The Volokh Conspiracy

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Conservatives Should Not Be Surprised By Justice Gorsuch's Opinion in Bostock

Revisting Kastl v. Maricopa County Community College District.


By virtually any measure, today's Supreme Court is the most conservative bench in modern history. Replacing Justice Antonin Scalia with Justice Neil Gorsuch, rather than Merrick Garland, or someone to his left, preserved the balance of the Court. Getting Justice Anthony Kennedy to retire, and replacing him with Justice Brett Kavanaugh, in many regards, moved the Court to the right. And replacing Justice Ruth Bader Ginsburg with Justice Amy Coney Barrett right before the tumultuous 2020 presidential election proved to be the coup de grâce. On paper at least, there is a 6-3 conservative majority for the first time in nearly a century. 

Still, as I have documented elsewhere, Justices Kavanaugh, Barrett, and to a lesser extent Gorsuch, have voted to the left of Justices Thomas and Alito. The three Trump appointees are simply not as conservative as they could have been. But conservatives should not be surprised by President Trump's Supreme Court picks. Their track record–both what they did and did not do–have predicted their views on the high court. This post will discuss Justice Gorsuch. Future posts will focus on Justices Kavanaugh and Barrett.

In June 2020, many conservatives were stunned by Justice Gorsuch's majority decision in Bostock v. Clayton County. He found that Title VII of the Civil Rights Act of 1964 prohibits discrimination against employees because of their sexual orientation or gender identity. This case was 6-3, with Chief Justice John Roberts, and the progressives in the majority. Justices Thomas, Alito, and Kavanaugh dissented. This decision came as something of a shock to the right. Indeed, Senator Josh Hawley of Missouri warned that Bostock may "represent[] the end of the conservative legal movement." (The rumors of the movement's death were greatly exaggerated.)

Bostock was not a one-off for Justice Gorsuch with regard to federal protections for LGBT people. In several other lesser-profile cases, he parted company with Justices Thomas and Alito. First, in Idaho Department of Correction v. Edmo, the Ninth Circuit held that denying transition treatment for a transgender inmate was unconstitutional. Idaho asked the Supreme Court for an emergency stay of the lower court ruling. Only Justices Thomas and Alito would have granted that relief. Later, Edmo was provided the transition treatment and the case ostensibly became moot. Justices Thomas and Alito would have vacated the lower court's decision. Justice Gorsuch was once again silent, letting this precedent of the Ninth Circuit stand. (Justice Kavanaugh was confirmed one week before certiorari was denied, so he likely did not participate in that case.)

Second, Gloucester County School Board v. Grimm involved a transgender student and bathrooms at a public school. The Fourth Circuit held that both Title IX and the Equal Protection Clause of the Fourteenth Amendment prohibited denying transgender students access to the restrooms assigned to the opposite biological sex. By the time the cert petition reached the Supreme Court, the Biden administration had adopted the Fourth Circuit's reading of Title IX, in light of Bostock. However, rather than resolving whether the Department of Education was correct, the Supreme Court simply denied certiorari. Justices Thomas and Alito would have granted the petition. Justice Gorsuch was silent, as were Justices Kavanaugh and Barrett, letting this precedent of the Fourth Circuit stand

Third, in Kincaid v. Williams, the Fourth Circuit held that the Americans with Disabilities Act required a prison to accommodate an inmate's gender dysphoria. On appeal, the Supreme Court denied certiorari. Justices Alito and Thomas would have granted the petition right away, finding there was "no good reason for delay." Justice Gorsuch, as well as the other two Trump appointees, let the precedent of the Fourth Circuit stand. 

Should Bostock, Edmo, Grimm, and Kincaid have been surprises? Not really. In 2008, then-Judge Gorsuch sat by designation on the U.S. Court of Appeals for the Ninth Circuit. He heard Kastl v. Maricopa County Community College District on a panel with appointees by Presidents Carter and Clinton. The case concerned Rebecca Kastl who "presented full-time as female." After "complaints that a man was using the women's restroom," Kastl was banned "from using the women's restroom until she could prove completion of sex reassignment surgery." The Ninth Circuit had previously held that California law prohibited discrimination against "transgender individuals" based on the "victim's real or perceived non-conformance to socially-constructed gender norms." That opinion was authored by the liberal lion of the Ninth Circuit, Judge Stephen Reinhardt. The Kastl panel then extended that state law doctrine to Title VII. Gorsuch agreed with the Carter and Clinton appointees to extend that Reinhardt precedent to Title VII. Under Gorsuch's view, federal law had all along barred "impermissible gender stereotypes" of a transgender individuals. One such impermissible stereotype was the notion that bathrooms can be assigned based on a person's biological sex. Kastl was an unpublished, non-precedential three-page order. But it was cited by many district court opinions, as well as a case from the Eleventh Circuit. Here Judge Gorsuch decided an important question of federal law in a drive-by fashion.

Throughout his entire career, Justice Gorsuch has read the protections of federal law broadly–including the Equal Protection Clause, Title VII, Title IX, and the ADA–to broadly protect LGBT rights. Bostock, Edmo, Grimm, and Kincaid should not have been a surprise for anyone who read Kastl. And those who were responsible for nominating Gorsuch were no doubt aware of Kastl, and recommended him nonetheless.