By now, you’re of course familiar with the Supreme Court’s holding in Bostock v. Clayton County yesterday, which held that LGBTQ people cannot be fired (or be subject to any other adverse employment action) merely for being gay or transgender. It’s worth noting that rarely has the Supreme Court of the United States issued an opinion with such ramifications for professional sports, particularly as it concerns trans athletes.
To understand why we can start with the law. The Supreme Court was interpreting Section 2000e-2 of Title VII of the Civil Rights Act of 1964, which specifically states, “It shall be an unlawful employment practice for an employer
- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or
- (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.”
What the Supreme Court decided yesterday was that “because of such individual’s . . . sex” includes sexual orientation and gender identity. That’s undoubtedly the correct decision; Trump appointee Justice Neil Gorsuch, writing for the majority, noted that “[j]ust as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking. . . . as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”
In the 2019 Baseball Prospectus Annual, I wrote an article titled “What if the First Woman in MLB is Already Here?” That article examined whether a transgender woman could legally be barred from playing for an MLB team. Now, post-Bostock, the answer is absolutely clear: if a player for any professional team were to come out as LGBTQ, the team cannot penalize them legally. If a player on the Dodgers or Lakers were to come out as trans or gender non-conforming tomorrow, the team cannot release them.
A team could try to argue that gender is an example of a bona fide occupational qualification (“BFOQ”). A BFOQ is a very long and obscure way of saying that an employer is allowed to exclude people on the basis of certain criteria, like if those criteria are required to do the job. (Race, it should be noted, can never be a BFOQ). But as I’ve written before for Fangraphs and elsewhere, it’s highly unlikely that gender is a BFOQ for playing professional sports, especially baseball. In the wake of Bostock, we’re likely to see at least some cases testing whether being cisgender (not trans) or straight is or can ever be a BFOQ, but given the shape of BFOQ jurisprudence that seems highly doubtful.
In other words, Bostock could be a watershed moment for queer representation in professional sports. First, a player afraid of losing their contract if they came out as trans, be they male, female, non-binary, or agender, has far less to worry about. Bostock leaves very little room for a team to argue that trans people cannot or should not be a part of a professional sports team on the basis of their gender identity, and that’s undeniably a good thing. A team is now legally required to not interfere with the gender identity of its players, and as such we are closer than we have ever been to a trans athlete in a major sports league.
Second, Bostock paves the way for legal challenges to the toxic masculinity inherent in too many men’s professional sports. There is a type of Title VII case called a “hostile environment” claim, which arises when people in a workplace act with a pattern or practice of behaviors or speech which discriminates on the basis of one of the protected classes in Title VII. After Bostock, the use of homophobic or transphobic slurs on a regular basis by players or coaches is certainly illegal, and the recently-banned practice of requiring MLB rookies to dress as women likely is as well. In other words, clubhouses hostile to LGBTQ players or coaches are now no longer merely morally reprehensible; they are also likely legally actionable as well. If a player cannot come out publicly because of the culture in their clubhouse or organization, that culture is now unlawful and can be legally redressed.
All of this said, the full shape of the new law enunciated by Bostock is likely to take several years to develop as Courts of Appeal across the country apply its holding to new cases. Nevertheless, for the first time, no professional athlete will play in a state where it is legal to be released for being gay or transgender, irrespective of where their team travels.