Some folks seem to think that Justice Gorsuch’s majority opinion in Bostock v. Clayton County (2020) means that the Court should rule in United States v. Skrmetti that laws affecting individuals who identify as transgender are subject to heightened scrutiny under the Equal Protection Clause. The Court ruled in Bostock that Title VII’s ban on discrimination “because of … sex” prohibits discrimination on the basis of transgender status, so, the thinking goes, it should rule that heightened scrutiny under the Equal Protection Clause for classifications based on sex extends to classifications based on transgender status.
Let’s set aside for purposes of this post that the Tennessee law at issue in Skrmetti does not in fact classify on the basis of transgender status. (See Tennessee’s brief at 41-44.) Even if it did, the reasoning in Bostock cuts strongly and decisively against transplanting its Title VII holding into the Equal Protection Clause.
Justice Gorsuch’s opinion in Bostock turns on the specific text of Title VII. Gorsuch holds that the phrase “because of … sex” in Title VII “incorporates the simple and traditional standard of but-for causation” (cleaned up). But-for causation “is established whenever a particular outcome would not have happened ‘but for’ the purported cause.” Gorsuch concludes that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Therefore, his reasoning goes, Title VII’s ban on discrimination “because of … sex” prohibits discrimination on the basis of sexual orientation and transgender status.
But the text of the Equal Protection Clause is very different from the text of Title VII. In particular, the Equal Protection Clause does not contain the phrase “because of … sex” or any similar phrase that adopts a test of but-for causation. The Court, as Tennessee explains (pp. 32-35), “has never taken a but-for approach to equal-protection classifications.” It has, for example, never treated sexual-orientation discrimination as a form of sex discrimination for purposes of the Equal Protection Clause.
Justice Gorsuch’s concurring opinion in Students for Fair Admissions v. Harvard (2023) emphatically rejects but-for causation under the Equal Protection Clause. Gorsuch observes that the phrase “on the ground of” in Title VI is “essentially identical” to the phrase “because of” in Title VII. Under Title VI and Title VII, “it is always unlawful to discriminate among persons even in part because of” the characteristics the laws protect. By contrast, the “such differently worded” Equal Protection Clause “addresses all manner of distinctions between persons.” Far from categorically prohibiting such distinctions (as a but-for test would), the Court has long held that the Equal Protection Clause “implies different degrees of judicial scrutiny for different kinds of classifications.”
In sum, treating discrimination on the basis of transgender status as sex discrimination under the Equal Protection Clause would make a mockery of Bostock’s reasoning and, as Tennessee puts it, “would abrogate decades of equal-protection jurisprudence.”