By: Nelson Garcia
Transgender individuals are being stripped of their rights all over the country. Eight states, including Florida, have restricted transgender care for minors;[1] Florida’s Parental Rights in Education law, also known as the “Don’t Say Gay” law, prevents discussion of gender identity in our schools;[2] and Arkansas recently passed a law that bars transgender people from using school restrooms that do not align with the sex listed on their birth certificate.[3] It is clear that transgender individuals are in need of protection from such sinister and discriminatory laws, and whether they are entitled to that protection may soon be decided by the Supreme Court.
West Virginia v. B.P.J. asks the Court to address whether government discrimination against transgender individuals is inherently suspect under the Constitution, and so must be subject to heightened scrutiny by the courts.[4] How the Court decides the case will be far-reaching in the fight for equality for transgender people, as the courts almost always invalidate anti-LGBTQ+ laws when heightened scrutiny is employed.[5]
B.P.J., the plaintiff in the case, brought an action against West Virginia after the state’s “Sports Act” prevented her from joining the girls’ cross country and track teams at her school.[6] The Sports Act mandates that only those whose reproductive biology and genetics were classified as female at birth can play on girls’ teams.[7] The student and her mother say the West Virginia law violates the U.S. Constitution’s 14th Amendment guarantee of equal protection, as well as the Title IX civil rights law barring sex-based discrimination in education.[8]
While the Supreme Court has never decided whether the Equal Protection Clause and Title IX of the Civil Rights Act protect transgender individuals from government discrimination, in Bostock v. Clayton County[9], the Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on sex[10], also prohibits employment discrimination based on sexual orientation or gender identity. The reasoning in the Bostock could be crucial to how the court decides West Virginia v. B.P.J.
In Bostock, the Court explained that an employer who fires an individual merely for being gay or transgender violates Title VII.[11] The Court reasoned that an employer who fires an individual for being homosexual or transgender, fires that person for traits or actions it would not have questioned in members of a different sex,[12] and explicitly stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[13] If the Supreme Court relies on this reasoning, then it would almost certainly hold that government discrimination against transgender individuals is inherently suspect under the Constitution and subject to heightened scrutiny. Five of the justices who formed the majority in Bostock remain on the bench, signaling that a ruling in B.P.J.’s favor could be likely.
It is worth highlighting that West Virginia v. B.P.J. arises on the Court’s shadow docket. The shadow docket is an emergency petition that allows the court to decide a case in a very tight time frame, forgoing the months of briefing, argument, and deliberation that normally proceed a Supreme Court decision.[14] Shadow docket decisions are somewhat controversial as they lack public deliberation and transparency and potentially leave lower courts in the dark about how to apply Supreme Court precedent moving forward.[15] Due to the consequentiality of the case, the justices could decide to wave away the shadow docket motion and wait to decide B.P.J. until after it arrives on the Court’s regular docket through the ordinary, more deliberative process.[16]
Transgender individuals are under attack and protection through the Equal Protection Clause and Title IX of the Civil Rights Act will provide the legal precent necessary to ensure they are equal to every other person in the country. Without such protections, there could be irreparable harm and result in the erasure of transgender people in society.
[1]Jo Yurcaba, Florida becomes eighth state to restrict transgender care for minors, NBC News, March 16, 2023,
[2]Jaclyn Diaz, Florida’s governor signs controversial law opponents dubbed ‘Don’t Say Gay’, NPR, March 28, 2022, https://www.npr.org/2022/03/28/1089221657/dont-say-gay-florida-desantis.
[3] Shawna Mizelle, Arkansas governor signs bill that restricts transgender students’ bathroom use in schools, CNN, March 22, 2023, https://www.cnn.com/2023/03/22/politics/arkansas-transgender-bathroom-ban-law/index.html.
[4] Ian Millhiser, A new Supreme Court case could be the most important transgender rights decision ever, VOX, March 14, 2023, https://www.vox.com/politics/2023/3/14/23635663/supreme-court-transgender-sports-constitution-stanford-kyle-duncan-protest.
[5]Christopher R. Leslie, The Geography of Equal Protection, 101 MINN. L. REV. 1579, 1580 (2017).
[6] Ian Millhiser, A new Supreme Court case could be the most important transgender rights decision ever, VOX, March 14, 2023, https://www.vox.com/politics/2023/3/14/23635663/supreme-court-transgender-sports-constitution-stanford-kyle-duncan-protest.
[7] Id.
[8] Robert Barnes, Supreme Court asked to allow West Virginia’s transgender athlete ban, Washington Post, March 21, 2023, https://www.washingtonpost.com/politics/2023/03/21/transgender-school-athlete-west-virginia-supreme-court/.
[9] 140 S. Ct. 1731 (2020).
[10] Id. at 1734; 42 U.S.C. § 2000e–2(a)(1) (emphasis added). It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
[11] Id.
[12] Id. at 1731.
[13] Id. at 1741.
[14] Ian Millhiser, A new Supreme Court case could be the most important transgender rights decision ever, VOX, March 14, 2023, https://www.vox.com/politics/2023/3/14/23635663/supreme-court-transgender-sports-constitution-stanford-kyle-duncan-protest.
[15] Samantha O’Connell, Supreme Court “Shadow Docket” Under Review by U.S. House of Representatives, American Bar Association, April 14, 2021, https://www.americanbar.org/groups/committees/death_penalty_representation/publications/project_blog/scotus-shadow-docket-under-review-by-house-reps/.
[16] Id. Ian Millhiser, A new Supreme Court case could be the most important transgender rights decision ever, VOX, March 14, 2023, https://www.vox.com/politics/2023/3/14/23635663/supreme-court-transgender-sports-constitution-stanford-kyle-duncan-protest.
