Take the court’s recent 5–4 decision, for example. With the exception of Justice Neil Gorsuch, who penned Bostock, all the other conservative justices, including Chief Justice John Roberts, who joined Gorsuch in Bostock, affirmed the blocking of the entire Title IX rule by district courts in Louisiana and Kentucky. This latest ruling is the culmination of a line of cases in which red states and conservative advocacy groups, like the Alliance Defending Freedom, argue that because Bostockwas decided under Title VII to protect employees, it cannot be used to protect LGBTQ+ students under Title IX.

In a similar battlefield focused on health care, red states have attacked Bostock to prevent its reasoning from protecting trans minors’ access to treatments that are available to cisgender adolescents. When the minors, their parents, and supportive doctors sought preliminary injunctions against bans on gender-affirming care, they temporarily won in many district courts that found that the bans were likely unconstitutional by applying Bostock to the equal protection clause’s broad prohibition on discrimination. However, a conservative majority of the U.S. Court of Appeals for the 6^thCircuit lifted those injunctions, holding that Bostockdoes not apply outside Title VII and thus is “irrelevant” to the interpretation of the equal protection clause. The case, L.W. v. Skrmetti, was recently taken up by the Supreme Court and will be heard in its 2024–25 term, probably before any new administration is in place.

Likewise, still in the health care trenches, lawsuits have been filed to prevent another of the Biden administration’s rules protecting LGBTQ+ people from going into effect. This rule was set by the U.S. Department of Health and Human Services under the nondiscrimination provision of the Affordable Care Act, demanding—based on Bostock­—that medical providers avoid discriminating against LGBTQ+ patients. In response, the ADF, which is one of the chief groups behind Project 2025, launched litigation to block the rule, recently winning nationwide and statewide preliminary injunctions issued on the same day by Mississippi and Florida courts. Again, the prevailing argument was that Bostock had no life outside Title VII.

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Remarkably, a wave of litigation is now rising to castrate Bostock even within Title VII. In this battleground, Project 2025’s exact words matter, and employers are now arguing that they, too, can discriminate as long as they not do that in the narrow context of “hiring and firing.” For example, in Texas, the group leading Project 2025, the Heritage Foundation, attacks (in the courtroom of a far-right judge) Bostock-based guidance to employers by the Equal Employment Opportunity Commission. Similarly, the ADF represents a group called the Christian Employers Alliance, arguing at the U.S. Court of Appeals for the 9^thCircuit that they are allowed to deny employees health care coverage based on their gender identity because deprivation of needed gender-affirming care falls outside “hiring and firing.” And earlier this month, the conservative U.S. Court of Appeals for the 11^thCircuit agreed to vacate and reconsider en banc its former 2–1 decision that applied Bostock and held that an employer who prevented such care to a transgender employee engaged in unlawful discrimination.

Although candidates on the campaign trail debate the future impact of Project 2025, much of the damage it orders is already happening in a war in the courts that seeks to hollow Bostock of any meaning.

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