Practicing Law Institute SCOTUS Roundup Today: I Preview My Skrmetti Remarks

Today, I'll be participating in the 27th annual Practicing Law Institute Supreme Court Review--as I have done for each of the past 26 years. It is almost surely too late for anyone learning about this one-day event to hustle over to PLI headquarters in midtown Manhattan in time for the first panel (which starts at 9 am), but a recording the full program will be available afterwards on demand. This year, as always, there's a great lineup of speakers, with Master of Ceremonies Berkeley Law Dean Erwin Chemerinsky and co-chair Professor Marty Schwartz running the show. It's a great way to catch up on your Continuing Legal Education obligations. Okay, that's enough advertising. Now onto some substantive thoughts.

The format for the panels allocates presenter roles and commenter roles. I'll be commenting on most of the panels and presenting on United States v. Skrmetti during the second morning panel. As readers likely recall, in Skrmetti Chief Justice Roberts, writing for the 6-3 majority, rejected an equal protection challenge to Tennessee's ban on gender-affirming care for minors. I intend to draw much of what I have to say about the case from the Verdict column I wrote shortly it was handed down--The Roberts Court Puts a Velvet Glove on the Iron Fist of Anti-Trans Backlash--and, to a lesser extent, an essay I published here on DoL discussing the role of sex-stereotyping in equal protection cases.

As the title of my Verdict column indicates, I found the majority opinion (and all of the concurrences) in Skrmetti not very credible in their efforts to portray the Tennessee legislation as motivated solely by a concern for the health of and informed consent by the state's transgender minors. I reached that conclusion for two reasons.

First, the legislators themselves wrote it into the law. It states that one of its goals is “encouraging minors to appreciate their sex.” The Chief Justice's opinion dismisses the obvious import of this language--which is transphobia--with the contention that it "simply reflect[s] the State’s concerns regarding the use of puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence . . . ." With due respect, that's a non sequitur.

Second, I live in the real world. It is plain that we are experiencing an anti-trans backlash. It began in red states and now has spread to the federal government. The Trump administration is issuing executive orders and coercing universities into accepting the remarkable proposition that anti-trans measures are not merely permissible but legally required. Failure to recognize the Tennessee law as part of the broader pattern of anti-trans backlash reflects a kind of deliberate blindness on the part of the Court.

The Roberts Court's failure to acknowledge the bad faith of the Tennessee legislature is of a piece with its most egregious conduct over the course of the last term: its parallel failure to acknowledge, much less do something about, the bad faith of the Trump administration. Especially in its shadow docket cases, the Court has acted as though Donald Trump is a normal president and the actions his political loyalists have taken in the name of the United States are presumptively legitimate. As I argued in my end-of-Term Verdict column, normalizing Trump's assault on the institutions of constitutional democracy--including the federal courts--will make it just that much harder to stop the nation's slide into autocracy. In my remarks today on either the opening panel or during my presentation of Skrmetti, I'll connect this sane-washing of Trump to the sanitizing of the Tennessee legislature's conduct.

Time permitting, I also intend to offer a thought about transgender girls and women participating in girls' and women's sports, which, along with the measures blocking gender-affirming care for trans minors, has been an issue that the right has demagogued about relentlessly. I'll contend that the issues are connected and, after Skrmetti, perversely so.

There is pretty good evidence that, on average, and with variation by sport, "transgender women who experienced male puberty before starting feminizing gender-affirming hormone therapy (GAHT) likely have an athletic advantage over athletes who experienced female puberty." Thus, if a trans minor who was assigned male at birth delays transitioning until after she has gone through male puberty, she will have competitive advantages when competing in women's sports, even after her testosterone levels have been brought down. That's because of a "legacy" effect of male puberty on bone and muscle development.

But now note how that fact interacts with laws like the Tennessee ban on gender-affirming care. It specifically bans puberty blockers--with the result that a trans female will first have to go through male puberty before transitioning. In the absence of the Tennessee ban (and similar laws like it in a majority of U.S. states), trans girls could transition before going through male puberty (by taking puberty blockers), and thus would not have a persistent athletic advantage. By banning that option, the ban on gender-affirming care creates a justification for barring trans women from competing in women's sports. One set of transphobic policies bootstraps another.

To be clear, I'm not endorsing laws or policies that restrict transgender athletes from participating in women's sports, even if they have experienced male puberty. I am merely pointing to one side effect of the Skrmetti opinion. I'm willing to assume it's an unintended side effect. So far as the six Justices in the Skrmetti majority are concerned, however, I doubt that it is an unwelcome one.