Transgender rights advocates’ hope in Gorsuch fades after athlete ban ruling

Any hope among transgender rights advocates that Justice Neil Gorsuch could enable them to eke out wins before the conservative-majority Supreme Court has faded.

That optimism sparked in 2020, with Gorsuch’s decision that employers can’t fire people because they are gay or transgender.

But over the past year, in major cases implicating LGBTQ issues, the appointee of President Trump has sided with the other conservative justices, repeatedly forming a 6-3 split along ideological lines.

In upholding transgender athlete bans this week, Gorsuch said any assumption he would rule otherwise is a “mistake.” He penned a solo opinion making clear that his old ruling was a narrow circumstance, and it supported upholding transgender athlete bans.

“All of that is consistent with the course the Court takes today,” Gorsuch wrote.

The transgender athletes in schools ruling came on the heels of decisions upholding youth gender-affirming care bans, allowing parents to opt out their kids from lessons with LGBTQ-themed books and an emergency ruling allowing Trump to enforce his transgender military policy. The cases each involve distinct legal issues, but the streak has left transgender rights advocates disappointed but largely unsurprised by the Supreme Court’s latest decision.

Joshua Block, who argued the transgender athlete case before the justices as senior counsel at the American Civil Liberties Union’s (ACLU) LGBTQ & HIV Projects, said the procedural posture suggested where the justices were headed from the moment they took up the battle one year ago. He was focused on minimizing the impact.

“There’s no question that the court is not on a good trajectory,” Block said. “And so, I think a lot of the issue in these cases is how far, how big is each step the court makes.”

All nine justices rejected a challenge under Title IX, the federal law that prohibits sex discrimination in schools. When it came to the Constitution, Tuesday’s decision upholding Idaho’s and West Virginia’s laws landed 6-3. Gorsuch joined the five other conservative justices that transgender athlete bans in schools didn’t run afoul of the 14th Amendment’s equal protection guarantee.

“I had hope in him,” said Anthony Sbardellati, a partner at Grove Law who filed a friend-of-the-court brief in the case on behalf of the Transgender Law Center and other groups.

Sbardellati said he didn’t understand how Gorsuch could square his reasoning from his 2020 decision, Bostock v. Clayton County.

“In Bostock, he seemed to agree that discrimination on the basis of transgender status was a violation of the law, and in these most recent cases, he seems to have discarded that under the guise of there’s a different legal rubric at play here,” Sbardellati said.

In that earlier case, Gorsuch delighted LGBTQ advocacy and legal organizations when he spearheaded the court’s ruling that employers can’t fire people because of their sexual orientation or gender identity.

Joined by the court’s liberals and Chief Justice John Roberts, Gorsuch pointed to Title VII of the Civil Rights Act.

“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee,” Gorsuch wrote. “We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

It landed at a moment when Trump’s appointees to the Supreme Court during his first term were lurching it to the right. That 2020 decision was one of the final majority opinions joined by Justice Ruth Bader Ginsburg, who died months later and was replaced by a third Trump appointee, Justice Amy Coney Barrett.

For years, some groups advocating for increased transgender protections latched on to Gorsuch’s opinion. He emerged as an unknown quantity after remaining silent during blockbuster oral arguments in 2024 on whether states could constitutionally restrict gender-affirming care for minors. He ultimately answered yes.

The ACLU took criticism from some inside the transgender advocacy community for bringing that case to the justices. When Republican-led states later convinced the justices to review their transgender athlete bans, Block said he knew the new fight would be an uphill battle.

“We were very focused on wanting to ensure that a decision, if it turned out to be bad, would be confined as much as possible to the specific context of sports and wouldn’t sweep more broadly,” Block said.

On that goal, the ACLU attorney sees success. The 29-page majority opinion didn’t deliver a maximalist version.

“There’s a big concern the court was going to say Bostock doesn’t apply to Title IX at all, which would mean that schools could expel someone for being trans or bullying against trans people wouldn’t be actionable,” Block said.

Block said Gorsuch’s separate, solo opinion made that clear, calling aspects of it “encouraging.”

“I appreciate that questions surrounding the participation of transgender athletes in women’s and girls’ sports are subjects of intense debate nationwide. The questions surrounding Bostock were too,” the justice wrote. “But as there, our charge here is not to resolve those debates, only to apply faithfully directives found in a federal statute.”

Now, eyes are turning to fights over bathroom and locker room access.

West Virginia Attorney General JB McCuskey (R) and Idaho Attorney General Raúl Labrador (R), whose offices won the school sports case at the high court, told reporters they believe the decision will instruct those lines of cases.

“It’s going to be impossible for this language not to be used by judges trying to determine whether or not women should have biological sex-specific spaces to change and to sleep and to get undressed,” McCuskey said.

Labrador similarly said, “I think there’s a lot of language in this decision that can be applied to locker rooms and bathrooms. We have some litigation right now.”

Transgender rights advocates disagree, but the high court, for now, hasn’t taken up those specific cases.

Next term, the court has already added two cases to its docket implicating LGBTQ issues.

The first presents an opportunity for the court to narrow a key religious precedent as the justices review Colorado’s “equal opportunity” mandate that requires preschools to provide LGBTQ families an opportunity to enroll to receive state funding. The second concerns whether parents have the right to sue over Washington state laws that instruct shelters to not inform parents of a child’s arrival when they seek “gender-affirming treatment.”

Last year, the justices refused South Carolina’s emergency request to enforce its bathroom ban against a transgender student. The majority stressed it wasn’t ruling on the merits of the legal issues yet; Gorsuch was one of three who dissented without explanation.

And a majority of the court has yet to endorse the opinion of three conservative justices who’ve gone further on transgender issues.

Justices Clarence Thomas, Samuel Alito and Barrett have specifically ruled out that transgender people constitute a “suspect class” that is entitled to heightened constitutional protections, like race and sex.

When Thomas again rebuked the idea this week, he went on to say that “men and boys with gender dysphoria are not women or girls” and to use language otherwise was a “lie.”

“When you have a court of nine justices, at least one of whom is exhibiting an animus towards the group, you are proceeding with one hand tied behind your back,” Sbardellati said.

“If you’re expecting this group of jurists to seriously adjudicate whether your rights have been violated, when one of the nine seems to dislike you from the get-go, you’re facing a real uphill battle.”