Bostock Protected Transgender Workers. Do Students Have the Same Rights?

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At stake is more than athletics. How the justices frame these cases will shape how schools handle bathrooms, locker rooms, dormitories, and other spaces where gender matters. Idaho’s lead sponsor of its sports ban also pushed through a 2025 bill restricting bathroom access. She said: “I also knew, and said so at the time, that it would be the sports issue that would open it up for all the other issues.”

Bostock v. Clayton County and Its Limits

Bostock involved three people fired from their jobs: a gay county employee in Georgia, a transgender funeral home worker in Michigan, and a skydiving instructor in New York who disclosed his sexual orientation. Each claimed their termination violated the federal law that bans job discrimination, which prohibits discrimination “because of…sex” but says nothing about sexual orientation or gender identity.

Justice Neil Gorsuch’s majority opinion used an approach focused on the exact words of the law. If an employer fires a woman for dating women but wouldn’t fire a man for the same behavior, that employer is treating people differently based on sex. The logic pulled Chief Justice John Roberts into a 6-3 majority alongside the liberal justices.

But Gorsuch was careful. He acknowledged that his reasoning might seem to extend to other federal laws prohibiting sex discrimination—like Title IX, which governs schools. He refused to go there, declining to prejudge questions about bathrooms, locker rooms, or sports.

The Two Cases Before the Court

Becky Pepper-Jackson publicly identified as a girl starting in third grade. She took puberty blockers and began estrogen therapy. When West Virginia passed its categorical ban in 2021, she was entering middle school. Her case invokes both Title IX and equal protection. The Title IX argument tracks Bostock directly: the law prohibits sex discrimination in education using language nearly identical to the employment protections in the federal law. If discriminating against workers based on gender identity violates the employment law, then categorically excluding students should violate Title IX.

The Idaho case raises a constitutional equal protection question the Supreme Court has repeatedly avoided: does gender identity warrant heightened judicial scrutiny?

Gorsuch’s Voting Record Since Bostock

The hope is that the justice who extended protections to LGBTQ workers might do the same for students. But Gorsuch’s voting record since 2020 tells a more complicated story. He joined the conservative majority last June in United States v. Skrmetti, which upheld Tennessee’s ban on gender-affirming medical care for minors.

In Bostock, sex discrimination law directly contradicted the employment action. An employer cannot justify firing someone for being transgender by reference to legitimate business interests. But states argue that sex-separated athletics serve purposes of fairness and safety that employment law doesn’t address. Someone who believes in applying statutory language as written might still conclude that different statutes can reasonably apply differently when their underlying purposes diverge.

The Scientific Evidence

Both sides submit extensive evidence about biology and athletic performance. States emphasize that testosterone-driven male puberty typically produces increased muscle mass, cardiovascular capacity, bone density, and height—advantages that persist in many sports.

Pepper-Jackson’s attorneys counter that she never experienced male puberty. She took puberty blockers, then began estrogen therapy. They argue her case doesn’t involve the athletic advantages states cite—she shouldn’t be excluded categorically without individualized evidence of advantage.

The research on performance after hormone therapy is genuinely mixed. Some studies suggest hormone therapy reduces performance advantages, though the degree varies by sport and individual. Other research emphasizes that certain advantages may persist. Reputable scientists reach different conclusions.

The justices’ job isn’t to resolve the factual disputes. It’s to determine the legal framework for how such decisions get made, who has authority to make them, and if federal law constrains that authority.

Title IX’s History and Interpretation

Title IX’s operative language is brief: “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

For decades, the Department of Education interpreted Title IX to permit sex-segregated athletics as long as schools provided equal opportunities. Pupils competed on teams matching their sex assigned at birth.

The Obama administration issued guidance in May 2016 taking the position that Title IX’s prohibition on sex discrimination extended to gender identity. It recommended allowing students to participate in activities, including athletics, consistent with their gender identity. Multiple states sued, and courts issued preliminary injunctions. The Trump administration withdrew the guidance in February 2017. The Biden administration proposed regulations in 2023 and 2024 that would have prohibited categorical bans and required individualized assessments.

Meanwhile, Republican-led states started passing laws taking the opposite approach. West Virginia followed in 2021. Within a few years, 29 states had enacted similar restrictions.

Equal Protection and Heightened Scrutiny

Under current doctrine, classifications based on sex receive a stricter legal test—states must show the classification substantially relates to an important government interest. Classifications based on race receive the strictest legal test, requiring a compelling interest and narrow tailoring. Other classifications get the most lenient legal test, requiring only that the law be rationally related to a legitimate government interest.

The justices haven’t specified if gender identity alone receives heightened scrutiny. In Skrmetti last June, Chief Justice Roberts characterized the medical care ban not as classifying based on transgender status but as regulating age and medical treatment purpose. This framing allowed the majority to apply the most lenient legal test without deciding if people who are transgender constitute a group that deserves legal protection.

Justice Amy Coney Barrett went further in a concurrence joined by Justice Clarence Thomas. She suggested she knew of no history of discrimination written into law against people who are transgender.

Documented History of Discrimination

Ten scholars filed a legal brief documenting this history after Barrett’s expression of ignorance in Skrmetti. The brief argues that the sports bans represent a new chapter in a long story of government discrimination. It emphasizes that the rapid escalation of legislation targeting people who are transgender—from 18 bills passed in 2021 to 125 passed in 2025—demonstrates an intensifying pattern of official hostility.

Legal doctrine on suspect classifications generally looks to history of discrimination as a factor in determining if courts apply stricter rules. Documented evidence of centuries of state-sponsored discrimination, criminalization, and institutionalization would ordinarily count heavily.

The Shifting Political Context

In February 2025, President Donald Trump signed an executive order directing federal agencies to withdraw funding from schools and states that allow transgender girls to compete on female sports teams. His administration characterized such policies as violations of Title IX—arguing the statute mandates sex-separated sports, not merely permits them.

The NCAA and U.S. Olympic and Paralympic Committee updated their policies to align with the executive order, effectively barring transgender women from women’s competitions. Multiple clinics providing gender-affirming care to youth have reduced or eliminated services, citing Justice Department investigations and threats of federal funding cuts.

Public opinion has shifted since 2020. Polling shows 66 to 69 percent of Americans support bans on transgender girls competing on female sports teams, depending on the poll. Support for restrictions on gender-affirming medical care for minors increased from 46 percent in 2022 to 56 percent in 2025.

In Skrmetti, the majority emphasized supposed scientific uncertainty around gender-affirming care, even as major medical organizations have endorsed such care as evidence-based. Barrett’s suggestion of ignorance about historical discrimination signals receptiveness to arguments that people who are transgender lack the legal status or historical context triggering heightened constitutional protection.

The Scale of the Issue

A research center at UCLA estimates approximately 122,000 teenagers who are transgender participate in American high school sports. Precise numbers are difficult to obtain because not all openly identify in school. The number of transgender girls competing on female teams in states with categorical bans is far smaller.

NCAA President Charlie Baker testified in 2024 that he was aware of fewer than ten athletes who are transgender among the 510,000 college student-athletes governed by the NCAA.

High-profile cases like University of Pennsylvania swimmer Lia Thomas generated national debate. Thomas competed on the men’s team before transitioning, then later on the women’s team. She tied for eighth place in a top-level college swimming championship—a result that became a flashpoint for disputes over fairness and inclusion.

The intense focus on a handful of cases has created a perception, disputed by advocates, that athletes who are transgender are widespread and overwhelmingly dominating female sports. The reality is a small number of students trying to participate in school activities like their peers.

Possible Outcomes

In the most plaintiff-favorable scenario, the justices apply Bostock’s reasoning to Title IX. They hold that categorical exclusion of transgender girls violates sex discrimination law. Gorsuch and Roberts, joined by the three liberal justices, could form a majority on this theory. Such a ruling would require individualized assessment rather than categorical exclusion and potentially extend protections to other areas of education.

A narrow ruling might permit states to maintain sex-separated athletics in principle but require that exclusions not be categorical. They might need to account for individuals who’ve undergone hormone therapy and lack athletic advantages, or at least provide some alternative means of participation.

Conversely, the justices might adopt the framework from Skrmetti, characterizing the laws as regulating athletic classifications or competitive fairness rather than classifying based on transgender status. Under this approach, the most lenient legal test would apply, and the laws would easily survive. Such a ruling would leave Bostock in place for employment while establishing that education differs in its ability to regulate sex-based participation.

Most consequentially, the majority could rule that Title IX permits or mandates sex-separated sports based on biological sex and that doing so doesn’t violate the Equal Protection Clause. The administration’s position goes further, arguing Title IX requires categorical bans. A ruling in this direction would validate all 29 state bans, likely encourage additional restrictions, and potentially undermine equal protection doctrine’s application to gender identity across multiple contexts.

Arguments Presented to the Court

The plaintiffs’ attorneys emphasized Bostock’s straightforward reasoning: Title IX’s language prohibiting sex discrimination is identical to the employment law’s protections. Bostock established that discrimination based on gender identity is discrimination based on sex. Therefore Title IX must prohibit categorical bans. They argued courts shouldn’t abandon settled discrimination law principles simply because the setting is education rather than employment.

They emphasized the categorical nature of the bans. West Virginia and Idaho exclude all transgender girls without individualized assessment, even those who haven’t experienced male puberty and have undergone hormone therapy. For the equal protection claim, they argued the laws rest on overbroad stereotypes about sex, assuming all transgender girls retain male athletic advantages without evidence.

The states’ attorneys argued that nothing in Bostock extended protection beyond the employment contexts. They contended that sports presents a distinct context where biological sex remains legitimately relevant because it correlates with athletic performance. They submitted evidence that testosterone-driven male puberty produces measurable athletic advantages.

They argued that Gorsuch’s caution in Bostock—his refusal to address bathrooms, locker rooms, and sports—signals understanding that sex discrimination law might apply differently in education and athletics contexts. They noted that the most lenient legal test applies to sex-based sports classifications, a principle uncontroversial for decades. The laws easily survive such review by serving the legitimate interest in fair and safe athletic competition.

The administration’s position was uniquely aggressive, arguing not merely that bans are constitutional but that Title IX requires them. The federal government’s lawyer argued that the statute’s history and purpose demonstrate Congress intended to preserve athletic opportunities for girls and women relative to boys and men—a purpose undermined if transgender girls were permitted to compete.

What Comes Next

The justices will issue their decision in five to six months, likely by late June 2026. The ruling will rank among the most consequential decisions on the rights of people who are transgender in American history. It will determine if the logic of Bostock extends to education law and student protections, or if Bostock remains confined to employment.

It will establish if students who are transgender enjoy the same federal protections as other students, or if they occupy a different and more precarious legal status. It will influence how courts interpret federal law across countless other contexts touching the lives of people who are transgender—bathrooms, locker rooms, dormitories, healthcare access, and more.

The path from Bostock’s broad principle to these cases’ resolution isn’t inevitable. The justices have shown greater skepticism toward claims involving the rights of people who are transgender in the past two years than in 2020. Gorsuch has voted with the conservative majority in recent cases denying protections.

Yet the logic underlying Bostock remains powerful. Federal courts that have addressed the sports bans have repeatedly found them likely to violate law. The alternative—establishing that federal law doesn’t protect against gender identity discrimination in education, despite protecting against it in employment—would create a stark and difficult-to-justify distinction.

As Idaho’s ban sponsor made clear, this case was always about more than sports. It was about establishing if states can categorically exclude people who are transgender from public life. The answer will echo through education policy, legal protections, and the lived experiences of youth who are transgender for decades.

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