Law Professors: SCOTUS Ruling Puts Idaho Transgender Athlete Law In Jeopardy

Jun 15, 2020

Monday’s U.S. Supreme Court ruling has delivered another blow to a pair of controversial laws set to take effect next month that roll back transgender rights in Idaho.

In a 6-3 decision, the nation’s highest court found that discriminating against someone because of their sexual orientation or gender identity violates part of the 1964 Civil Rights Act barring such action based on someone’s sex.

The case merged separate claims of discrimination into one docket. They involve a man who was fired after joining a gay softball team, another man who was fired as a skydiving instructor for coming out as gay and a transgender woman who was fired after she began expressing her gender identity at work.

In each case, their employers admitted they were terminated because of their sexual orientation or gender identity, claiming their employee’s sex had no basis in their decisions.

But that argument held no water for Justice Neil Gorsuch, who wrote the majority opinion.

“Intentionally burning down a neighbor’s house is arson, even if the perpetrator’s ultimate intention (or motivation) is only to improve the view. No less, intentional discrimination based on sex violates [the Civil Rights Act], even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees,” Gorsuch wrote.

In a dissenting opinion, Justices Samuel Alito and Clarence Thomas blasted the ruling as judicial activism.

“A more brazen abuse of our authority to interpret statutes is hard to recall,” they wrote.

Ongoing deliberation in the case was one of the many factors playing into the Idaho Attorney General’s Office’s decision in February to call a bill that bars transgender girls and women from playing on sports teams that align with their gender identity “constitutionally problematic.”

Idaho Attorney General Lawrence Wasden, along with 14 other attorneys general, weighed in on this Supreme Court case last year, urging the justices to interpret the law literally: discrimination based on someone’s sex does not include their sexual orientation or gender identity.

The transgender athlete law, which is set to go into effect in July, is currently facing a lawsuit filed in federal court by the ACLU of Idaho. The group claims it’s unconstitutional for a variety of reasons, including that it violates the section of the Civil Rights Act the U.S. Supreme Court just ruled on.

Another law that will go into effect next month would bar transgender people from changing the sex listed on their birth certificate, despite a federal judge issuing a permanent injunction in 2018 outlawing such categorical bans.

Now that the Supreme Court has ruled that the term ‘sex’ should be interpreted broadly, the state’s chances of winning that lawsuit have dimmed according to Richard Seamon, a constitutional law professor at the University of Idaho College of Law.

“The U.S. Supreme Court seems to have taken that off the table so it does complicate and, I think, make it more difficult to defend the constitutionality of the two Idaho bills,” Seamon said. “It’s very likely to be an uphill battle in both cases.”

The Idaho Attorney General’s Office declined to comment for this story.

While Monday’s court case specifically dealt with employment, Seamon said its interpretation won’t just be limited to that area of the law.

“The court’s decision today is going to support arguments that the concept of sex discrimination should be understood broadly in all of the areas – including public accommodations – where it’s prohibited.”

Shaakirrah Sanders, another University of Idaho constitutional law professor, agreed.

Under the ruling, the burden of proof on whether someone was discriminated against now lies with the accused – not the person bringing the accusation, Sanders said.

“That is a powerful statement that has just sent a ripple through our Equal Protection Clause,” she said.

Sanders is also a board member of the ACLU of Idaho, which filed the suit over the transgender athlete law.

Currently, Idaho has no statewide law barring discrimination based on someone’s sexual orientation or gender identity, though a patchwork of cities has passed such protections.

Legislative pushes to include those provisions in state law have spurred mass protests at the capitol in support of it, with dozens arrested for refusing to leave the House and Senate chambers and other capitol office spaces in the past.

Republicans on the House State Affairs Committee killed a version of a bill in 2015 after three days of emotional testimony.

Outgoing Senate Pro Tem Brent Hill (R-Rexburg) had been working on a compromise proposal with LGBTQ advocates in recent years, but nothing ever surfaced.

Follow James Dawson on Twitter @RadioDawson for more local news.

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