- The Washington Times - Wednesday, August 12, 2020

The Supreme Court ruling this year that extended federal protections against employment discrimination to gay workers is being used by judges to ensure transgender students can use their preferred bathroom at school.

As a result, the revived push for transgender bathroom rights is poised to go to the high court, as district judges likely follow the federal appeals court’s lead in striking down school-bathroom policies.

What’s more, the Supreme Court’s pro-LGBTQ ruling also could impact whether transgender athletes participate in sports, housing issues on college campuses, insurance coverage for sex-reassignment surgeries, and religious employers’ ability to act according to their faith on whether to hire transgender workers.

“There are just so many implications for this,” said Curt Levey, president of the conservative legal group Committee for Justice.

The Supreme Court ruled in June that lesbian, gay, bisexual and transgender people qualify for protection from workplace discrimination under Title VII of the Civil Rights Act of 1964.

The first major lower-court ruling linked to the new LGBTQ rights was handed down this month. In a 2-1 ruling, the 11th U.S. Circuit Court of Appeals said a Florida high school policy that required a transgender boy to use gender-neutral bathrooms rather than the boys’ room was unlawful discrimination under the Constitution.

Drew Adams attended high school and although he transitioned, including changing his birth certificate and undergoing a bilateral mastectomy to remove breast tissue before the age of 18, the school refused to let him use the boys’ bathroom.

He filed a lawsuit, claiming discrimination in violation of the Constitution for treating him differently than other boys. The district court and appeals court sided with him.

“I am very happy to see justice prevail, after spending almost my entire high school career fighting for equal treatment,” said Mr. Adams, now a 19-year-old former student of Allen D. Nease High School in Ponte Vedra, Florida.

“High school is hard enough without having your school separate you from your peers and mark you as inferior,” he said. “I hope this decision helps save other transgender students from having to go through that painful and humiliating experience.”

The federal appeals judge who authored the court’s opinion cited the Supreme Court’s ruling in Bostock v. Clayton County, which held part of the Civil Rights Act of 1964 protects LGBTQ employees from discrimination in the workplace, suggesting the court must apply the same reasoning about bathroom policies.

“Bostock announced that Title VII’s prohibition on sex discrimination also forbids discrimination based on transgender status,” Judge Beverly B. Martin, an Obama appointee, wrote for the 11th Circuit. “The Court instructed that ‘it is impossible to discriminate against a person for being transgender without discriminating against that individual based on sex.’”

Tara Borelli, counsel at Lambda Legal, a pro-LGBTQ legal group, said the 11th Circuit case is similar to another one pending in the 4th Circuit, where another transgender boy challenged a Virginia high school’s bathroom policy.

“Bostock is likely to affect federal statutes that prohibit discrimination based on sex, including in education, health care, and housing,” Ms. Borelli said. “There is a similar case pending in the Fourth Circuit, and that court could rule any day. It’s hard to read the tea leaves about what might get reviewed by the Supreme Court, and when.”

But Josh Blackman, a professor at South Texas College of Law, said the high court’s ruling in Bostock didn’t specifically address the issue of bathroom policies.

He points to Justice Neil M. Gorsuch’s opinion in the case, where the Trump-appointee wrote, “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”

“The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex,’” the justice wrote in the high court’s majority 6-3 decision.

Mr. Blackman said the case is likely to be appealed to the full 11th Circuit Court, but there will eventually be a case — if not this one — to be taken up to the Supreme Court so the justices can clarify the conflict between its ruling in Bostock and the use of bathroom and locker room by transgender people.

“I think we will see this over and over again,” he said of the bathroom issue.

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