Gorsuch Stays Quiet at High Court Transgender Rights Argument (1)

Justice Neil Gorsuch, who authored the US Supreme Court’s landmark decision that protected LGBTQ+ people from discrimination in the workplace, was silent during arguments Wednesday over the constitutionality of state laws that ban gender-affirming care for transgender minors.

Gorsuch didn’t ask a single question during the roughly two and half hour-long proceedings in a case that marks the first constitutional test for transgender rights taken up by the justices.

“All eyes were on Justice Gorsuch, and he stayed mum,” said Jessica Clarke, a USC Gould School of Law professor and expert on antidiscrimination law.

“It could be that he was not quite sure what he thinks of this case,” or that he already knows how he plans to rule, she said.

United States v. Skrmetti centers on a Tennessee law that bans doctors from prescribing puberty blockers and hormone treatments to minors with gender dysphoria. That’s the medical diagnosis for the psychological distress that stems from the conflict between a person’s gender identity and the sex they were identified as having at birth.

The Biden administration and the ACLU argue Tennessee’s law unconstitutionally discriminates against transgender people based on their sex, which is barred under the Fourteenth Amendment’s Equal Protection Clause. They say the reasoning the court’s majority had in protecting LGBTQ+ people in 2020 from discrimination in the workplace under Title VII of the Civil Rights Act should apply here.

For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex and that has always been prohibited by Title VII’s plain terms, Gorsuch wrote for the court’s 6-3 majority in the Bostock v. Clayton County decision.

While Gorsuch’s conservative colleagues questioned Solicitor General Elizabeth Prelogar and ACLU lawyer Chase Strangio Wednesday about the risks of allowing gender-affirming treatments for transgender minors and the impact a ruling in their favor could have on laws that ban transgender athletes from women’s sports, Gorsuch remained quiet.

Past Precedent

One difference between Bostock and Wednesday’s case is a constitutional challenge while Bostock was a statutory challenge. Gorsuch is a well-known textualist, who believes laws should be interpreted as they were written.

“When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest,” he wrote in Bostock. “Only the written word is the law, and all persons are entitled to its benefit.”

Thomas Jipping, a senior legal fellow at The Heritage Foundation noted that Bostock was limited to Title VII and doesn’t think that ruling will come up in the court’s final decision in Skrmetti.

“There’s not an obvious, natural connection,” he said. “You’d have to create one and that’s certainly not necessary for the court to decide this case.

Justice Samuel Alito, a George W. Bush appointee, noted the difference between the two cases during the argument in asking Prelogar why the court should look to Bostock in deciding this case.

“Bostock involved the interpretation of particular language in a particular statute,” he said. “And this is not a question of statutory interpretation.”

Ahead of the argument, legal scholars viewed Gorsuch as one of the justices to watch since he wrote the Bostock majority ruling prohibiting employers from firing or otherwise discriminating against someone because they are transgender.

Clarke noted that Gorsuch was also silent in 2018 when the court heard a blockbuster fight over mandatory union fees for public sector workers. Many thought the then newly confirmed Trump appointee would ultimately decide the case after a short-handed court split evenly on the issue in 2016.

“Justice Gorsuch was on the side of the conservatives in another politicized case,” said Clarke, who joined legal scholars in a brief supporting the Biden administration in Skrmetti.

In that case Janus v. American Federation of State, County and Municipal Employees, Gorsuch joined the majority in 5-4 decision that said its unconstitutional for public sector unions to force nonmembers to pay union fees.

If that’s any indication, Clarke said Gorsuch’s silence Wednesday is a bad sign for transgender rights.

“Maybe he’s already made up his mind and thought that the argument here was not going to be useful to him,” she said.