David Hunt

In a friend-of-the-court brief filed with the U.S. Supreme Court last September, scholars at the Williams Institute at the UCLA School of Law argued against Tennessee’s ban on gender affirming care for young people.

Laws enacted in conservative states — primarily in the South and Midwest — outlawing puberty blocking medications and hormone therapy place unfair burdens on transgender youth and their families, the scholars wrote, forcing them to either travel great distances at great expense to access care, or to forego gender affirming care entirely.

Writing for the majority, Chief Justice John Roberts took note of the brief, quoting from page 5 to acknowledge that transgender people do exist, that an “estimated 1.6 million Americans over the age of 13 identify as transgender, meaning that their gender identity does not align with their biological sex.”

But it was downhill from there. 

I’m David Hunt. I asked Brad Sears, founding director of the Williams Institute and a longtime legal scholar at the University of California Los Angeles, to take a deep dive into the court’s sometimes tortured reasoning in United States v. Skrmetti.

Why don't we start at a pretty high level here. The Supreme Court came in today with the ruling in the Skrmetti case. This is a Tennessee law that bans gender affirming he healthcare for minors. I guess not unexpected. What's your reaction?

Brad Sears:

Yes, I, I don't think the Supreme Court's decision is unexpected. And you're exactly right. What it does is it upholds Tennessee's law banning gender affirming care, receiving puberty blockers, or hormones for transgender youth. Close to half the states have a law like Tennessee's. Those laws were already in effect. So what the court has said today is there's no constitutional problem with those laws, at least with the constitutional arguments that we heard as part of this case.

David Hunt:

Okay. So the question before the court was whether this Tennessee law, SB 1 violates the equal protection clause of the US Constitution's 14th Amendment. So had the court found that the law violated that clause, what would that have triggered in terms of judicial scrutiny?

Brad Sears:

One of the main things that the lawyers in the, in this case were arguing for was that the court consider this a form of sex discrimination. That your gender identity is like being male or female, being cis male or female, is your sex. And people were not being allowed to have treatments that are offered to others merely because they were transgender. And this was discrimination based on sex. Well-established precedent that that type of discrimination the court takes a closer look at and really makes sure that any restrictive policy, any burdensome policy has a strong reason for it. So it would have been — one outcome of this case would be to say, yes, this is discrimination on the basis of someone's sex. It needs to go back to the lower court to hear more evidence about the burden that it has on transgender people. And then what the state is gonna argue is why even though there is a burden, the law should be permissible. Instead, the court said it's not discrimination based on sex. Not necessarily surprising based on the, the oral arguments, but not that logical as some of the dissenting justices pointed out. Therefore, we're going to hold these laws to our lowest level of review. And under that level of review, we almost always say the law is okay, and this ban is okay.

David Hunt:

So the, the sort of rational basis review merely requires the state to have some rational reason for enacting the law. And the Supreme Court found in this case that the rational reason was that medical treatments were risky. And so therefore, the state in, in terms of in, in its view, protecting youth from risky or dangerous procedures could enact this ban. 

Brad Sears:

Yeah, I mean, I, yes, I I think that's a, that's a great description of rational basis review. You, you nailed it. It even goes one further. The court will defer to the legislature even when something's uncertain. So if there are competing bodies of research out there, maybe there's only one study that goes against the majority of others, the court will say, it's not our decision to weigh that research. We'll let the legislature do it. And if you read the opinion from Justice Robert's opinion, kind of throughout the concurrences, that's what they at least claim they're doing. There's uncertainty in this area. We're not drawing a research conclusion. We're gonna let the legislature in Tennessee draw that conclusion. That's their role, not ours.

David Hunt:

What the court also said was that the law, the, the majority said the law does make distinctions, but not based upon sex or trans status, but only on two things, age and medical diagnosis. I guess my reading  and Sotomayor’s dissent sort of made the point that they were sort of twisting themselves around to try to get to their desired result.

Brad Sears:

Yeah, you have to do some, I, you know, lawyers are, are accused of doing legal gymnastics. I think the court is definitely doing some Olympic level legal gymnastics to be able to say I'm not denying you these treatments because you're transgender. And it's not even discrimination on the basis of transgender status because you can be transgender. I'm just saying that if you need hormones or puberty blockers based on having gender dysphoria that's being denied to you. It's not based on your sex. Because it doesn't matter what sex you are. If your reason for taking these treatments is to have a body consistent with your gender identity, it doesn't matter if you were biologically born a man a, a woman. We're treating all sexes the same. 

And as a matter of fact, some transgender youth don't take these treatments. We're not saying anything about those people. And so they compare it to probably one of the most criticized <laugh> pieces of reasoning the Supreme Court has ever done in a civil rights case, which is say the discrimination based on pregnancy is not discrimination against the women because some women can't get pregnant. And so it did not matter to them that you know, it definitely at that time, the main understanding was that only women could be pregnant, get pregnant. The fact that some could, some couldn't meant this was discrimination on pregnancy, not discrimination based on sex. One of the most criticized piece of reasoning, I think in all of Supreme Court history, you'd have to go back to some of the racial discrimination in slavery cases to see a more criticized few lines and opinion.

David Hunt:

And that was a case where an insurance company did not want to cover pregnancy. And it said, well, we're not discriminating against women by not covering pregnancy. So it, that was very tortured sort of reasoning, but, but it does dovetail very nicely for them with the sort of assertions they're making here. So to quote, Roberts minors of any sex may be administered puberty blockers or ho hormones for other purposes. 

Brad Sears:

Yeah. The, the other comparison that the majority and the descent go back and forth with, of course, is Loving versus Virginia. And so a plausible piece of, or the same piece of reasoning would be that we're not discriminating against black people. We're saying, no one can get married, interracially. It doesn't matter if you're white or black. You, you can't interracial marriage. And in that case, the court saw that saw laws that prohibited interracial marriage for what they were: a stamp of inferior inferiority on black people. And so it saw through that kind of over formalistic legal reasoning to the heart of why the law existed in the first place. I think it's hard to say that if you have a law against medical treatment for gender dysphoria, you're not directly impacting sex and someone's transgender status.

David Hunt:

Yeah. And the, the, there was the arguments Sotomayor made that when you're denying gender affirming care to say a transgender boy, but you, you would not deny the same medicines or hormones or treatments to someone who was not transgender, that, that by its nature is sex discrimination.

Brad Sears:

Yeah. And, and since we're celebrating the 10th anniversary of the Obergefell decision, there's another decision that cut through all that and said, it's not much of a right that I can marry <laugh>. I can marry someone of a different sex. It by my very identity who I want to marry is someone of the same sex. So to tell to say that this law doesn't discriminate on men versus women because they both cannot marry someone of the same sex and they both can marry someone of a different sex, is a very hollow piece of legal reasoning. 'cause It does not actually apply to the reality of the, these people's lives.

David Hunt:

Okay. So to get further into the weeds, both sides discussed the Bostock case, and there was a lot of talk on the right in the majority about Thomas felt like we don't even need to engage with Bostock. And Roberts was, and the, and, and some of the others were like, well, we'll talk about Bostock and why it doesn't apply. So can you explain what Bostock is and why the court decided to avoid it?

Brad Sears:

Yeah. And so what's interesting about Bostock is that the majority of the Supreme Court and Justice Gorsuch, who's part of the conservative majority on, on, on the Supreme Court they said that our civil rights laws that prohibit employment discrimination do protect transgender people because discrimination against transgender people is sex discrimination. So they cut through this really strained legal argument where you were just taking us through when the court was making, they were able to cut through that and say based on the language of Title VII that prohibited civil employment discrimination, this is still sex discrimination. So that kind of reasoning was at issue in that case. And Bostock might have been a reason that the court took a different path today. The Bostock opinion and Justice Gorsuch who wrote it really said it had to do with the very specific words of Title VII. And some of the dissenters pointed out, there may be specific differences, but they're not meaningful differences. But there was that textual limitation to the Bostock decision. I think what's kind of amazing about today's opinion is that the majority didn't let the reason in Bostock get it in the way of their strained reasoning today. They also didn't turn around and overrule or undermine Bostock. And so people were concerned about that as well. We could lose our employment discriminations for transgender people in the workplace. And I think with today's decision you have a very strong majority for sure, and supported the Bo talk decision as it applies to employment discrimination and leaving open broader applications in other contexts. And as a matter of fact, in his concurrence, justice Alito, who dissented in Bostock said, I disagreed with the case, I dissented it is now the type of precedent that this court really should respect and follow. And so I think with that statement by Justice Alito any challenge to Bostock to be overturned would fail.

David Hunt:

There was this range of possibilities that the Supreme Court could go with. And one of them was to say the, the Equal Protection Clause does not cover sex discrimination. That's sort of the, you know, one extreme. And then the other, of course would be to, to follow Bostock and say, no, the sex discrimination, this is sex discrimination. And it's not, it's not legal. Yeah. But they, they took a middle ground.

Brad Sears:

This is a devastating opinion impacting hundreds of thousands of youth and families that, that are now really, I think, faced with making a decision about, am I gonna ask my child to change who they are? Are we gonna change where we live? I, I, I, I think that's a decision facing a lot of families today. They don't get to be hopeful about future decisions 'cause they have to make decisions across the short adolescence of their child. And so, and so that I think is the, is really the painful decision. The painful impacts of this decision today. Thinking longer term, I think there are some positive things you can pull out of this decision. People need to work to earn a living. There are protections still in place for transgender people in the workplace. That, that I think is very clear from today's decision.

There are other legal arguments available to transgender people, including under the Equal Protection Clause. This court did not decide whether gender identity was a status protected for heightened scrutiny. And there was some discussion about the types of discrimination that transgender people face. It was very much about minors and medical treatment, and so does not apply to adults. But Justice Roberts even had some language that would indicate, okay, if I, if I'm living in one of the states and I can't gender affirming care, but I want to go to school and use the name that's comfortable with me and the pronouns, this opinion hasn't decided that either. He indicates that would be more squarely discrimination, either based on sex or somebody's transgender status. So there are room, there's still room for other arguments. And, and I think one of the most reassuring things I see about this opinion is that if you look at the actions by the President, they are based on transgender people. Like transgender people don't exist. There are only two binary sexes. To the extent there are people saying that they're transgender they either have a mental health issue, or in the case of the military, literally the executive order says they're committing fraud. On the military.

This opinion is devastating, but it starts with one short, simple sentence that there are 1.6 million transgender people in the United States, and it defines what being transgender means. To me, that seems like a clear rejection of the Trump administration's portrayal of transgender people as either confused are people who are trying to commit fraud on others around them.

David Hunt:

Well, if you read Robert's opinion and then read say the Tennessee law, the Tennessee law sounds like a political screed that you would hear on Newsmax. Whereas the Robert's opinion sounds moderate and measured, and he uses politically correct terms like transgender boy and transgender girl in ways that the people on the left would use them. So I was struck by that, but, but is Roberts in a way putting, you know, sort of a nice face on discrimination and you know, this sort of hate?

Brad Sears:

Yeah, I, I mean, I think that's an excellent question. And if you follow Justice Robert, sometimes he will use language that is very even keeled and respectful and do quite a bit of damage. And sometimes he'll issue an opinion like this, which is pretty narrow in its scope, but that doesn't mean that he won't go on and including and include expanding the reach of an opinion or decision. So that could be a strategy, that could be exactly what's happening here. I still think the court is very aware of what's happened in the last few months in this country and in the last few years, targeting transgender people. And this is a step away from that that they feel like they have to e even if they're doing it for strategic reasons, it's a strategy that they feel they must, I guess, follow for the legitimacy of the court.

And I just wanna go back to 1986 and the Bowers decision which said that laws that criminalized same sex behavior were constitutional. That court, the majority, <laugh> the majority felt no need to be respectful or even characterize lesbian, gay, and bisexual people as people with a full identity as opposed to a discreet set of sexual acts. And so I think what this language also indicates is transgender people do exist in this country. I think throughout the majority of concurring opinions, they have a history in this country that history includes discrimination against them may not be enough for some of the constitutional doctrines they're discussing, but they all acknowledge that there has been discrimination and that transgender people still have legal arguments available to them to challenge laws that discriminated against them. That was that was not how things stood after the Bowers decision. So I, I I, I, I don't, I don't wanna paint this obviously as a great decision for transgender people but I do feel like there are elements of this decision that are, that are stepping back from the worst that we're seeing in terms of policy development towards transgender people today.

David Hunt:

Yeah, I'd like to believe that. But then I read Barrett in her concurrence, and she just does not see that this is a powerless group. She does not see that this is a distinct group. She does not see that this is a group that needs the, that that is facing what she calls de jure discrimination. Do we live in the same world? I kept thinking as I was reading her concurrence. And so I, I think Roberts and I live in the same world. I'm not sure that Thomas and I live in the same world, and I'm certainly not sure that that Barrett and I live in the same world. I don't know if you had those ideas in your head when you were reading.

Brad Sears:

Yeah, I, I was very interested in her opinion and I, and I was from the oral argument, very curious about how she was gonna develop that line of questions, questioning in the oral argument which turned out, turned out to be just as important as everyone thought it was, maybe in a different way. But it is where she focused is can we consider transgender people a class like race or like women that deserve special protection and consideration from the courts. One of the broader implications of this opinion was an undermining of equal protection law altogether. I think her concurrence comes close to that. In my read between justice Thomas, justice Alito and Justice Barrett, there's very little hope with this court that any other group would be protected like race or sex under that equal protection analysis.

And Justice Barrett basically says, ah, we're not being really particularly <laugh> picking on transgender people here. We're not likely to put anyone else through this analysis and have them receive special protected. I think that distinction that she makes between discrimination in private and de jure, or discrimination by government, by laws, and that she's only gonna look at discrimination from laws is incredibly damaging and undermining of the equal protection law. And let me give you one example that's really, I think important to the future of LGBT rights is that for a civil rights law to apply to state government, so let's say it's employment protections in the employer is the biggest state in, in, or one of the biggest employers in almost every state in the country for a discrimination law to apply to state employees, you have to show a big history of discrimination.

That's hard to do because most surveys are more general. So when people have made this argument, say, under the Americans with Disabilities Act, the lawyers will bring up a great body of research showing discrimination against disabled of people, some of which is by governments, some of it in the private field. And they'll say, but it's all the same type of discrimination. It's all the same pattern. I think it's pretty clear from Justice Barrett's decision, she will not do that anymore. You have to have specific research and examples by state government. So the test to become a protected group I think just got a lot harder with that opinion.

David Hunt:

Yeah, I mean, her attitude was, or, or, well, her, her statement was, we have not had a new protected class for 40 years and it, and it doesn't look like we're gonna do that anytime soon. It, it reminded me of, you know, Anita Bryant saying, enough, enough, enough. Like, yeah, yeah, we don't need any more of this.

Brad Sears:

And it is interesting 'cause you mentioned one of the outcomes here was, you know, not sex discrimination. We, we went down that path, but maybe that's not a protected group already. There's some language I believe in Justice Alito’s opinion. It's like, that's like, race is very unique in this country. And kind of the prime example that that starts going down the path you were just describing is really what the equal protection clause was prohibiting was racial discrimination and racial discrimination alone.

David Hunt:

Yeah. Well, and the court has a history of like with the voting rights laws to say, eh, we're, we're over that we're done, you know, that we needed that back in the day. It's a new world. And it, I got that the sort of the same feeling especially in reading Barrett's opinion that Yeah, yeah. Like we've over, you know, we've gone as far as we need to go and don't look for us to go a whole lot farther. In fact, I I felt like maybe they were regretting the Bostock decision, but I don't know. It's hard to read between the lines.

Brad Sears:

Yeah, it's, and, and it's interesting and, and I guess here's my other positive spin is if you look at the initial executive order on the military ban, and then some of the follow up statements. These are very <laugh> if you're looking for animus, these are very discriminatory, prejudice laden statements that transgender people are committing fraud. This is gender ideology. You know, these people are confused. They need to be helped. They're not actually transgender. I think this court, and particularly probably Justice Roberts <laugh>, they don't wanna write a blank check to this administration that you can go out there and say anything and then put a policy behind it and we're going to remain silent. That doesn't mean they wouldn't necessarily uphold the policy or the law in the end, but I think this reasoning leaves them room to start naming things as discriminatory against transgender people that are, that are discriminatory or statements based on him.

David Hunt:

And yet Thomas seemed to want to take his time and his, the, you know, the, the amount of ink that he had allotted to him to write his opinion, to spend time talking about something that had nothing to do with the legal arguments, which is, oh, let me tell you about what puberty blockers do and how risky they are. And let me tell you about the surgeries. Surgery was not part of this case, to be very clear.

Brad Sears:

Yeah, yeah. It's, yeah, I, I, I was struck by that as well, is that Roberts did not feel the need to give us a, a full lesson, even if a loaded lesson on gene affirming care. And Thomas did. And I think I, I think another aspect of this opinion, which shows you how hard it is to succeed in one of these cases, is that under this lower standard of the review, the court doesn't have to say, the research shows or the majority of researchers show X, Y, or Z, and we're gonna follow that. They're being deferential to the state legislature. So all they have to, all there has to be is some things criticizing the current research, one study, one report out there that goes against it, that gives the court a leg to stand on to say there's uncertainty. If there's uncertainty, we're not the experts. The state legislature can make a decision and we'll defer to that. And Jeff's Roberts opinion is an opinion based on uncertainty, not certainty about the research on gender performing care.

David Hunt:

Okay. So just to wrap up is this gonna embolden other states to enact similar bans on gender affirming care for minors? And is this also going to cause states like Tennessee to decide why stop with minors? There's risk to adults as well?

Brad Sears:

Yeah, I mean, I, I think a good a good map for what will happen next is what happened after the Dobbs decision on abortion bans, is that states who have bans will be, might be emboldened. And definitely some states within, in some legislatures within the states will be emboldened to at least introduce bills that make the bans even broader. I think the carryover to new states becomes a little trickier because most of the states without a current ban have a shield law protecting people from the states who do have a ban. So they've already taken legislative action. 17 states have those kind of affirmative laws on the books to protect families that come there and get care for their minors. It, it would be pretty surprising to see those reverse into a state banning access. I think the other lesson that probably would surprise the decades of people who worked to overturn Roe versus Wade is what happened the day after they turned Roe versus overturned Roe versus Wade was not what they imagined.

I don't think they imagined Kansas and Missouri saying that their state constitutions protected access to abortion and to reproductive care. They didn't probably imagine the next Republican president backing away from a federal ban on abortion. And so all the, what the court has done is saying the Constitution based on these arguments doesn't prohibit the bans. There's a lot of other players in our society who make law and policy. This isn't the end of this discussion. There is still gender affirming care for youth in many states, and there still is a role for people at the ballot box and a lot of government actors to make a difference on this issue.

David Hunt:

In her dissenting opinion, Justice Sonya Sotomayor accused her conservative colleagues of “abandon[ing] transgender children and their families to political whims.” And she said, the decision will “do irrevocable damage to the Equal Protection Clause and invite legislatures to engage in discrimination by hiding blatant sex classifications in plain sight.”

American Civil Liberties Union attorney Chase Stangio, the transgender man who argued the case before the high court last December, had this reaction: The “ruling is a devastating loss for transgender people, our families, and everyone who cares about the Constitution,” he said. “Though this is a painful setback, it does not mean that transgender people and our allies are left with no options to defend our freedom, our health care, or our lives. The Court left undisturbed Supreme Court and lower court precedent that other examples of discrimination against transgender people are unlawful. We are as determined as ever to fight for the dignity and equality of every transgender person and we will continue to do so with defiant strength, a restless resolve, and a lasting commitment to our families, our communities, and the freedom we all deserve.”

I’d like to thank Brad Sears, founding director of the Williams Institute, for sharing his expertise for this program. For This Way Out, I’m David Hunt.