Should Stereotyping Without Classifying Trigger Heightened Scrutiny? A Confusing Skrmetti Side-Spat
My latest Verdict column went live on Monday morning. In it, I offered faint praise and substantial criticism for the Supreme Court's decision in United States v. Skrmetti, which upholds Tennessee's ban on gender-affirming care for minors. The praise is for the civil tone of the majority opinion by Chief Justice Roberts. Unlike many Republican politicians (especially President Trump) and even some judges, Chief Justice Roberts refers to transgender persons respectfully. The criticism is for what I regard as a highly formalistic approach to identifying sex discrimination and discrimination based on transgender status and for sanitizing transphobia by taking too seriously the state's profession of concern for the health and informed consent of trans minors.
My column also criticizes the three Justices (Thomas, Alito, and Barrett) who write separately to say that they would hold that discrimination based on transgender status does not trigger heightened scrutiny, either as sex discrimination or in its own right. My column is especially critical of Justice Barrett's concurrence, which, I say, deploys the criteria for identifying suspect and semi-suspect classifications in an extremely narrow, indeed, perverse manner.
Interested readers can click on over to the column. In the balance of today's essay, I want to focus on a side squabble between Chief Justice Roberts for the majority and Justice Sotomayor for the dissent. Justice Sotomayor says that the Tennessee law, known as SB1, "relies on impermissible stereotypes about the sexes." Because sex-role stereotyping is the core evil at which the Court's cases treating sex as a semi-suspect classification aim, she argues, the Court should apply intermediate scrutiny. To be clear, she also thinks that the law contains an express sex-based classification, so the sex stereotyping is, for the dissent, an additional reason to apply heightened scrutiny.
Chief Justice Roberts, for the majority, does not think that SB1 classifies based on sex because of what I referred to above as his highly formalistic reasoning. He then goes on to say that
the plaintiffs’ allegations of sex stereotyping are misplaced. True, a law that classifies on the basis of sex may fail heightened scrutiny if the classifications rest on impermissible stereotypes. . . .But where a law’s classifications are neither covertly nor overtly based on sex, contrast, e.g., post (opinion of Sotomayor, J.) (referencing a hypothetical requirement that all children wear “sex-consistent clothing”), we do not subject the law to heightened review unless it was motivated by an invidious discriminatory purpose . . . . No such argument has been raised here.
(The ellipses above and in the next two block quotes replace only citations, not anything substantive.) In so saying, the Chief Justice was responding to the following claim by Justice Sotomayor:
[A] law policing a sex stereotype, like the hypothetical requirement that all children wear sex-consistent clothing, can itself qualify as sex-based government action that triggers intermediate scrutiny. The clothing law would tolerate from a female minor at least some behavior (wearing a skirt, for example) that it proscribes for male minors and thereby treat minors differently on the basis of sex.
Who's right? The answer, I think, is: (A) neither side, exactly; but (B) it doesn't matter because the category that the Justices are arguing about probably doesn't exist in reality.
Let's start with the Chief Justice's claim. As Justice Kagan explains in a short dissent of her own (in addition to her joining Justice Sotomayor's dissent):
[T]he point of applying [intermediate scrutiny] is to smoke out “invidious” or otherwise unfounded discrimination. . . . More concretely put, heightened scrutiny reveals whether a law is based on “overbroad generalizations,” stereotypes, or prejudices, or is instead based on legitimate state interests, such as the one here asserted in protecting minors’ health.
Chief Justice Roberts doesn't deny any of that. But then his position doesn't have a whole lot of logic to it. After all, if the point of intermediate scrutiny is to figure out whether a law relies on impermissible sex/gender stereotypes, then the conclusion that the law relies on such stereotypes should arguably result in per se invalidation, but, at the very least, it ought to result in heightened scrutiny.
But now we come to the puzzle of what exactly the dissenters mean by a law that employs sex-based stereotypes without classifying based on sex. Justice Sotomayor's example is a law requiring children to wear "sex-consistent clothing." But such a law does classify based on sex. The clothing one must wear under the law will differ for boys and girls. Boys but not girls who wear skirts will be deemed to violate the law, as will girls but not boys who wear ties. The fact that, in Justice Sotomayor's example, the specifics of the dress code incorporate social conventions about what counts as "sex-consistent clothing" rather than stating those aspects expressly does not make the law sex-neutral. Indeed, that seems to be her point.
Can we come up with a hypothetical law that really does involve sex stereotyping without classifying based on sex? I think so.
Suppose that a law mandates that doctors in state hospitals wear ties when on rounds and blue scrubs in surgery, while also mandating that nurses in those same hospitals wear skirts when on rounds and pink scrubs in surgery. The law doesn't classify based on sex. All doctors, regardless of sex, must wear ties and blue scrubs; all nurses, regardless of sex, must wear skirts and pink scrubs. Nonetheless, the law pretty clearly relies on sex stereotypes. By prescribing what social convention deems male attire for doctors and female attire for nurses, the law reinforces sex stereotypes that men but not women are doctors and women but not men are nurses.
My moral intuition for the foregoing hypothetical aligns with the dissenting view: even though the law doesn't classify, it does rely on archaic stereotypes of men and women. It should therefore be subject to intermediate scrutiny, which it should fail. It's not clear to me that the legislature has even a rational basis for the particulars of this dress code, much less that it substantially advances an important interest, as required to satisfy intermediate scrutiny.
However, I believe the approach of the Chief Justice gets us to the same result. Note that he says that stereotyping without classification doesn't result in heightened scrutiny "unless it was motivated by an invidious discriminatory purpose." In my hypothetical, it's nearly impossible to imagine any purpose for the law other than the state's endorsement of the invidiously discriminatory view that only men can be doctors and only women can be nurses. So the law falls within the Chief Justice's exception.
Now maybe that's not the result that the Chief Justice and the majority would actually endorse. Maybe they would say that an "invidious discriminatory purpose" means what the Court's cases sometimes call "animus." But I don't think that's the best reading of what the Chief Justice wrote. Taken in context, I think he's merely saying that there are two ways to get to heightened scrutiny: an express invidious classification; or a neutral law that was adopted for an invidiously discriminatory purpose. If so, then the majority would also apply heightened scrutiny in my example.
But here's the thing. It's just about impossible to concoct an example of a sex/gender-neutral law that is based on archaic sex stereotypes that isn't also nearly certain to have been adopted for an invidiously discriminatory purpose. I know because I tried really hard to come up with examples. Maybe my imagination just isn't good enough. If readers can conceive some examples that do the job, I'll confess error and write them up in a future essay. For now, however, I conclude that the disagreement about sex-stereotyping laws that don't classify based on sex has no real-world consequences.