. It is dismissing these cases because the administration decided, as a policy matter, that whatever the Supreme Court says, discriminating against trans people should not be illegal in the first place. 

In a functioning democracy, a co-equal branch of government’s decision to publicly tell another co-equal branch of government to go fuck itself would entail some sort of consequences for the branch doing the telling—or, at the very least, would draw a meaningful objection from the branch getting told. In his year-end report on the federal judiciary, Chief Justice John Roberts warned of the dangers that follow when elected officials find the whole separation-of-powers thing too vexatious to bother honoring: “Judicial independence is undermined unless the other branches are firm in their responsibility to enforce the court’s decrees,” he wrote.

So far, however, the Court has had nothing to say about the Trump administration’s announced intention to set aside a clear, unambiguous ruling issued less than five years ago. When describing their role in American democracy, the justices are often fond of quoting Chief Justice John Marshall, who in an 1803 opinion explained that the Court enjoys the exclusive right in the constitutional order “to say what the law is.” The institutional silence here reveals how hollow this grandiose proclamation really is: Apparently, the justices are fine with Trump treating them as feckless providers of non-binding suggestions instead.

The crux of Justice Neil Gorsuch’s opinion in Bostock, which was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, is that an employer who discriminates against a person for being gay or trans discriminates based on “traits or actions it would not have questioned in members of a different sex.” For example, if an employer fires male employees with husbands or boyfriends, but happily employs female employees with husbands or boyfriends, that employer has necessarily discriminated against gay men “because of sex.” 

In a 107-page dissent that qualifies as unhinged even by his standards, Justice Samuel Alito excoriated the decision as a “brazen abuse” of the Court’s authority, arguing that the enacting Congress never would have imagined that Title VII would outlaw two of his favorite forms of bigotry. Gorsuch, though, framed the result as a simple matter of giving effect to the statute’s text. “The limits of the drafters’ imagination supply no reason to ignore the law’s demands,” he wrote. “Only the written word is the law, and all persons are entitled to its benefit.” 

As Supreme Court opinions often do, the result in Bostock largely tracks trends in public opinion, and polling shows that north of 80 percent of Americans approve of extending legal protections to gay and transgender workers. Justices Amy Coney Barrett and Ketanji Brown Jackson have since replaced Ginsburg and Breyer, respectively, and as a whole, the Court has become more conservative. But because the Bostock majority included Roberts, Gorsuch, and the three liberals, the math isn’t complicated: Absent a flip-flop of stupendous proportions, if the case were to return to the Court today, there are still likely five votes to affirm it. 

Before Bostock, whether gay and trans victims of workplace discrimination had any remedy depended on where they happened to live; if their state legislature had not seen fit to protect their rights under state law, they were shit out of luck. Bostock helped to close this loophole, but upon taking office in January, Trump set about the task of reopening it, quickly dismissing two of the EEOC’s Democratic commissioners in the middle of their five-year terms. One, Jocelyn Samuels, told the Associated Press that her termination letter referenced her “refusal to defend women against extreme gender ideology,” and said she believes she was fired to effectuate the Trump administration’s efforts to “erase the existence of trans people.”

The following day, the agency’s acting chair, Andrea Lewis, announced that the EEOC would indeed play a key role in “rolling back the Biden administration’s gender identity agenda.” Her statement acknowledged the obligation to comply with Bostock, but argued that “it is neither harassment nor discrimination for a business to draw distinctions between the sexes” by providing employees with single-sex bathrooms. If you read that and think, Wait, how would this lady’s objections to bathroom access guidance possibly justify dismissing cases about incidents of clearly-illegal discrimination that have nothing to do with bathroom access, you are asking the right question, but you will not find the answer anywhere in her press release.

The Trump administration’s abandonment of trans people doesn’t leave workers entirely without recourse: The EEOC disposes of the vast majority of Title VII complaints—about 75 percent—by allowing people to sue their employers in federal court, where plaintiffs and their lawyers, not EEOC personnel, get to make their cases to a jury. But at the very least, for the next four years, victims of transphobic discrimination will have an even harder path forward than they already would have had as victims of transphobic discrimination: trying to seek redress for some of the most painful moments of their lives, knowing that the president has vowed to ignore them at best or actively fight them at worst.

Elected officials are always going to test the outer boundaries of the law, particularly when the law, as here, is an obstacle that stands squarely in the way of implementing their preferred policy agenda. And in practice, the Court rarely engages with what its members would characterize as the day-to-day of politics—fights they view as the grimy business of elected officials, not noble, enlightened justices who operate above the partisan fray. Other than the occasional milquetoast paean to collegiality before an auditorium of enthusiastic law students, or a theatrical head shake in response to a president’s correct characterization of one of the Court’s worst-ever opinions, the norm is for the justices to limit their public commentary to writing bone-dry opinions about the legal questions before them.

But the Court’s disinterest in defending Bostock—and the fact that no one in the legal profession expects it to do so—exposes the fragility of the story the justices tell when they rhapsodize about their sacred role in the constitutional order. The legal system’s promises of equal justice under law are only meaningful for so long as the people in power are willing to play their role in keeping them. If the entirety of the Supreme Court’s response to a president’s remorseless defiance of its unequivocal holding is to sit there politely and take it, I am not sure what they accomplished by endeavoring to “say what the law is” in the first place.

It is not challenging to imagine a different system that adheres to more familiar, more conventional political norms—one in which the four current justices who were in the Bostock majority might feel some type of way about such a flagrant arrogation of their power, if not because of their shared passion for defending the civil rights of trans Americans, then at least as a matter of professional pride. The Court may not have an army to enforce its decisions, but all the justices have access to Microsoft Word and the phone number of every legal reporter in Washington.

Instead, the likeliest result here is that if we ever hear anyone on the Court weigh in on the administration’s treatment of Bostock, it will only be after years of litigation, when some case  finally arrives before the justices and blesses them with the opportunity to affirm in the pages of the United States Reporter that, yes, we really meant what we said in Bostock after all. This outcome would vindicate The Rule of Law, as the term is understood by the judges charged with upholding it and by the law professors who want to be judges someday. It will be of little use to the transgender workers whose cases the Trump administration gleefully turns away or simply allows to languish for however long that process takes.

By rejecting Bostock as illegitimate and optional, the White House is exposing more than a million people to the threat of unchecked harassment that is as vile as it is unlawful. By shrugging its shoulders and moving on to the next case on the docket, the Supreme Court is quietly encouraging it.