Matt Kacsmaryk shouldn't be a judge

He doesn't want to be a judge. He wants to run a right-wing advocacy group. And, for paid subscribers: Closing my tabs.

U.S. District Judge Matthew Kacsmaryk — the judge who tried to ban mifepristone nationwide in 2023 — issued a ruling this past week vacating parts of a federal anti-discrimination policy nationwide.

He did so because he doesn’t appear to believe transgender people are real and he believes that he is authorized to rule accordingly. In order to do so, Kacsmaryk all but ignored a key 2020 ruling of the U.S. Supreme Court.

Kacsmaryk, a Trump appointee, represents the anti-queer extremism of this moment, and his May 15 ruling in State of Texas and The Heritage Foundation v. Equal Employment Opportunity Commission is exactly what you would think Kacsmaryk’s ruling in a case with that name would be.

The EEOC, which is charged by federal law with enforcing Title VII of the Civil Rights Act of 1964, issued “Enforcement Guidance” in 2024 setting forth its understanding of the state of the law under Title VII. As Kacsmaryk put it:

Relevant here, the Enforcement Guidance defines "sex" as "pregnancy, childbirth, and related medical conditions' and sexual orientation and gender identity." … And it concludes that "sex-based harassment includes harassment based on sexual orientation or gender identity, including how that identity is expressed." … Specifically, sexual harassment includes "repeated and intentional use of a name or pronoun inconsistent with the individual's known gender identity (misgendering)" and "denial of access to a bathroom or other sex-segregated facility consistent with the individual's gender identity."

Texas and Heritage sued because they want to be able to discriminate against transgender people in the workplace. That’s what they want, plain and simple. From Kacsmaryk:

[T]he Texas Department of Agriculture's current employee dress policy states that "[e]mployees are expected to comply with this dress code in a manner consistent with their biological gender." …

Heritage's employee policies currently require employees to "come to work in professional dress, consistent with the mission ... and purpose of Heritage" which has always meant that "employees have dressed in a manner traditionally befitting their biological sex.”

Making clear that he is operating in his own world, Kacsmaryk doesn’t acknowledge the existence of trans people at all at several points throughout the opinion — going so far as to inaccurately describe the EEOC guidance where it does reference trans people to keep his charade going. Here is Kacsmaryk describing the guidance:

Contrary to that description, here is the first “example” he listed in the actual guidance:

And, here is the second:

When that’s the starting point, the end obviously isn’t going to be just. And, here, it is not.

If addressing Title VII and the coverage it provides for workers facing anti-trans treatment were before a court, one would think that a Supreme Court decision addressing Title VII and the coverage it provides for workers facing anti-trans treatment would be relevant.

If your case was before Kacsmaryk, you would be wrong.

Bostock v. Clayton County, the 2020 Supreme Court decision at issue, was a 6-3 ruling, and Justice Neil Gorsuch wrote the opinion for the court. In key part, he explained:

That clear language turn into something else when it enters the world in which Kacsmaryk operates.

“The only question Bostock decided was whether ‘fir[ing] someone simply for being homosexual or transgender’ violated Title VII's prohibition on sex discrimination,” Kacsmaryk insisted. “[T]he Supreme Court was clear: its holding was narrow and expressly cabined to the question presented in Bostock.” This is so, he continued, because the Supreme Court made clear it was not deciding issues that were not before the court in Bostock. This, however, is what courts do. Under the Constitution, moreover, that is all that federal courts can do — decide actual “cases” or “controversies.“

Not in Kacsmaryk’s hands. Not only is Bostock apparently irrelevant to anything else, but, instead, any non-decisions in Bostock should be read as decisions against the reasoning in Bostock being applied to anything else.

“[T]he Enforcement Guidance contravenes Title VII by expanding the definition of ‘sex’ beyond the biological binary and requiring employers to accommodate an employee's dress, bathroom, or pronoun requests,“ Kacsmaryk wrote.

Now, we’ve seen this shoddy non-reasoning before — when it came to how courts considered the sex discrimination language in Title IX of the Education Amendments Act of 1972 — and it was bad then. But doing so within the Title VII context is — well, whatever it is, it is not judging. (Not to be ignored, in both situations, though the challenges and court opinions are focused on the anti-trans arguments, the plaintiffs go after and judges cut protections based on “sexual orientation” — also a part of Bostock — as well.)

Kacsmaryk would like us to believe that the Supreme Court ruled that Title VII bans employers from firing trans workers but that those same employers can refuse to acknowledge those trans workers as trans — subjecting them to non-stop, dehumanizing abuse in the workplace.

That is literally his argument, and he simply excised those parts of the Title VII guidance from the extensive document:

Because those are “contrary to law,“ per Kacsmaryk, “[t]herefore, the above provisions of the 2024 Guidance are VACATED.“

Let’s go back to Gorsuch’s opinion for the court in Bostock:

According to Kacsmaryk, “the law’s demands” include a prohibition on firing trans people “for traits or actions it would not have questioned in members of a different sex,” but “the law’s demands“ are different when it comes to a trans woman wearing a dress, being called “she,” or using the women’s restroom.

One final note. You might ask why Kacsmaryk is even bothering with this given the anti-trans position and actions of the Trump administration. Well, the EEOC lacks a quorum currently — because President Donald Trump fired two Democratic appointees — and, as such, it cannot rescind the Guidance Documents itself. So, in addition to ignoring the Supreme Court, Kacsmaryk is acting to help the short-staffed EEOC to advance Acting Chair Andrea Lucas’s anti-trans agenda.

In a properly functioning judiciary, higher courts would quickly and directly address this refusal to acknowledge the clear import of a Supreme Court decision.

But, in our judicial system, Kacsmaryk still hasn’t dismissed the mifepristone challenge — a case in which this Supreme Court held unanimously nearly a year ago that the original plaintiffs in the case lacked standing to bring the lawsuit.

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Closing my tabs

This Sunday, these are the tabs I am closing: