Episode 109
The Bostock Bounce Back? How Skrmetti's Retreat from Bostock Sets Up a SCOTUS Sports Showdown
This episode revisits the Supreme Court's 2020 Bostock decision and examines how the Court's recent retreat from Bostock in United States v. Skrmetti sets up a constitutional showdown over transgender rights in school sports.
We analyze the methodical legal reasoning behind Bostock's landmark ruling that Title VII protects gay and transgender employees, then explore how each faction of justices treated Bostock differently in Skrmetti's constitutional challenge to Tennessee's transgender healthcare ban.
The episode concludes by examining how both sides strategically deployed Bostock and anticipated Skrmetti's outcome in their cert petitions for the upcoming transgender sports cases, revealing fundamental disagreements about statutory interpretation, constitutional methodology, and the scope of civil rights protections.
Cases Covered:
- Bostock v. Clayton County | Case No. 17-1618, 17-1623, 18-107 | Opinion: Here
- United States v. Skrmetti | Case No. 23-477 | Opinion: Here
- State of West Virginia v. B.P.J. | Case No. 24-735 | Docket Link: Here
- Little v. Hecox (Idaho) | Case No. 24-38 | Docket Link: Here
- West Virginia v. B.P.J. | Case No. 24-43 | Docket Link: Here
Episodes Referenced:
- August 5th Roundup: Presidential Power Crushes Agency Independence, Court Places Voting Rights Act in Crosshairs and Maryland v. Shatzer, a Case That Evolved Beyond Its Origins | Link: Here
- July 7th Roundup: New Certs: Transgender Rights in Schools and Religious Liberties | Link: Here
- Opinion Summary: United States v. Skrmetti | Date Decided: 6/18/25 | Case No. 23-477 | Link: Here
- Oral Argument: United States v. Skrmetti | Case No. 23-477 | Date Argued: 12/4/24 | Link: Here
Transcript
Welcome back to SCOTUS oral arguments and Opinions.
Speaker A:Last week we returned from a brief hiatus to cover recent Supreme Court happenings and to deep dive into Maryland versus Shatzer.
Speaker A:This week we'll see how Bostock and Scremetti may shape the upcoming Supreme Court cases involving transgender restrictions in sports.
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Speaker A:Please note that this podcast is read by an automated voice, but created by a very human lawyer who reads the briefs and opinions so you don't have to alright, let's get started.
Speaker A:Since the Supreme Court sat silent on the emergency and regular dockets, there's nothing new to report there.
Speaker A:That brings us to today's feature, the battle over Bostock, Skremetti and transgender rights in sports.
Speaker A:I'm talking about Little vs. Hecox in West Virginia vs. BPJ, which I covered in our July 7 episode.
Speaker A:In general, little in West Virginia involve challenges to state laws that require students to play on sports teams that match their biological sex assigned at birth, not the sex they identify with.
Speaker A:So, for example, in bpj, a transgender middle school student sued because bpj, a biological male, wanted to play on the female cross country and track teams.
Speaker A:Both cases were briefed before Scurmetti was decided, which creates a fascinating snapshot of how lawyers tried to predict the court's direction.
Speaker A:You may remember from the July 7 episode that the court granted cert on both cases on July 3rd and just two weeks after deciding Scrumetti.
Speaker A:Rather than sending the cases back to lower courts to reconsider in light of Scremetti, the court immediately agreed to hear them.
Speaker A:Check out that July 7 episode for more analysis of the arguments and the court's unusually fast timeline.
Speaker A:The party's merits briefs are due in September and November.
Speaker A:Here's what to expect Bostock and Scarmetti will dominate the merits briefs, oral arguments and final opinions.
Speaker A:Since Scarmetti came out after the cert stage, don't be surprised if both sides adjust their strategies based on Scarametti's outcome and reasoning.
Speaker A:Let's set the battle stage for Little in West Virginia.
Speaker A:To do this, we begin with Bostock.
Speaker A: This: Speaker A: ch defined the key terms from: Speaker A:When Title VII was written?
Speaker A:The court accepted the employer's own definition, status as either male or female as determined by reproductive biology.
Speaker A:This definition is sneaky critical.
Speaker A:Second, what does because of mean?
Speaker A: The court found that in: Speaker A:In legal terms, this triggers what lawyers call but for causation.
Speaker A:If changing one factor would change the outcome, that factor caused the result.
Speaker A:Third, what does discriminate mean?
Speaker A: The court looked to Webster's: Speaker A:So discrimination means treating someone worse than similarly situated people.
Speaker A:Fourth, the court noted that Title VII protects individuals, not groups.
Speaker A: the word individual, which in: Speaker A:Now comes the crucial application.
Speaker A:The court applied this methodology to create what I call the Bostock an employer violates Title vii, which when it intentionally fires an individual employee based in part on sex.
Speaker A:Here's how this works in practice.
Speaker A:Take Gerald Bostock.
Speaker A:The employer fired him for being attracted to men, but the employer wouldn't fire a woman for being attracted to men.
Speaker A:Therefore, Bostock's sex was a but for cause of his termination.
Speaker A:The court put is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
Speaker A:What stood out here is how Gorsuch built an airtight, logical case.
Speaker A:Sexual orientation always involves two the employee's sex plus the sex of those they're attracted to.
Speaker A:Since you can't have homosexuality without considering sex, firing someone for homosexuality necessarily involves sex discrimination.
Speaker A:The same logic applied to Amy Stevens.
Speaker A:The funeral home fired her for transitioning from male to female.
Speaker A:But the employer wouldn't fire someone assigned female at birth for identifying as female.
Speaker A:Again, sex was a but for cause.
Speaker A:But here's a crucial part, and this becomes important later.
Speaker A:Gorsuch explicitly limited the ruling to Title 7.
Speaker A:The court stated it would not sweep beyond Title VII to other federal or state laws that prohibit sex discrimination.
Speaker A:Gorsuch also expressly declined to address bathrooms, locker rooms, or anything else of the kind.
Speaker A:Fast forward four years to Scremetti.
Speaker A:Tennessee passes SB1, which prohibits doctors from prescribing puberty blockers or hormones to minors for gender transition.
Speaker A:The same medications remain legal for other conditions, like precocious puberty.
Speaker A:Three transgender minors and their families sued.
Speaker A:The case eventually reaches the Supreme Court as United States v. Scarmetti.
Speaker A:This case posed a different question than Bostock.
Speaker A:Bostock dealt with statutory interpretation.
Speaker A:What does Title VII mean?
Speaker A:Scarmetti tackled constitutional law.
Speaker A:Does Tennessee's law violate the Equal Protection Clause.
Speaker A:The Equal Protection Clause requires governments to treat similarly situated people equally equally, but not all government classifications trigger the same scrutiny.
Speaker A:Laws based on race get strict scrutiny.
Speaker A:They're almost always struck down.
Speaker A:Laws based on sex get intermediate scrutiny.
Speaker A:They must serve important government objectives.
Speaker A:Most other laws get rational basis review.
Speaker A:They just need some reasonable justification.
Speaker A:The question in what level of scrutiny applies to laws affecting transgender people?
Speaker A:The question for this podcast was how did Square Metti treat Bostock?
Speaker A:Spoiler alert.
Speaker A:Each group of Justices treated Bostock completely differently.
Speaker A:Chief Justice Roberts and the majority treated Bostock like a hot potato.
Speaker A:Roberts explicitly declined to address whether Bostock's reasoning reached beyond Title seventh, but then applied Bostock's but for test.
Speaker A:Roberts held that under Bostock's reasoning, neither the Scurmetti plaintiff's sex nor transgender status is the but for cause of his inability to obtain testosterone.
Speaker A:According to Justice Roberts, if a transgender boy seeks testosterone to treat his gender dysphoria, SB1 prevents a healthcare provider from administering it to him.
Speaker A:If you change his biological sex from female to male, SB1 would still not permit him the hormones he seeks because he would lack a qualifying diagnosis for the testosterone, such as a congenital defect, precocious puberty disease, or physical injury.
Speaker A:The transgender boy could receive testosterone only if he had one of those permissible diagnoses.
Speaker A:The majority reasoned that changing a patient's sex or transgender status wouldn't change the law's application.
Speaker A:Tennessee prohibits certain treatments for specific diagnoses gender dysphoria, gender identity disorder.
Speaker A:The prohibition isn't based on sex itself, the majority argued.
Speaker A:Just as Thomas took the gloves off, Thomas wrote a concurrence that basically declared war on Bostock.
Speaker A:Thomas stated he continues to think that the Bostock majority's logic fails on its own terms.
Speaker A:Thomas emphasized that the Equal Protection Clause contains none of Title 7's specific language.
Speaker A:Different laws, different results.
Speaker A:Thomas argued that extending Bostock would depart dramatically from this Court's Equal Protection Clause jurisprudence.
Speaker A:Justice Sotomayor fought back hard.
Speaker A:Sotomayor's dissent fully embraced Bostock's reasoning.
Speaker A:She argued, there's no reason to think a law could simultaneously be sex based under Title VII and sex neutral under the Equal Protection Clause.
Speaker A:Sotomayor applied Bostock's but for test directly to Tennessee's law.
Speaker A:She concluded that the law necessarily discriminates based on sex because it treats people differently based on whether their gender identity matches their biological sex.
Speaker A:What stood out here is the methodological divide.
Speaker A:Conservatives see Bostock as narrowly confined to Title VII's specific text.
Speaker A:Liberals view Bostock as establishing broader principles about sex discrimination than that apply across all legal contexts.
Speaker A:This battle over Bostock's scope isn't just academic.
Speaker A:Right now, it's playing out in two major sports cases that the court might hear this term.
Speaker A:Both cases involve state laws requiring students to compete on teams matching their biological sex assigned at birth.
Speaker A:Both cases were briefed before Scremetti was decided, which creates a fascinating snapshot of how lawyers tried to predict the court's direction.
Speaker A:Let's go over how each side weaponized both Bostock and the anticipated as you recall from our July 7 episode, one case involves BPJ, a transgender middle school student in West Virginia.
Speaker A:BPJ wanted to play on the girls cross country and track teams.
Speaker A:West Virginia's law said no biological boys must compete on boys teams.
Speaker A:BPJ sued under two theories.
Speaker A: , the: Speaker A:Second, the Equal protection clause.
Speaker A:The Fourth Circuit ruled in BPJ's favor on both claims.
Speaker A:Here's how West Virginia fought back against West Virginia argued that Bostock's text driven reasoning applies only to Title vii.
Speaker A:The state emphasized that the court carefully cabined its decision to not extend beyond employment law.
Speaker A:West Virginia made a sophisticated argument about state statutory differences.
Speaker A:Title VII prohibits discrimination based on multiple traits in employment.
Speaker A:Title 9 focuses solely on sex discrimination in education.
Speaker A:Different statutes, different contexts, different results.
Speaker A:West Virginia also Pointed to the 6th Circuit Scremetti decision, which stated that Bostock's reasoning applies only to Title seven.
Speaker A:This created what lawyers call a circuit split, different federal appeals courts reaching different conclusions on the same legal question.
Speaker A:BPJS team took the opposite approach.
Speaker A:BPJS lawyers argued that Congress made the same choices when it wrote Title IX as in Title vii, both statutes use similar on the basis of language both require, but for causation.
Speaker A:Bpjs brief applied Bostock's reasoning directly.
Speaker A:When a student is discriminated against for being transgender, sex plays a necessary and undisguisable role in the decision.
Speaker A:The Brief cited the 9th Circuit's conclusion that we do not think Bostock can be limited to title 7th given the similarity in anti discrimination language.
Speaker A:What stood out here is BPJ's strategic positioning on Skermetti rather than fighting Skermetti directly.
Speaker A:BPJ's team suggested holding the case pending SC's resolution.
Speaker A:They argued Skermetti would likely resolve the circuit splits West Virginia claimed, eliminating the need for immediate Supreme Court review.
Speaker A:Our second case involves Lindsay Hecox, a transgender college student who wanted to compete on Boise State's women's cross country and track teams.
Speaker A:Idaho's Fairness in Women's Sports act said no.
Speaker A:The 9th Circuit ruled.
Speaker A:In Lindsay's favorite finding, Idaho's law violated the Equal Protection Clause.
Speaker A:The court treated transgender status as what lawyers call a quasi suspect classification, a category that gets heightened constitutional protection.
Speaker A:Idaho's strategy was particularly clever.
Speaker A:Idaho strategically embraced Bostock's textual interpretation approach while arguing it supports their position.
Speaker A:The state quoted Bostock's warning against courts that add to remodel, update or detract from old statutory terms.
Speaker A:Idaho argued that Bostock actually supports a restrictive biological definition of sex.
Speaker A: en sex means what it meant in: Speaker A:Biological sex determined at birth.
Speaker A:Idaho made a sophisticated four part argument for why Scremetti wouldn't resolve their case.
Speaker A:First, definitional Scermetti focuses on classification analysis, not the fundamental definition of what sex means under the Equal Protection Clause.
Speaker A:Second, deference issues Sports regulation involves different state interests than medical regulation.
Speaker A:Scrumetti wouldn't address how much deference courts should give states protecting women's athletics.
Speaker A:Third, context specific analysis the government's interest in safeguarding minors from experimental medical procedures differs from its interest in maintaining competitive fairness in sports.
Speaker A:Fourth, Title IX Both Idaho's case and West Virginia's case include Title IX issues that Scoremetti doesn't address.
Speaker A:Lindsay's response took a completely different approach.
Speaker A:Surprisingly, Lindsay's brief barely mentioned Bostock.
Speaker A:Instead of fighting over Bostock's scope, the brief position transgender rights as part of broader constitutional principles.
Speaker A:Lindsay's team fully embraced Delay, arguing for holding the case pending Scurmetti.
Speaker A:They contended that Scermetti would resolve the circuit splits, Idaho claimed, making Supreme Court review unnecessary.
Speaker A:What stood out here is how differently each side viewed timing.
Speaker A:Idaho aggressively pushed for immediate review.
Speaker A:Lindsey preferred to wait and see how Scermetti developed law.
Speaker A:The well, that's how in the upcoming transgender cases, the parties deployed Bostock and Skermetti.
Speaker A:Now that Skermetti has been decided, we'll see how the parties frame Bostock and Skermetti.
Speaker A:Given Bostock's own limitation of Skermetti's dismissal of Bostock, it seems unlikely that the court will extend Bostock to the Title IX context.
Speaker A:But at the same time, does it logically follow if the court extends Scarmetti's constitutional holding to Title IX but declines to extend Bostock's Title 7 statutory interpretation holding Only time will tell how this dilemma shakes out.
Speaker A:We'll be sure to follow this case and keep you updated as these cases progress.
Speaker A:Last point on today's episode, I want to highlight possible foreshadowing from the Skremetti oral arguments Justices Kavanaugh and Barrett asked.
Speaker A:The advocates appreciate question how their proposed rulings would impact laws governing sports participation, specifically laws that prohibit people from participating in sports based on their identified sex rather than their biological sex, and want.
Speaker B:To ask in particular about one thing.
Speaker B:If you prevail here on the standard of review, what would that mean for women's and girls sports?
Speaker B:In particular, would transgender athletes have a constitutional right, as you see it, to play in women's and girls sports, basketball, swimming, volleyball, track, etc.
Speaker B:Notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes seen in the amicus brief of the many women athletes in this case?
Speaker B:So can you explain how intermediate scrutiny would apply to women's sports in a way that translates transgender athletes cannot participate would satisfy intermediate scrutiny?
Speaker B:Is that logically possible?
Speaker C:Okay.
Speaker C:And last legal question, I was just going to ask you one.
Speaker C:I have a second one.
Speaker C:Could you address Justice Kavanaugh's questions about what the implications of this case would be for the athletic context or the bathroom's context?
Speaker A:These questions proved remarkably forward looking.
Speaker A:The Justices were already anticipating the exact legal battles we're seeing today in cases like West Virginia versus BPJ and Little versus Hecox.
Speaker A:The way they framed their questions, at bottom, it seemed like they held concerns about constitutionalizing transgender rights.
Speaker A:The battle over Bostock's legacy reveals fundamental tensions in law.
Speaker A:How do we interpret legal texts written decades ago in contexts the drafters never imagined?
Speaker A:When should courts extend precedents beyond their original context?
Speaker A:How do we balance competing claims about fairness and equality?
Speaker A:These aren't just legal questions.
Speaker A:They're deeply human questions about dignity, inclusion, and opportunity.
Speaker A:The Supreme Court's answers will echo through American society for generations.
Speaker A:That's it for today's deep dive into Bostock, Skermetti, and the future of transgender rights in sports.
Speaker A:These cases demonstrate how constitutional law develops through incremental decisions, each building on previous foundations while pushing in new directions.
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