Perspective: The Supreme Court must clean up its mess

As a mom, one of the most frustrating things is when my kids make a mess and then just leave it. “You made the mess, you clean it up!” is a mantra of moms everywhere. It’s especially annoying when the mess is in a room the whole family uses; stepping on plastic building blocks in bare feet is flat-out painful.

So as a mom, I’d like to tell the U.S. Supreme Court that it’s high time they picked up their mess, because last week the justices irresponsibly refused to do that — for the third time.

The court announced Jan. 15 it would not take up an appeal by the school district of Martinsville, Indiana. In that case, a student identified by the initials A.C. wished to use bathrooms corresponding to their gender identity and not their sex, which violated district policy. The 7th Circuit Court of Appeals upheld A.C.’s position, prompting the district to appeal, futilely, to the Supreme Court.

What makes the situation even more pressing is that in another case, the 11th Circuit Court of Appeals upheld the opposite view in similar circumstances. We now have a context in which the same school policy is legal in some parts of the United States and illegal in others. This is precisely what the U.S. Supreme Court is for — to prevent these types of interstate inconsistencies where federal anti-discrimination law is applicable.

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This isn’t the first time that the Supreme Court has treated this issue as radioactive and backed away. In the years since Bostock v. Clayton County, a Georgia case decided by the Supreme Court in 2020, there have been at least two other attempts to insist the Supreme Court clarify what it meant in that decision: a Virginia case in 2021 and a West Virginia case in 2023. In each case, the Supreme Court refused to clean up the mess it created in Bostock by refusing to hear these cases.

In the Bostock case (which was decided concurrently with two other similar cases), the court established that an employee could not be dismissed on the basis of their sexual orientation or gender identity because federal law (Title VII) bars employment discrimination on the basis of sex, among other protected characteristics. In the 6-3 decision, the court decided that sex was a part of what sexual orientation and gender identity meant, and therefore a dismissal could be viewed as violating federal law.

Justice Neil Gorsuch, writing for the majority, created the mess with this paragraph:

“(Some) worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today. But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today. Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual ‘because of such individual’s sex.’ ... Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.”

Well, we’ve had several “future cases” now, and the Supreme Court has ducked them all. In Bostock, the court refused to “prejudge” these important matters of single-sex bathrooms and sports until it had an actual case before it that could be tried under “adversarial testing.” The court now has no excuse, and the contradictory rulings of the various federal circuit courts have made the situation untenable for the nation. The court owes the country clarity on these matters, for much is at stake.

It’s possible the court is reticent because it wants to avoid another election-affecting bomb blast. Its decision in the Dobbs case, which overturned a federal right to abortion, has been widely viewed as having significantly affected the elections of 2022. The 2024 elections are even more momentous.

And so it looks like the nation must languish for at least another year stepping on the plastic building blocks that the Supreme Court has irresponsibly strewn around. In his dissent to the Bostock decision, Justice Samuel Alito put it best when he penned:

“(T)he position that the Court now adopts will threaten freedom of religion, freedom of speech, and personal privacy and safety. No one should think that the Court’s decision represents an unalloyed victory for individual liberty ... Although the Court does not want to think about the consequences of its decision, we will not be able to avoid those issues for long. The entire Federal Judiciary will be mired for years in disputes about the reach of the Court’s reasoning.”

I’d say Alito nailed it. SCOTUS, pick up your mess.

Valerie M. Hudson is a university distinguished professor at the Bush School of Government and Public Service at Texas A&M University and a Deseret News contributor. Her views are her own.