- The Washington Times - Wednesday, August 17, 2022

Differing lower court rulings on transgender issues will likely lead to consideration by the Supreme Court, which in recent years has declined to weigh in on transgender bathroom battles in schools and objections from religious hospitals over providing transgender surgeries.

Such issues, however, have continued to bubble up in lower courts.

A federal appeals court ruled Tuesday that transgender people who experience gender dysphoria are protected from discrimination under the Americans with Disabilities Act, a ruling with major implications for single-sex restrooms, sports and prisons.

The ADA specifically excludes “transvestitism,” “transsexualism” and “gender identity disorders not resulting from physical impairments,” but the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled that “gender dysphoria” isn’t the same.

A federal judge ruled this month that transgender patients in West Virginia must receive the same types of procedures offered to others under Medicaid. Vaginoplasty is an example of covered care.

Last month, a federal judge ruled against the Biden administration’s order that schools and employers receiving federal funding must allow transgender students and employees to use bathroom facilities of their preference and participate in sports that correspond with identity rather than biology.

“Once there is growing litigation over a type of claim, eventually the Supreme Court will take it up and clarify things,” said Ilya Shapiro, a senior fellow at the Manhattan Institute.

The number of lawsuits grew after conservative states issued bans against certain health care procedures and treatment for transgender youths. Some legislation also prohibits transgender people from women’s sports, locker rooms and bathrooms.

The increase in transgender litigation appears to be partly a result of the high court’s 2020 landmark decision in Bostock v. Clayton County. The justices ruled 6-3 that Title VII of the Civil Rights Act extends to protection for LGBTQ employees.

“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. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids,” Justice Neil M. Gorsuch wrote for the majority. “Title VII’s effects have unfolded with far-reaching consequences, some likely beyond what many in Congress or elsewhere expected.”

Justice Samuel A. Alito Jr. disagreed with the majority. He argued in a dissent that the Bostock ruling would open the door to unresolved transgender disputes.

“Under the Court’s decision … transgender persons will be able to argue that they are entitled to use a bathroom or locker room that is reserved for persons of the sex with which they identify,” Justice Alito wrote. He referred to women’s sports as another area of concern.

“There is only one word for what the Court has done today: legislation. The document that the Court releases is in the form of a judicial opinion interpreting a statute, but that is deceptive,” he said.

Justice Alito’s prediction was right. The Biden administration has pointed to the Bostock ruling in its promotion of pro-LGBTQ policies.

In an executive order after taking office in 2021, President Biden directed agency leaders to review orders and rules to prohibit any discrimination based on sex, including sexual orientation and gender identity, under the Civil Rights Act of 1964.

“All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation,” the president’s order said. “In Bostock v. Clayton County … the Supreme Court held that Title VII’s prohibition on discrimination ‘because of … sex’ covers discrimination on the basis of gender identity and sexual orientation.”

As part of the directive, the Department of Health and Human Services said health care entities that receive federal funding can’t discriminate, or withhold care, based on sexual orientation or gender identity. That also applies to health insurance plans offered through Obamacare, Medicare and Medicaid.

Despite the directive to various agencies citing the Bostock holding, Mr. Shapiro said he thinks Justice Gorsuch’s opinion was narrow enough to apply only to the workplace. Still, he said, society has reached a “flashpoint” on transgender issues that has caused an increase in litigation.

He said the justices likely will have to revisit the issue.

“Some sort of trans rights case will undoubtedly come to the court,” Mr. Shapiro said.

Mike Davis, president of the Article III Project and a former clerk for Justice Gorsuch, aligned with Justice Alito’s take that the Bostock ruling went too far.

“Bostock was clearly wrongly decided, and the fallout proves that judges should not legislate from the bench,” he said.

“We have not experienced an explosion in gender dysphoria in youth in the last year. This is largely a political division that the Democrats are exploiting to divide America in pursuit of power,” Mr. Davis said. “This is why these matters should be resolved by our elected representatives in Congress and not by unelected judges.”

Paul Gordon, senior legislative counsel from People For the American Way, said judges greatly impact the lives of LGBTQ people.

“Transgender protections are increasing because of greater societal awareness of transgender people, who deserve recognition, respect and equality,” Mr. Gordon said. “The decisions that judges make in these cases will have an enormous impact on the lives of all LGBTQ+ people in America. It’s enormously important that we have fair judges who will protect the rights of all people, not just the powerful.”

Valerie Richardson contributed to this report.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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