Cases & Developments

Opinion Affirming the Judgment of the United States Court of Appeals for the Sixth
Circuit. Plaintiffs, several transgender teenagers, their parents, and a doctor challenged Tennessee Senate Bill 1 (SB1) under the Equal Protection Clause of the Fourteenth Amendment, alleging that the law discriminates
on the basis of sex because it bans certain treatments only when they are used to support gender transition, while permitting the same treatments for other medical purposes. SB1 prohibits all medical treatments
intended to help a minor identify with gender inconsistent with their sex assigned at birth, or, to alleviate distress arising from the discordance. The District Court held in plaintiffs favor, finding that transgender
individuals are a quasi-suspect class, as such the SB1 likely does violate the Equal Protection Clause, and issued a preliminary injunction blocking enforcement of the law. However, the Sixth Circuit reversed the
District Court’s ruling, upholding the law and applying a “rational basis” review. Plaintiffs contend that this was legal error, and because SB1’s classification is based on sex, it should
be subject to strict scrutiny rather than the rational basis review. Plaintiffs relied in part on Bostock v. Clayton County, contending that the law’s discriminatory effects on transgender minors
trigger constitutional protections beyond what rational basis review allows. Upon granting certiorari, the Supreme Court was charged with answering whether SB1 violates the Equal Protection Clause of the Fourteenth
Amendment. In a 6-3 decision, the Court upheld the Sixth Circuit’s holding that SB1 is subject to a rational basis review and does not violate the Equal Protection Clause. While plaintiffs argue that SB1 is based
on “sex-based classifications” and calls for strict scrutiny review, the Court found in the contrary and reasoned that SB1 “prohibits healthcare providers from administering puberty blockers and
hormones to minors for certain medical uses, regardless of a minor’s sex.” The Court maintains that SB1 is incorporated by the classifications of age and medical use, but not sex. The
Court acknowledged that SB1 makes reference to sex, but states that “the Court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny. And such an approach would be especially
inappropriate in the medical context, where some treatments and procedures are uniquely bound up in sex.” In addressing plaintiffs’ citation to Bostock, the Court stated that it had “not
yet considered whether Bostock’s reasoning reaches beyond the Title VII context, and [it] need not do so here.” The Court additionally rejected plaintiffs’ allegation and the District
Court’s holding that the law discriminates on transgender people as a quasi-suspect class, noting that the Supreme Court has never held that transgender people are a suspect or quasi-suspect class. The Court
further noted that “SB1 does not exclude any individual from medical treatments on the basis of transgender status. Rather, it removes one set of diagnoses—gender dysphoria, gender identity disorder,
and gender incongruence—from the range of treatable conditions.” In response to plaintiffs’ argument that SB1 “enforces a government preference that people conform to expectations about their
sex” the Court said that the verbiage reflects the state’s “legitimate, substantial, and compelling interest in protecting minors from physical and emotional harm” and plaintiffs have failed
to acknowledge “the prohibited medical treatments are experimental, can lead to later regret, and are associated with harmful—and sometimes irreversible—risks.

Memorandum Opinion denying Defendant’s Motion to Dismiss. Plaintiff, a transgender female and former Liberty University information technology services employee, sued the University alleging sex-based employment discrimination in violation of Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e et seq. when she was terminated after her male to female transition. The University moved to dismiss Plaintiff’s complaint based on: (1) Sections 702 and 703 of Title VII; (2) the Religion Freedom Restoration Act (“RFRA”); (3) the ministerial exception; (4) the First Amendment freedom of expressive association; and (5) the ecclesiastical abstention doctrine. First, the court found that the University’s termination of Plaintiff did not qualify as an employment decision made on the basis “of a particular religion” that is exempted from Title VII under Sections 702 and 703 and concluded that alleged discrimination on the basis of transgender status is sex discrimination, even if religiously motivated. Second, the court adopted the majority rule that the plain language of RFRA applies to conduct by a governmental authority, and the EEOC’s issuance of a right to sue letter to Plaintiff does not otherwise convert a private party lawsuit into government action. Third, the court reasoned that although religious employers enjoy wide latitude as to “employees who[] hold a spiritual role and whose religious beliefs may press upon the faithful” the evidence at this stage of litigation did not support that Plaintiff’s role as an IT professional qualified for application of the ministerial exception as an affirmative defense. Fourth, the court agreed that “Liberty engages in protected First Amendment activity,” but found “any burden imposed by Title VII on Liberty’s expressive interest is minimal, such that rational basis review is satisfied, … Title VII stands constitutionally sound … [and] at this stage of litigation, Liberty cannot claim any expressive association defense to Title VII liability.” Finally, the court found the ecclesiastical doctrine inapplicable, rejecting the University’s position that Plaintiff’s complaint raises questions “concerning Liberty University’s interpretation and application of Scripture,” reasoning that the court was narrowly tasked with considering if Title VII “prohibits a religious institution from firing a transgender person, not whether a religious institution … has properly interpreted its religious doctrine when determining that a transgender person violates religious law.”