Bostock v. Clayton County and Its Expansion of Sexual Discrimination to Include Discrimination against Persons for Sexual Orientation and Gender Identity

Insights Bostock v. Clayton County and Its Expansion of Sexual Discrimination to Include Discrimination against Persons for Sexual Orientation and Gender Identity John R. Mussman · July 14, 2021

Bostock v. Clayton County: The Expansion of “Sexual Discrimination” to Include Discrimination against Persons for Sexual Orientation and Gender Identity

Authored by John Mussman and Daryl Jackson 

In June, 2020, the United States Supreme Court ruled in Bostock v. Clayton County that the prohibition against discrimination on the basis of sex in Title VII of the Civil Rights Act includes discrimination based on sexual orientation and gender identity.[1] Writing for the Court, Justice Gorsuch agreed that “homosexuality and transgender status are distinct concepts from sex,” but that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”[2]

Bostock addressed discrimination only under federal employment law, specifically, Section VII of the Civil Rights Act of 1964.  Nonetheless, since his inauguration on January 20, 2021, President Biden and his Cabinet appointees have issued Executive Orders and launched rulemaking that have applied the rationale of Bostock to a broad range of federal statutes and regulations, including credit, housing and health care.

Bostock has also been applied by both federal and state courts to affirm claims alleging discrimination against gay and transgender persons under constitutional equal protection and due process theory, and under both federal and state statutes.  Several courts of appeals have cited Bostock to sustain claims under Title IX of the Education Amendments of 1972 against public school rules concerning transgender students’ use of restrooms.

Finally, courts have also begun to impose requirements on claims tracking Bostock.  For instance, claims have been dismissed for failure to plead “sufficient acts” that could plausibly be inferred to establish discrimination.  Another case was remanded to a district court to determine whether the record proved that the defendant school district actions reflected “deliberate indifference” to the bullying of gay or transgender students.

Rulemaking Under Bostock Since Biden’s Inauguration

President Biden and his Cabinet have issued executive orders and conducted rulemaking that extend the protections recognized in Bostock to other statutes outside the employment context.

Executive Order 13988. On the day he was inaugurated on January 20, 2021, President Biden signed an executive order directing all federal agencies to enforce federal laws prohibiting discrimination based on gender identity and sexual orientation.[3]  Biden cited Bostock and specifically directed its implementation by federal enforcement agencies.

FHA Enforcement.  On February 11, 2021, HUD announced it would begin to investigate gender identity and sexual orientation discrimination in Fair Housing Act claims commencing as of January 20, 2021.[4]

ECOA and Regulation B. On March 9, 2021, the CFPB extended Bostock to the Equal Credit Opportunity Act through an interpretive rule to clarify how the CFPB will apply Regulation B when implementing credit applicant protections.  The interpretive rule makes clear that under Regulation B, discrimination based on “sex” includes discrimination based on sexual orientation and gender identity.[5]

HUD Equal Access Rule.  On April 22, 2021, HUD Secretary Marcia Fudge announced the withdrawal of a proposed Trump Administration rule that she claimed would have weakened the Equal Access Rule covering HUD’s Office of Consumer Planning programs, shelters and other buildings, facilities, services and accommodations as it affected “transgender and gender non-conforming people.”[6]

Health Care: Discrimination under the Affordable Care Act (ACA).  On May 25, 2021, the Department of Health and Human Services announced that it would interpret and enforce the antidiscrimination provisions of the ACA, to prohibit discrimination on the basis of sexual orientation and gender identity.[7]

School Restrooms: Grimm v. Gloucester County School Board[8]

On June 28, 2021, the Supreme Court denied certiorari in Grimm, allowing to stand a Fourth Circuit decision applying Bostock to Title IX of the Education Act Amendments of 1972.  Gavin Grimm, a transgender high school student, had claimed that Gloucester County School Board rules violated the protections afforded him by the Equal Protection Clause and Title IX by prohibiting Grimm from using the boys’ restroom and requiring him to use a separate restroom.  The Fourth Circuit agreed.

In Bostock, Justice Gorsuch had explicitly refused “to address bathrooms, locker rooms, or anything else of the kind.”[9]  But both the Fourth Circuit in Grimm and the Eleventh Circuit in Adams v. School Board of St. Johns County[10] have struck down school rules restricting transgender students from using restrooms corresponding to their gender identity, relying in part on Bostock.

In Adams, the Eleventh Circuit upheld challenges to restroom rules under both the Fourteenth Amendment and Title IX, stating “Bostock has great import for [the transgender student’s] Title IX claim. Although Title VII and Title IX are separate substantive provisions of the Civil Rights Act of 1964, both titles prohibit discrimination against individuals on the basis of sex.”[11]

Even prior to Bostock, Courts of Appeals in the Third and Ninth Circuits had rejected challenges by parents, students and various organizations to high school policies permitting transgender students to use restrooms and locker rooms that matched their gender identity, rather than their biological sex assigned at birth.[12]  These appellate decisions helped establish what Justice Floyd described in Grimm as a “growing consensus of courts” that “Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender.”[13]

Further Judicial Developments Based on Bostock and Limitations

Both federal and state courts have given Bostock expansive application in federal and state constitutional and statutory claims. But courts have begun to recognize limitations on such claims based on the adequacy of the pleadings and causality.

Application of Bostock to Due Process and Equal Protection Analysis in Constitutional Claims

Illustrative of Bostock’s broad application by courts to federal and state constitutional challenges, the Court of Appeals of North Carolina in M.E. v. T.J.[14] applied Bostock to claims under both the federal and North Carolina constitutions.  A North Carolina statute did not permit the issuance of a strong domestic violence protective order (DVPO) arising from the break-up of a same-sex “dating relationship,” although a DVPO may have been forthcoming had the couple not been of the same gender.  The court of appeals applied the Due Process and Equal Protection clauses to strike down the provision of the North Carolina statute requiring that the relationship be between persons of the opposite gender, reasoning that Bostock’s inclusion of gay and transgender persons in the protection again discrimination based on sex logically applied to federal and state constitutional due process and equal protection analysis.[15]

Emerging Requirements on Bostock Claims

Courts analyzing discrimination claims based on sexual orientation and gender identity have already begun to apply procedural and legal requirements similar to those imposed on other discrimination claims.  For instance, courts have required that 1) the pleadings contain allegations that could reasonably be inferred to demonstrate discrimination, and 2) plaintiffs prove the school’s liability for student-on-student harassment with a record reflecting “deliberate indifference”:

  • Pleadings.  The complaint must allege “sufficient facts on all of the ultimate elements of a disparate treatment claim to make” the conclusion of discrimination plausible; there must be more than a conclusory allegation of discrimination.  In Olivarez v. T-mobile USA, Incorporated,[16] the Fifth Circuit agreed that while discrimination based on sexual orientation or gender identity constitutes a cognizable form of discrimination under Title VII, the plaintiff had failed to “allege facts sufficient to support an inference of transgender discrimination — that is, that [the defendant] would have behaved differently toward an employee with a different gender identity.”
  • Deliberate Indifference.  To establish liability, the factual record must demonstrate that the defendant actually caused the alleged injury and that each element of the discrimination claim be proven.  In Clark County School District v. Bryan,[17] the Nevada Supreme Court stated that Title IX claims of homosexual or transgender individuals could be based on a school district’s tolerating bullying such as “sexual slurs, insults, and physical assaults by classmates,” but that sustaining such a claim for student-on-student harassment requires that the school district act with “deliberate indifference.”  The school had allegedly violated a state procedural statute in its response to the parental complaints of harassment. Although such statutory noncompliance might be part of a court’s analysis, here it did not constitute per se “deliberate indifference.” Accordingly, the supreme court remanded the case to make additional findings as to whether the record demonstrated the “deliberate indifference” element necessary to sustain a Title IX claim.

John Mussman is a partner at Rimon Law, focusing on banking and financial services. He represents national and state banks, mortgage lenders, fintech companies and other financial service providers, focusing particularly on commercial and consumer credit law and regulatory compliance. He also represents bank affiliates and non-bank players in the commercial and consumer credit space. Read more here. 

Daryl Jackson is a 2023 juris doctoral candidate at University of San Diego School of Law, focusing on real estate and corporate law. He received a Bachelor of Arts summa cum laude in Philosophy from University of Colorado, Colorado Springs in 2018. Mr. Jackson is currently a legal intern at Rimon Law, where he assists in projects including cross-border transactions, criminal litigation, corporate and real estate documentation and due diligence, and research and writing in banking, fair lending and housing. His activities include membership in the American Bar Association, the San Diego County Bar Association, the National Black Law Students Association, the Asian Pacific American Law Students Association and the Real Estate and Land Use Society.  Read more here. 

Attorney Advertising. This document is not intended to be and is not considered to be legal advice. Transmission of this document is not intended to create, and receipt does not establish an attorney-client relationship.

[1] Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731 (2020).

[2] Bostock at 1747.

[3] 3 CFR Executive Order 13988, Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation, January 20, 2021.

[4] U.S. Dep’t of Hous. and Urban Dev., “Implementation of Executive Order 13988 on the Enforcement of the Fair Housing Act,” Feb. 11, 2021 (Memorandum).

[5] Equal Credit Opportunity (Regulation B); Discrimination on the Bases of Sexual Orientation and Gender Identity, (March 9, 2021).

[6] U.S. Dep’t of Housing. and Urban Dev., “HUD Withdraws Proposed Rule, Reaffirms Its Commitment to Equal Access to Housing, Shelters, and Other Services Regardless of Gender Identity,” Apr. 22, 2021 (press release).

[7] Department of Health and Human Services, Notification of Interpretation and Enforcement of Section 1557 of the Affordable Care Act and Title IX of the Education Amendments of 1972, 86 Fed. Reg. 27984-02, 45 CFR Parts 86 and 92, May 25, 2021.  The May 25, 2021, rulemaking specifically cited Bostock. Note that the Trump administration’s original, contrary rulemaking had been ordered halted by at least one federal court as “arbitrary and capricious” in light of BostockWalker v. Azar, 480 F.Supp.3d 417 (E.D. N.Y. 2020).

[8] Grimm v. Gloucester Cty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020), as amended (Aug. 28, 2020), reh’g en banc denied, 976 F.3d 399 (4th Cir. 2020).

[9] Bostock at 1753.

[10] Adams v. Sch. Bd. of St. Johns Cty., 968 F.3d 1286, 1305 (11th Cir. 2020), petition for reh’g en banc pending, No. 18-13592 (11th Cir. Aug. 28, 2020).

[11] Id., 968 F.3d at 1305.

[12] Doe v. Boyertown Area School District, 897 F.3d 518 (3rd Cir. July 26, 2018); PARENTS FOR PRIVACY v. Barr, 949 F3d 1210 (9th Cir. Feb 12, 2020).

[13] Grimm, 972 F.3d at 593.

[14] M.E. v. T.J., 854 S.E.2d 74 (N.C. Ct. App. 2020).

[16] 997 F.3d 595 (5th Cir. May 14, 2021).

[17] 478 P.3d 344 (Nev. 2020).