The High Court’s direction may rely on the judge’s respect for the 2020 ruling that gender identity is covered by Title VII of the 1964 Civil Rights Act.
President Donald Trump’s executive order on gender in the military, along with similar orders affecting prisons, government documents, and pediatric medicine, has filed numerous lawsuits, bringing legal questions about transgender issues to the forefront of public awareness.
Policy questions are not new. Do biological men have the right to use women’s locker rooms? Can I force the use of specific pronouns and identifiers? Is it correct to allow hormone treatment in minors, especially if those changes cannot be reversed?
What’s new is how the US president is working on them.
On May 6, the Supreme Court allowed the Trump administration to openly ban trans people from serving the military as a lawsuit against the order filed.
Two days later, the Department of Defense said that such people would “initiate a voluntary separation process.”
The court battle could ultimately end in the Supreme Court. However, the direction justice will take is unclear, partly due to the court’s important decisions in 2020 regarding sexual orientation and gender.
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Courts should address constitutional questions about the nature of equal protection under the law and what constitutes discrimination based on gender. The outcome could be a critical legacy of the current administration.
Administrative Order
On his first day in office, Trump issued an order that the government would recognize two genders: male and female. The order directs federal agencies to eliminate “non-binary” classifications of government documents (“X”) on behalf of men or women, and states that government-issued identifications must reflect the individual’s biological sex.
The order ordered agencies to scrub websites in languages that promote “gender ideology.” The belief is that gender may differ from one’s biological gender.
Trump’s order also directed the Federal Prison Bureau to house male prisoners according to their biological sex and stop using federal money for their hormone treatment.
A week later he issued an order banning people from military service who banned gender discomfort, that is, the belief that they were born into bodies of the wrong biological sex.
The order aims to address issues related to financial and human resource costs arising from medical interventions to change the gender of such individuals. They also argue that the existence of such an army is harmful to unity and morale.
“It is a man’s claim that he is a woman, and his requirement for others to respect this falsehood is not consistent with the humility and selflessness required of a service member,” the order states.
The Department of Defense later said that transgender individuals can still serve, but if they no longer report suffering from gender discomfort only in their biological sex.
The following day, on January 28, Trump said he would refund hospitals and medical research institutions that implement gender transition procedures to young people under the age of 19. The order specifically calls on federal agencies to ignore previous guidance from the World’s Association of Professionals (WPATH).
It also directs the Department of Health and Human Services to “publish a review of existing literature on best practices to promote health in children who claim gender discomfort, rapid onset gender discomfort, or other identity-based confusion.”
Litigation
These orders, like many Trump administration policies, were filled with a flood of lawsuits.
Under the threat of losing federal dollars, many hospitals and research institutions have stopped gender procedures for minors.
The activist group PFLAG (lesbian and gay parents and friends) then filed a lawsuit on behalf of six transgender youth, claiming that the young plaintiff suffered irreparable damage from the interruption of gender transition. They also argued that Trump has surpassed his enforcement power by maintaining funds already approved by Congress.
US District Judge Brendan Herson ruled in favour of the PFLAG, writing in his opinion that interruption of gender change procedures could cause “unwanted physical changes, depression, increased anxiety, increased gender strays, severe distress, (or risk of suicide). His March 4th order prevented the government from “conditioning, withholding, or ending federal funds” from these agencies.
The “two gender” order prompted lawsuits by seven individuals who identified them as either transgender or non-binary. They said that the new rules forced them to “get out” themselves, as anyone looking at their passport might notice that the genders listed do not match their appearance. If the passport is believed to be fake, this could lead to physical harm and arrest, they said.
US District Judge Julia Covic has ruled in favour of plaintiffs, whose passport reflects the gender identity they have chosen. However, she did not issue a national bloc to government policies.
Other lawsuits were filed by prisoners identified as transgender women. Transgender women said that if they are forced to live among male prisoners after gender transition, they could face sexual assault or violence. In these two cases, Doev. Mchenry and Jonesv. In Trump, a federal judge stopped prisoners from being moved to men’s prison facilities.
Several members of the transgender service are Talbottv. Trumpand Shillingv. He filed a lawsuit in the case of Us. It claims that the new restrictions are based on animus for transgender soldiers.
US District Judge Anna Reyes agreed in the Talbot case. She issued the block on March 18th to prevent plaintiffs from being separated from the military. The government filed an appeal.
Similarly, in Schilling, Judge Benjamin opposed the ban. In both cases, the judge said the government provided little evidence to support the allegations that transgender soldiers had negative effects on the military.
Bostock Ultimate
President Trump has already filed a series of appeals with the Supreme Court. It appears that these cases could also be caught up in front of justice.
Bostockv, a judge in a lower court cited in a ruling against the administration if Justice acquires one of the gender-related cases. You can revisit precedents such as Clayton County’s 2020 decision.
In that case, the majority ruled that sexual orientation and gender identity were covered by Title VII of the Civil Rights Act of 1964, which prohibits discrimination in the workplace based on “racial, color, religion, gender, (and gender, (and) national origin.”
Judge Neil Gorsuch wrote, “When an employer fires an employee because he is gay or transgender, it inevitably and intentionally distinguishes for the individual for sex.”
The justice of Samuel Alito, Brett Kavanaugh and Clarence Thomas became obsessed with Bostock’s decision. In his opinion, Alito criticized Golsch’s reasoning.
“The rogative arrogance of this argument is breathtaking,” Alito wrote in dissent, arguing that Congress intended Title VII to be interpreted according to the opinion of the majority.
Some legal experts agree.
“Bostock went beyond the text and original intentions of Title VII,” said John Shu, a constitutional law expert who served in both Bush administrations.
“When Congress wrote the word “sex” in the 1964 statute, the word was commonly known and used to mean “female” or “female” rather than gay, lesbian or transgender,” Shu added.
Gorsuch’s majority has sought to limit Bostock’s inference to Title VII (Discrimination in the Workplace), but other courts and former president Joe Biden administration say it applies to equal protection guarantees under the 14th Amendment. If the High Court agrees to this reasoning, it will broaden the scope of Bostock.
Equal protection and due process billing
President Trump’s orders must clear another hurdle. This is the fifth amendment, which has been mentioned by many judges in blocking the president’s enforcement actions.
To grasp the judge’s reasoning, we need to understand that we are blending considerations from the 14th and 5th Amendments.
Both amendments guarantee due process under the law. The 14th applies to the states, and the fifth applies to the federal government.
However, the 14th amendment also includes an additional non-discrimination clause that ensures equal protections under the law for U.S. citizens. The judge has applied this equal protection clause to the federal government through the Fifth Amendment.
“Even though the Fifth Amendment applies to the federal government and does not include the term “equal protection,” the Supreme Court has long interpreted the due process clause of the Fifth Amendment to include an equal protection component,” former federal prosecutor Neema Ramani told the Epoch era.
The judge cited Bostock’s decision when he determined that President Trump’s order was violated by separating people from the military because he identified him as transgender.
Reyes admitted that Bostock’s ruling is limited to workplace discrimination, but said “that reasoning is not.”
“The Supreme Court speculated that it was impossible to discriminate against trans people, not discriminating against them based on their gender,” she wrote.
Former Attorney General Elizabeth Pleger also held the argument in US v. Skrmetti. The decision in that case is expected during the current term of the Supreme Court.
“If the Skrmetti Supreme Court finds that the state’s ban on transgender minor medical treatment violates the Equal Protection Clause of the 14th Amendment, the reasoning should apply to Trump’s executive order under the Fifth Amendment,” Rahmani said.
It is unclear how the Supreme Court will rule the US vs. Skrmetti, but verbal debates appear to indicate that justice is skeptical of the ban on minors’ gender proceedings.
Former Thomas Clerk and JCN president Carrie Severino told the Epoch Times that the court’s ruling “may not touch on Bostock at all in its decision at Skrmetti.”
“As Justice Alito pointed out in his oral argument, Bostock was an example of turning on a particular language in Title VII, and in this case it was neither constitutional nor problematic,” she said.
“On the other hand, opponents may develop it because they want to bootstrap Bostock’s misinterpretation of Title VII into constitutional preservation,” she added.
Bostock’s precedent could be completely overturned since the late Judge Ruth Budder Ginsberg was replaced by Amy Connie Barrett.
