In June, the Supreme Court redefined “sex” in Title VII of the 1964 Civil Rights Act to include “gender identity” and “sexual orientation.” In its 6-3 decision, Bostock v. Clayton County, the justices went far beyond the plain meaning of sex – the biological state of being male or female – to include broad social constructs nobody in 1964 would have thought of including in the definition of sex.
That decision is unleashing a whirlwind of court cases that threaten the sanctity of life and religious freedom. The latest case to cite Bostock was filed in federal court on June 20. Twenty-two states and the District of Columbia filed a complaint, challenging the definition of sex in health care regulations.
The U.S. Department of Health and Human Services (HHS) had released a rule on June 12, stating that “sex” in non-discrimination portions of the Affordable Care Act means being male or female – “as determined by biology.”
That new rule overturned the previous definition, created in 2016 under the Obama administration, which included “termination of pregnancy” and “gender identity” in the meaning of the word “sex.” “Gender identity” was defined as “one’s internal sense of gender, which may be male, female, neither, or a combination of male and female.”
Led by New York Attorney General Letitia James and California Attorney General Xavier Becerra, the complaint cites the Bostock decision more than a dozen times. For example, it says that defining sex in biological terms is “arbitrary and capricious because it disregards Bostock and the weight of applicable federal case law holding that prohibited discrimination on the basis of sex includes discrimination based on sex stereotypes, gender identity, sexual orientation, and pregnancy-related conditions.”
The lawsuit says the HHS rule is “only based on an alleged ‘biological binary of male and female’” and is “an effort to deny the existence of transgender people.” It argues, “Transgender people have a gender identity that is different than the sex they were assigned at birth.”
Redefining sex discrimination in health care regulations to include “pregnancy-related conditions” means that it would be discriminatory for a doctor to refuse to perform an abortion. Likewise, hospitals that refuse to allow abortions would be discriminating on the basis of “sex.”
Changing the meaning of sex in health care to include “gender identity” means that doctors could be forced to prescribe puberty blockers, opposite-sex hormones and surgeries – or be sued for “sex discrimination.” Freedom of conscience for health care facilities would be gone.
Justice Neil Gorsuch, who authored Bostock, wrote that the employers who opposed the redefinition “worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination.” He explained that those employers believed that redefining sex in federal employment law would expand to affect other areas of life – such as religious freedom and privacy and safety in sex-segregated bathrooms and locker rooms.
Gorsuch breezily pooh-poohed that notion, saying the Court was “deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution.” He also said, “None of those other laws are before us” and that the ruling did “not purport to address bathrooms, locker rooms, or anything else of the kind.”
Justice Samuel Alito strongly disagreed. In a dissenting opinion, he wrote, “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, “What the Court has done today – interpreting discrimination because of ‘sex’ to encompass discrimination because of sexual orientation or gender identity – is virtually certain to have far-reaching consequences.” Alito added that more than “100 federal statutes prohibit discrimination because of sex.” This decision could affect all those statutes.
Alito listed some of the areas that would be affected by the Court’s reasoning in Bostock, including bathrooms and locker rooms; women’s sports; housing, such as college dormitories; employment by religious organizations; healthcare; freedom of speech; and Constitutional claims – affecting areas such as the military, legal identification documents, school facilities and prisons.
This lawsuit is not the only one challenging HHS’ biological definition of sex. A week after Bostock, LGBT activist group Lambda Legal filed a lawsuit challenging the HHS rule. Eleven days after Bostock, The Human Rights Campaign, the nation’s largest LGBT activist group, also filed a complaint against the HHS rule.
It’s not just this HHS rule being fought. Two days after Bostock, Lambda Legal filed a supplemental brief in a Florida case where a girl who identifies as male is suing to use the boy’s restroom at her high school – citing the Court’s redefinition of sex. A month after Bostock, the ACLU sued a Catholic hospital for canceling a hysterectomy surgery that violated Catholic health care values. The suit argues that a “man who is transgender” (that is, a woman who thinks she’s a man) is being discriminated against on the basis of sex.
Turns out Alito was right about those “far-reaching consequences,” as activists are looking at how the redefinition of sex in Title VII can be applied to other areas of life. These aren’t the last Bostock lawsuits we’ll be seeing.
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