Wingnut Texas Judge Overrules SCOTUS Trans Decision Because YOLO

Judge Matthew Kacsmaryk is at it again.

Mitch McConnell and Leonard Leo parked the conservative wingnut in a single-judge district in Amarillo for the express purpose of allowing conservatives to order up injunctions blocking President Biden’s executive orders. That was back when nationwide injunctions were good, of course. But now he’s got a new task: turning President Trump’s executive orders into law.

Yesterday he purported to operationalize Trump’s anti-trans executive orders by overturning Bostock v. Clayton County, the 2020 Supreme Court case ruling that it was illegal to discriminate against gay or trans people in the workplace under Title VII.

Judge Kacsmaryk didn’t say he was overturning Bostock, which would be a weird thing for a district court judge to do. Instead he differentiated the case brought by Texas and the Heritage foundation challenging EEOC protections for trans employees thusly:

The Guidance states that it does not attempt to “impose new legal obligations on employers with respect to any aspect of workplace harassment law, including gender identity discrimination.” But the Guidance
then admits that Bostock is its basis for all gender identity-related employment rules. And although it admits that Bostock addressed only the termination of transgender or homosexual persons, it boldly states that “the EEOC must sometimes take a position on whether an alleged type of conduct violates Title VII even in the absence of binding Supreme Court precedent.” Thus, it finds that allowing a transgender or homosexual employee to be “harassed or otherwise discriminated against in the terms and conditions of employment based on those same characteristics” would be “inconsistent” with Bostock’s holding and would create “textually unsupported asymmetry.” Accordingly—although the Enforcement Guidance explicitly recognizes that no “binding Supreme Court precedent” underpins its actions—it determines that Bostock should be extended to bar “harassment” based on gender identity. Thus, the Enforcement Guidance itself acknowledges that it more than “summarizes” Title VII case law. Instead, it fundamentally expands Title VII to include harassment based on gender identity.

That’s right. He says Bostock only made it illegal to fire someone for being trans. The Court didn’t say employers had to use appropriate pronouns or let trans people pee at work or wear clothes corresponding to their gender identity.

The technical term for that is bullshit.

In the 6-3 opinion, Justice Gorsuch wrote “an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.” The opinion makes it very clear that it bars discrimination, not just termination: “For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex.”

And even though Bostock clearly states that “sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees,” Kacsmaryk insists that there is no precedent for the EEOC’s “metastasized definition of ‘sex.'”

The trial judge purported to invalidate EEOC guidance mandating that employers not discriminate against trans employees — although presumably they still can’t be fired. And since the president decreed that discrimination is now the law of the land, the EEOC and DOJ have indicated they will not appeal. The administration will make an exception to the NO MORE NATIONWIDE INJUNCTIONS rule, just this once.

Stare decisis FTW.

State of Texas v. Equal Employment Opportunity Commission [Docket via Court Listener]

Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.

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