The conservatives Wednesday were quick to argue that the trans health care case before them was completely unrelated to a landmark 2020 case where the majority ruled that employers cannot discriminate against employees on the basis of sexuality or gender identity.
The likeliest hope for the trans rights side was to recreate the majority from 2020’s Bostock v. Clayton County, where Chief Justice John Robert and Justice Neil Gorsuch, in a surprise, sided with the liberals to find that the discrimination was illegal under Title VII of the Civil Rights Act. The worry was that the two justices’ positions there would not be extended to the Equal Protection Clause, under which Wednesday’s trans rights case was being argued.
Roberts made fairly clear during oral arguments Wednesday that he’s inclined to return back to the conservative side of the aisle, continuously pushing for the bans to be litigated at the state level absent any constitutional protections. It’s a similar reasoning to the one the right-wing majority used to overturn the constitutional right to abortion.
But Gorsuch, who wrote for the majority in Bostock, was completely silent during oral arguments. He was the only justice who didn’t speak at all.
He held his tongue even when Justice Sonia Sotomayor poked at him individually, mentioning that the “colleague to her right” led the charge in making sure that COVID restrictions didn’t infringe on religious freedom — a subtle jab at the conservatives’ feigning concern about interfering with states’ public health decisions in the trans heath care bans.
Gorsuch’s right-wing colleagues, though, were eager to assert that the trans case, Skrmetti v. U.S., is nothing like Bostock.
“Why should we look to Bostock here?” Justice Samuel Alito asked. “Bostock involved the interpretation of particular language in a particular statute — this is not a question of statutory interpretation, it’s a question of the application of the Equal Protection Clause of the 14th Amendment.”
Justice Amy Coney Barrett added that “trying to make a Bostock-like argument” “feels like an odd way to solve the problem.”
Sotomayor jumped in to rebut her colleagues in the form of a question for U.S. Solicitor General Elizabeth Prelogar.
“Your point, I think, is very clear that Bostock is pertinent only to the extent that whether it’s Title VII or the Equal Protection Clause, the first question is: Is the legislature using sex as a classification, correct?”
It’s the central question on which the case turns, and one on which the bench’s right wing was virtually silent on Wednesday.
