At a pair of arguments in 2019 about employment discrimination against gay and transgender workers, the justices could not stop talking about bathrooms. In all, five justices explored questions related to who may use which facilities, though bathrooms did not figure in the cases before them.
“Let’s not avoid the difficult issue,” said Justice Sonia Sotomayor, a member of the court’s liberal wing, posing a hypothetical question: “You have a transgender person who rightly is identifying as a woman and wants to use the women’s bathroom.”
She added: “There are other women who are made uncomfortable, and not merely uncomfortable, but who would feel intruded upon if someone who still had male characteristics walked into their bathroom. That’s why we have different bathrooms. So the hard question is: How do we deal with that?”
David D. Cole, a lawyer with the American Civil Liberties Union representing a transgender woman, seemed puzzled.
“That is a question, Justice Sotomayor,” he said. “It is not the question in this case.”
The argument also touched on sports, religion and dress codes, and it suggested that many justices found it hard to disentangle the legal question before them from related ones.
Justice Neil M. Gorsuch, for instance, asked whether a ruling in favor of Mr. Cole’s client would do away with sex-specific dress codes. Mr. Cole said no.
“There are transgender male lawyers in this courtroom following the male dress code and going to the men’s room,” he said, “and the court’s dress code and sex-segregated restrooms have not fallen.”
When the court issued its decision, which sided with gay and transgender workers, Justice Gorsuch’s majority opinion said it was tightly focused on employment discrimination.
“We do not purport to address bathrooms, locker rooms or anything else of the kind,” he wrote, adding that those “are questions for future cases, not these.”
In dissent, Justice Samuel A. Alito Jr. chastised the majority for kicking the can down the road.
“The court may wish to avoid this subject,” he wrote, “but it is a matter of concern to many people who are reticent about disrobing or using toilet facilities in the presence of individuals whom they regard as members of the opposite sex.”
In cases that reached the court on what critics call its shadow docket, the justices have ruled for a transgender prisoner seeking surgery and a transgender girl who sought to compete on the girls’ cross-country and track teams at her middle school in West Virginia. Justice Alito and Clarence Thomas dissented in both cases.
Those two justices also dissented in 2021 when the court turned down an appeal from a ruling in favor of a transgender boy in Virginia who wanted to use the boys’ bathroom at his high school.