The Real Reason the Supreme Court Reversed Its Position on Trans Rights

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This article was republished in partnership with Balls and Strikes.

In October 2019, the Supreme Court heard oral argument in Bostock v. Clayton County, a case about whether a federal civil rights law that prohibits employment discrimination based on “sex” extends to gay and transgender Americans too.

On paper, right-wing culture warriors had good reason to be optimistic that the court’s answer would be no. A year earlier, President Donald Trump had replaced Justice Anthony Kennedy, who occasionally sided with the liberals in cases about LGBTQ rights, with Justice Brett Kavanaugh, a staunch conservative with a track record of adopting the movement’s preferred positions when it mattered most. His confirmation gave the right what it had sought for decades: the five Supreme Court votes necessary to turn its policy agenda into binding precedent.

Eight months later, though, a six-justice majority of the court held that federal employment protections indeed protect trans people in the workplace. The basic logic of Justice Neil Gorsuch’s majority opinion in Bostock, which Chief Justice John Roberts and the four liberals joined, is that if an employer treats a transgender man differently than it would treat a man assigned male at birth, the workplace is treating that trans man differently “because of sex.”

Conservative types who had expected Kavanaugh’s confirmation to pay immediate dividends promptly lost their minds. In a dissent joined by Justice Clarence Thomas, Justice Samuel Alito called the majority’s argument “deceptive” and its conclusion “preposterous.” One conservative activist accused Gorsuch of abandoning textualism and succumbing to pressure from “college campuses and editorial boards”; another compared Bostock to Dred Scott, the 1857 Supreme Court case that denied citizenship to Black Americans and more or less started the Civil War. In a somber speech on the Senate floor, Missouri Republican Josh Hawley declared that the decision heralded “the end of the conservative legal movement.”

Bostock felt like ancient history on Tuesday morning, when the court heard 

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