Protecting Transgender Youth After Bostock: Sex Classification, Sex Stereotypes, and the Future of Equal Protection.

• Author: Fredericksen, Erik

NOTE CONTENTS INTRODUCTION 1151 I. UNDERSTANDING BOSTOCK 1154 A. The Path Not Taken 1156 B. Bostock's Method and Bostock's Holding 1164 II. BOSTOCK AND THE EOUAL PROTECTION CLAUSE 1167 A. Bostock's Straightforward Application to Equal-Protection Law 1169 B. Potential Counterarguments 1171 C. The Difference Bostock Would Make 1175 III. PROTECTING TRANSGENDER YOUTH AFTER BOSTOCK 1176 A. Bostock and the Attack on Transgender Youth 1178 B. Sex-Stereotype Reasoning in Cases Involving Transgender Youth 1186 C. The Confused Transgender Child: A New Sex-Stereotyping Argument 1190 D. The Transgender-Confusion Stereotype in Gender-Affirming Healthcare Bans 1196 E. The Transgender-Confusion Stereotype in Other Antitransgender Policies 1204 F. Responses to Sex-Stereotyping Arguments 1206 CONCLUSION 1210 INTRODUCTION

In 2020, as the Supreme Court was preparing to hand down its momentous decision protecting LGBT (1) adults from employment discrimination in Bostock v. Clayton County, (2) fifteen state legislatures were debating bills whose purpose was to stop children from becoming like those adults. These were bans on gender-affirming healthcare for minors. (3) Less than one year after Bostock, Arkansas became the first state to pass such a law. (4) Such laws are the most extreme form of a new crop of state legislation targeting transgender minors, (5) which also includes laws prohibiting transgender student-athletes from participating in sports consistent with their gender identity. (6) These state laws are significant for the way they have shifted legal and political contestation over transgender rights to focus on transgender youth in particular, building on conflicts over transgender students' access to sex-specific spaces in school. They are also significant for generating some of the first legal disputes over transgender equality after Bostock. They thus furnish an opportunity to take stock of Bostock and to evaluate its impact on LGBT equality beyond Title VII--and in particular, under the Constitution.

This Note takes up those questions, arguing that the holding of Bostock--that discrimination against LGBT persons is necessarily sex discrimination--applies under the Equal Protection Clause of the Constitution. (7) Because Justice Gorsuch presented the majority opinion as nothing more than a routine application of textualism, those who seek to limit the impact of Bostock might suggest that the opinion only affects Title VII or statutes with similar language. I argue, however, that the opinion in fact relies on (1) a logical conclusion that LGBT classifications are necessarily sex classifications, and (2) a purely anticlassificationist understanding of discrimination. Because equal-protection doctrine uses an anticlassification inquiry to determine whether to apply intermediate scrutiny, Bostock's holding applies equally in that context. The formalistic reasoning approved by the U.S. Supreme Court in Bostock logically means that any state action distinguishing on the basis of sexual orientation or gender identity distinguishes on the basis of sex and thus requires intermediate scrutiny. This result would effectively make sexual orientation and gender identity protected characteristics under the Equal Protection Clause.

Recognizing anti-LGBT discrimination as a form of sex discrimination will shift rather than resolve constitutional conflict over LGBT--and especially transgender--equality. Once judges apply intermediate scrutiny to laws discriminating against LGBT people, Bostock will be of little help in evaluating those laws because of its thin understanding of discrimination. Applying intermediate scrutiny, courts will need to reason about the social meaning and context of LGBT classifications--exactly the kind of reasoning the majority opinion in Bostock studiously avoids. In other words, the potentially transformative holding of Bostock enables breakthrough constitutional progress for LGBT people, but fully realizing such progress will require going beyond that opinion's limited and limiting approach.

This Note locates the beginnings of post-Bostock constitutional developments in current litigation over school policies and state laws targeting transgender minors. In the wake of Bostock, a number of federal courts have invalidated or preliminarily enjoined school policies prohibiting transgender students from using the restrooms that align with their gender identity; (8) Idaho, Indiana, and West Virginia laws prohibiting transgender girls and young women from participating on female sports teams; (9) and Arkansas's and Alabama's bans on gender-affirming healthcare for minors. (10) So far, these courts have extended Bostock into the equal-protection realm tentatively, deciding on other grounds that intermediate scrutiny is needed and then adding that Bostock supports or confirms that decision. Still, their opinions have begun to build out Bostock's constitutional impact. In applying intermediate scrutiny, these decisions gesture toward sex stereotyping to varying degrees without relying fully on such reasoning. (11)

After surveying these decisions, I contend that state laws and policies discriminating against transgender youth are based on and entrench a sex stereotype that no court has yet articulated: the stereotype of the "confused transgender child." This stereotype takes many forms. But at its core, the stereotype is built on the idea that transgender minors are confused or misled about their own identity, or merely going through a temporary phase, while cisgender minors are not. This stereotype subjects only transgender minors to skepticism, interrogation, and doubt concerning their identity, presuming that cisgender minors are correct about theirs. Building on earlier fears and stereotypes about queer people, it tends to treat cisgender identity as natural and transgender identity as the result of some malign influence. As I argue in this Note, recent state regulation targeting transgender minors unconstitutionally relies on this sex-based stereotype in order to steer minors into normatively defined sex roles.

This Note proceeds in three Parts. Part I examines the majority opinion in Bostock, showing that it rejected available sex-stereotyping arguments in favor of an anticlassification argument. The opinion relies on a logical conclusion that LGBT classifications are sex classifications, combined with an understanding of discrimination as mere classification. Building on this understanding of the opinion, Part II argues first that Bostock's holding applies to equal-protection analysis. Section II.C then explains why, even if courts apply Bostock in equalprotection analysis, much discrimination would survive intermediate scrutiny if courts follow the Bostock majority in ignoring the relationship between anti-LGBT discrimination and sex stereotypes.

Finally, in Part III, I put this theory into practice. I start by analyzing how courts after Bostock have handled equal-protection challenges to laws and policies targeting transgender minors. Then I show how advocates can deploy Bostock and sex-stereotyping arguments--including the confused-transgender-child stereotype identified by this Note--to challenge laws and policies targeting transgender minors. With a particular focus on Arkansas's gender-affirming healthcare ban, (12) I argue that these laws and policies are built on sex stereotyping and are not adequately explained or justified by actual physical differences between the sexes. Therefore, they cannot withstand intermediate scrutiny. Finally, I contend that sex-stereotype reasoning has unique dialogic value in disputes over transgender minors: it speaks directly to states' inability to force minors into narrowly prescribed sex roles and allows courts and others to affirm transgender youth in ways the formalistic reasoning of Bostock cannot.

Protecting transgender youth under the Constitution will be most fully advanced by moving beyond Bostock, including by using the sex-stereotyping arguments Bostock ignored. While some have seen the opinion as offering a promising (if imperfectly realized) path to revitalizing antidiscrimination law, (13) I suggest in this Note that adopting Bostock's approach more broadly--ignoring the history, context, and social meaning of discrimination--would impoverish antidiscrimination law. Still, it is Bostock's formalistic reasoning that, by logically requiring intermediate scrutiny for LGBT classifications, can afford courts more opportunities to reason about the connections between anti-LGBT discrimination, sexism, and sex stereotypes. As I show in the context of disputes over transgender youth, advocates can utilize Bostock together with the arguments it ignored in order to build a robust foundation for LGBT equality under the Constitution.

1. UNDERSTANDING BOSTOCK

   In this Part, I analyze the majority opinion in Bostock v. Clayton County, identifying its anticlassification approach in order to better understand the logic underpinning its holding and how that logic may apply under the Equal Protection Clause. Bostock consolidated two cases brought under Title VII. In one, Donald Zarda had been fired from his job because he was gay, and in the other, Aimee Stephens had been fired from her job because she was transgender. (14) Together, the two cases raised the question of whether Title VII's prohibition on sex discrimination in employment prohibits discrimination on the basis of sexual orientation and gender identity. By a six-three vote, the Court held that it does. Early reactions to Justice Gorsuch's majority opinion paid much attention to the form of textualism it employed, but somewhat less attention to the substantive understanding of antidiscrimination law it assumed. (15) Indeed, the emphasis on textualist method in the majority opinion and dissents obscures the normative and substantive judgment at the heart of the Court's decision. For whether it was...