reporting<\/a> from December 2024.)<\/p>\nHere are four problems with Skrmetti that lurk beneath the surface and might be hard to suss out from the dense and self-important judicial prose.<\/p>\n
Sex! (Now That I\u2019ve Got Your Attention)<\/b><\/p>\n
The good news is that the majority didn\u2019t overturn any old precedents about sex-based constitutional adjudication, which Ginsburg played such a major part in fashioning, first as an advocate for the ACLU before the Court and then as a justice. Skrmetti won\u2019t let the states implement laws that establish different drinking ages for women and men, or that sort of thing. However, the Court did this by defining away the possibility of a sex-based constitutional claim for a transgender young person, their family, or their doctor, even in the case of an egregiously sex-obsessed state law.<\/p>\n
Justice Roberts\u2019s opinion went to great pains to distinguish between the circumstances in this case, which, he claimed, drew lines on the basis of age and medical purpose but not sex, and the old precedents. But this kind of fancy footwork might be employed again to turn sex-based distinctions into something else before people who think their rights have been violated can even get a hearing on whether the sex-based distinctions are discriminatory and problematic. The cisgender and normatively female people many anti-trans laws claim to protect should not rest easy at all.<\/p>\n
Dobbs<\/b> Rides Again<\/b><\/p>\n
The shadow of the anti-abortion Dobbs v. Jackson opinion is everywhere in Skrmetti. So is the shadow of a somewhat more obscure case, Geduldig v. Aiello (1974), in which the Court found that a government program that treated pregnancy differently from other potentially disabled conditions did not constitute discrimination on the basis of sex, because while it is true (or it used to be true) that only women get pregnant, not all women do. This kind of laugh-out-loud precedent helped the Court find that kicking the legs out from constitutional protections for abortion access wasn\u2019t sex discrimination, either.<\/p>\n
So, even as Roberts and his friends insist on the integrity of the old sex discrimination precedents, they also underline the limits on their sex-based jurisprudence. Does this mean that, in cases where the SCOTUS majority can\u2019t simply claim that there\u2019s no sex talk in the statute and so the sex-based analysis doesn\u2019t apply, they can instead rely on Geduldig and Dobbs to say that even if a state law regulates something that is only experienced by women (and some nonbinary people and transgender men), it doesn\u2019t matter because not all women are affected? What in the name of Heaven might be coming next in the realm of reproductive health care?<\/p>\n
The ubiquity of Dobbs is also bad in that it strengthens the fiction built around that decision that it represents a power-to-the-people victory for popular sovereignty, and not a brick in the wall of an anti-woman, anti\u2013reproductive freedom, anti-liberty agenda long in the making. The worst of this appears in Justice Clarence Thomas\u2019s concurrence, which riffs in full-on Trumpian mode about elite grievances: The people\u2019s \u201csovereign prerogative,\u201d he writes, \u201cdoes not bow to \u2018major medical organizations,\u2019\u201d such as the ones that consider certain medications appropriate for transgender minors.<\/p>\n
Quasi-Suspect<\/b><\/p>\n
Having kicked away the idea of sex-based classification, the justices consider whether transgender people might have their own independent claim on the Constitution as a new \u201csuspect\u201d or \u201cquasi-suspect\u201d class, as gay people have come to be in the past 30 years. They raise this intriguing question, only to answer it in the negative.<\/p>\n
In fact, even as they are giving Tennessee and other states a green light to discriminate against people on the basis of their being trans\u2014their desire, as trans-identified people, to access medical treatments that will allow them to delay or evade certain physical developments characteristic of a gender with which they do not identify\u2014and arguably engaging in anti-trans discrimination themselves, the justices make it impossible for trans people, at least for now, to make a claim on the Constitution as transgender people.<\/p>\n
Justice Roberts claims that the Tennessee law simply doesn\u2019t classify on the basis of transgender status, any more than it does on the basis of sex. Justice Amy Coney Barrett, writing for herself and for Justice Thomas, goes further to suggest that it doesn\u2019t matter whether Tennessee is classifying on the basis of transgender status, because transgender status doesn\u2019t get you anything in constitutional terms. In other words, she describes discrimination on the basis of race, national origin, and sex in ways that make it seem like these are completely different kinds of categories than the category of \u201ctransgender.\u201d<\/p>\n
Most galling, Justice Barrett calls back to a moment in the Skrmetti oral argument during which Solicitor General Elizabeth Prelogar, arguing for the Biden administration, messed up and could not remember a single instance in U.S. history when transgender people faced formal, legal discrimination. Barrett uses this to conclude that no such discrimination has existed; then she claims that formal discrimination is an essential prerequisite for naming a \u201csuspect\u201d class, and therefore that transgender people don\u2019t make the cut.<\/p>\n
Taking Stock of Bostock<\/b><\/p>\n
One might read Skrmetti as offering a tiny bit of good news, in that all of the conservative opinions, even the grouchy concurrence by Justice Samuel Alito, leave alone the Court\u2019s important precedent from 2020, Bostock v. Clayton County. It was the holding in Bostock that had given the plaintiffs in this case their greatest cause for hope: A Supreme Court majority ruled in Bostock that gay and trans people were covered by the language forbidding employment discrimination on the basis of \u201csex\u201d in Title VII of the Civil Rights Act of 1964. If \u201csex\u201d under Title VII means sexuality, and it means you can\u2019t be fired because you\u2019re an effeminate man or butch woman, or that you shouldn\u2019t face reprimand or demotion for wearing \u201cwomen\u2019s clothes\u201d when the boss thinks you\u2019re a man (because you\u2019re transgender, or whyever), THEN, the reasoning went, the kind of constitutional scrutiny applied to distinctions of sex should apply to gay and transgender people, too, right? Wrong.<\/p>\n
The justices in the Skrmetti majority dance around the Bostock precedent and twist themselves into pretzels to avoid saying that Bostock applies, even as they also avoid saying Bostock is itself illegitimate. But the glass is less than half full: If I were fired or demoted tomorrow for being an unfeminine woman, or for being a lesbian, I wouldn\u2019t count on this Supreme Court to defend my rights, as opposed to finding some reason why my employer\u2019s treatment of me, or my characteristics, weren\u2019t a match with what seems like the plain language of that precedent. And I certainly wouldn\u2019t count on this very conservative six-justice majority to extend the Bostock precedent to any other realm, i.e., to give life to my rights as a queer person in any situation other than the one explicitly described by Title VII.<\/p>\n
The conservative opinions in Skrmetti will be remembered for their silences and misdirections, their ignorance and obscurantism. And for the prestidigitations that teach us that this Supreme Court majority is willing to circumscribe our rights by the definitional means of a rapier in the back when it is not willing to deprive us of them with a punch in the stomach.<\/p>\n","protected":false},"excerpt":{"rendered":"On Wednesday, the U.S. Supreme Court ruled that the state of Tennessee did not violate the Constitution\u2019s equal…\n","protected":false},"author":3,"featured_media":862,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[35],"tags":[1226,1228,1225,210,1227,1141,1142,1224,278,1229,67,132,68],"class_list":{"0":"post-861","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-health-care","8":"tag-conservatism","9":"tag-felicia-kornbluh","10":"tag-gender-sexuality","11":"tag-health","12":"tag-health-social-policy","13":"tag-health-care","14":"tag-healthcare","15":"tag-law-justice","16":"tag-supreme-court","17":"tag-tennessee","18":"tag-united-states","19":"tag-unitedstates","20":"tag-us"},"share_on_mastodon":{"url":"https:\/\/pubeurope.com\/@us\/114718613409936884","error":""},"_links":{"self":[{"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/posts\/861","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/comments?post=861"}],"version-history":[{"count":0,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/posts\/861\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/media\/862"}],"wp:attachment":[{"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/media?parent=861"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/categories?post=861"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.europesays.com\/us\/wp-json\/wp\/v2\/tags?post=861"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}