By Joe Sullivan
In June 2020, the Supreme Court extended protections under Title VII of the Civil Rights Act to LGBTQ Americans in Bostock v. Clayton County, Georgia. This historic decision presents the LGBTQ community with the opportunity to claim rights under a wide range of laws. This Note will consider implications of the Supreme Court’s recent ruling in Bostock on future challenges to transgender health care discrimination by employers. Defining “sex” as including “sexual orientation” has the potential to make great progress towards ending trans health care discrimination. The Religious Freedom Restoration Act (RFRA), however, stands in the way as a formidable obstacle. RFRA allows corporations to engage in conduct that would otherwise be unlawful, if those laws conflict with their religious beliefs. Unless those laws further a compelling state interest in the least restrictive manner, RFRA provides a loophole. Closely held religious corporations are still able to employ a RFRA-based defense against Title VII claims, narrowing the scope of Title VII rights.
In Part I, this Note provides a background of the current state of trans health care coverage denial in the United States and notes the inherent conflicts between RFRA and Title VII. In Part II, it provides an explanation of the three cases which were consolidated by the Court in Bostock. Part III then analyzes Bostock’s majority opinion and Justice Alito’s dissent to highlight the uncertainty left in the wake of Bostock. Next, Part IV examines scholars’ optimism that Harris Funeral Homes is a guide for claiming future LGBTQ rights. Finally, Part V argues instead that Harris Funeral Homes is a weak tool to use for future litigation, concluding that a legislative solution can best secure trans health care rights.