Transgender rights advocates’ hope in Gorsuch fades after athlete ban ruling

Any hope among transgender rights advocates that Justice Neil Gorsuch could enable them to eke out wins before the conservative-majority Supreme Court has faded. 

That optimism sparked in 2020, with Gorsuch’s decision that employers can’t fire people because they are gay or transgender. 

But over the past year, in major cases implicating LGBTQ issues, the appointee of President Trump has sided with the other conservative justices, repeatedly forming a 6-3 split along ideological lines.

In upholding transgender athlete bans this week, Gorsuch said any assumption he would rule otherwise is a “mistake.” He penned a solo opinion making clear that his old ruling was a narrow circumstance, and it supported upholding transgender athlete bans.

“All of that is consistent with the course the Court takes today,” Gorsuch wrote. 

The transgender athletes in schools ruling came on the heels of decisions upholding youth gender-affirming care bans, allowing parents to opt out their kids from lessons with LGBTQ-themed books and an emergency ruling allowing Trump to enforce his transgender military policy. The cases each involve distinct legal issues, but the streak has left transgender rights advocates disappointed but largely unsurprised by the Supreme Court’s latest decision.

Joshua Block, who argued the transgender athlete case before the justices as senior counsel at the American Civil Liberties Union’s (ACLU) LGBTQ & HIV Projects, said the procedural posture suggested where the justices were headed from the moment they took up the battle one year ago. He was focused on minimizing the impact. 

“There’s no question that the court is not on a good trajectory,” Block said. “And so, I think a lot of the issue in these cases is how far, how big is each step the court makes.”

All nine justices rejected a challenge under Title IX, the federal law that prohibits sex discrimination in schools. When it came to the Constitution, Tuesday’s decision upholding Idaho’s and West Virginia’s laws landed 6-3. Gorsuch joined the five other conservative justices that transgender athlete bans in schools didn’t run afoul of the 14th Amendment’s equal protection guarantee.

“I had hope in him,” said Anthony Sbardellati, a partner at Grove Law who filed a........

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