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In this emergency episode, Chase Strangio of the ACLU joins the pod to talk about today’s decision in United States v. Skrmetti. Then, Kate, Leah, and Melissa dive deep into the opinion, the various flavors of awful found in the concurrences from the majority, and what this decision might mean more broadly for the future of sex-based discrimination under the Equal Protection Clause.

TRANSCRIPT

Leah Litman [AD]

Show Intro Mr. Chief Justice, may it please the court, it’s an old joke, but when a argued man argues against two beautiful ladies like this, they’re going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.

Melissa Murray Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are coming to you today with an emergency episode about the opinions the court released on Wednesday, June 18th. In particular, we are going to talk about United States v. Skrmetti, the case involving a challenge to Tennessee’s law that prohibits gender-affirming care for transgender youth.

Leah Litman So the Supreme Court upheld that Tennessee law in the decision. And we’re going to get into some of the weeds of the case in a bit. But first, we are extremely fortunate to be joined at this time by Chase Strangio, Deputy Director for Transgender Justice and Staff Attorney at the ACLU, who argued the case on behalf of the parents of the minors. Chase is just going to be with us for a bit at the beginning. So we wanted to spend this first time getting his thoughts since he has many, many things to attend today. The big question in the case was whether the Tennessee law triggered what’s called heightened scrutiny. Basically, whether the law warranted courts looking closely at the law’s justifications and whether the laws serve those justifications, or whether courts should instead show near total deference as they upheld the law. Chase, on a quick read, the majority opinion is obviously harmful to trans kids, the trans community, and trans lives by allowing these restrictions on gender-affirming care, at least for minors, to go into effect. But it’s not as bad as it could have been. Could you explain why that is and why it matters?

Chase Strangio Yeah, thank you for having me and obviously I want to just start with an acknowledgement of the fact that there are many, many transgender young people in their families who are already living their worst nightmare in this country right now. And the fact the court just legitimized that is devastating and I don’t want to in any way minimize the harms to these families. And at the same time, there are ways that the decision goes out of its way to be and so We are holding on to that language because it matters for how we fight other fights in in the future. So the court is very clear that they have decided that this is a type of line drawing that is not sex based, which I think is fundamentally wrong. But they also say that this not a law that discriminates based on transgender status. Now, I also think that is wrong. However, What that means is the court did not reach the question of whether or not transgender status independently warrants heightened scrutiny. So first of all, there are two circuits that have already held that it does. Those decisions, that law is still good law. And so in other contexts where you have government discrimination against transgender people, you still can argue and will have heightened scrutiny in the Ninth and Fourth Circuits. I think that is important. The next thing that is is important is unlike the Sixth Circuit, The court does not opine on whether or not Bostock applies outside of Title VII. The Sixth Circuit had said, for no real reason, that Bostok was limited to Title VII, and the Supreme Court clarifies here that they’re just not reaching that question. And so it is not a broad decision on a very narrow interpretation of Bostoc, which the Sixth circuit had offered. And just to be clear, the Sixth Circuit also had said that trans status does not trigger heightened scrutiny. And so that’s another way. This is much narrower than the lower court opinion. And then there’s other language in the decision that makes it clear that other line drawing that would be based on so-called inconsistency with sex outside of the medical context would also be sex-based. And so you have a lot of. Language in this opinion to build off of in litigation in other contexts, and then I think perhaps most relevant for the healthcare context, the court does make sure to say that when there is evidence of invidious targeting of a group of people, that that doesn’t necessarily mean that this, you know, deferential review would come out the same way. And so the line of cases like in Cleburne and Moreno. Obviously still good law. And when we think about what the Trump administration executive action targeting the trans community looks like, the animus is pretty clear on the surface. And so that sort of saves those cases even under the equal protection clause, though many of them have other doctrinal theories. So that’s some of what I’m seeing when looking at this opinion and how it’ll play out.

Melissa Murray So Chase, I think I’m taking a little bit of a darker read on things. And in particular, not surprising. In particular, I’m concerned about what this decision means more broadly for the future of sex-based discrimination under the Equal Protection Clause. It is true that this court didn’t go the full measure, but it did really double down on Geduldig versus Aiello. That is that 1970s era case where the court was looking at an insurance program that discriminated on the basis of pregnancy. And concluded that because not all women are pregnant, it’s not a species of sex-based discrimination. And the court here seemed to re-entrench that kind of logic. These kinds of laws don’t necessarily discriminate on the basis of trans status. It doesn’t necessarily, it’s about medical use. And there are biological distinctions that might be drawn. I mean, they’re making the same kinds of arguments that were earlier made in Geduldig. In your view, what does that mean going forward for how we think about the Equal Protection Clause, particularly in areas like abortion, where people have been trying to make the argument that restrictions on abortion are a species of sex-based discrimination, which this court flatly says is not the case?

Chase Strangio Yeah, I mean, I think one of the most damaging things about Justice Alito’s opinion in Dobbs, other than all of it, which is all damaging, but the fact that it goes out of its way to revive Geduldig in the paragraph that says, in essence, that the theory of heightened scrutiny for the abortion restrictions at issue in Dobb’s fails under Geduldig, that in essence when you’re regulating a medical procedure that only one sex can undergo, it is not sex discrimination triggering heightened scrutiny. You know, I remember when that opinion was leaked, and I saw the Geduldig reference, I thought, this is catastrophic. I mean, this truly going after equal protection doctrine. I will say I do think that there, you know, I think it’s footnote three in the opinion, that in essence does limit Geduldig to this medical conditions context, which so now we have, you know we have Godoldi, we have Dobbs, we have Skrimeti, the court is clearly trying to go out of its way to say sex-based regulations and medicine, when you can cabin them into what I think of as this very disingenuous frame that derives from the doldig will not trigger heightened scrutiny. I’m not sure that scrimmety offers anything different than what we got from Alito in Dobbs. It’s just another affirmation, which is in and of itself troubling. So that’s how I read it. Again, I think it’s so completely analytically wrong. And here I think what they haven’t really answered for is the fact that as to the, at the level of the individual, this is also not even like good old egg because the, if you take one person and look at whether they would be treated differently if they had a different sex, the answer is they would. And under JB under VMI that should trigger heightened scrutiny. And I think the ways in which the chief’s opinion, much like Chief Judge Sutton’s opinion is just. Disingenuous and poorly reasoned is very clear on its face.

Melissa Murray Justice Barrett’s concurrence, which seemed, I don’t know, that it came out of nowhere. I wasn’t necessarily surprised by it. But it did seem she was responding to a question she had asked you in oral argument about whether or not the trans community had ever faced a history of discrimination, as she put it. And she emphasized de jure discrimination. And she wrote in this concurrence today, which was joined by Justice Thomas, that she would not view the trans community as a quasi-suspect class because there was no history of historic discrimination. By law, and she made a comparison to other groups that are legally disfavored. And she talked about sort of the usual suspects, but I wonder if she wasn’t also maybe thinking about Christian conservatives in this particular moment as well. And I wonder what you thought of that concurrence, which seemed almost gratuitous given that the court had already decided they weren’t going to go down that road.

Chase Strangio Yeah, it was certainly gratuitous and it was very disheartening. I will say that I was never convinced that Justice Barrett was a viable fifth vote for a lot of different reasons, though I think that there are reasons to believe she will be a constraining vote on some aspects of executive power, but certainly not all of them, as we’ve seen, that when it comes to abortion, when it come to LGBT people, even just some of her questioning in the Mahmoud arguments, it’s very clear to me that she has a very negative, uh, and I would say almost theological orientation towards trans existence. Um, and, uh, a Christian right-wing theological orientation towards trans-existence, I should say. There are lots of beautiful theological orientations towards trans people. Um, so she writes in this very gratuitous way, it is unnecessary and it is also just wrong. There is a long history of de jure discrimination against transgender people. And I tried to identify a few examples for her at argument. Including the very criminalization for decades of our existence and our ability to go out into public, one would think that that might count. And as Justice Sotomayor says, that you also don’t need to look much further than what’s going on right now to see that we have laws across both the state level and then obviously coming from the federal government that are explicitly and directly targeting transgender people. So that then raises the question that what do you need, de jure discrimination. Going back a certain period of time, what if all of a sudden there’s, you know, I don’t know, hundreds of laws targeting a community? Do you just throw up your hands and say no disjury discrimination, no heightened protection from the court? What is the point of a majoritarian check if the court can simply just look the other way separate and apart from the fact that she got the history wrong?

Leah Litman So we want to be respectful of your time, so we’ll just ask you one more question, which is, do you have advice for litigants and courts who will be grappling with laws that harm the trans community going forward? And what can people do to help support the fight for transgender rights now?

Chase Strangio Yeah, I mean, I think one of the things that you can see in this opinion that you could also see in the Sixth Circuit’s opinion is that they are pulling atmospherically from the culture, not from the record. And so we are all participating in creating that cultural context. We have a role to play in disrupting these harmful and false narratives about trans life. And there’s very harmful stuff that’s being said about trans people in this opinion that I hope people will feel galvanized to fight back because the more that trans people are targeted, the more. We are collectively facilitating the retrenchment of gender norms more broadly, and that’s going to harm us all. So that’s sort of one point I would make just about the role we all have to play. And then when it comes to litigation, I think we are going to continue to litigate cases. In federal court, in state court, there are many arguments that remain available to us. And I think that it is very clear that this court is interested in narrowing the ability of individuals to vindicate their constitutional rights if they’re not. Christian men, but we aren’t gonna stop because of that. And I hope people continue to push back.

Leah Litman Chase, thank you so much for taking the time to join us on an extremely busy day. We so appreciate your time and look forward to seeing the wonderful work we know you are going to do in fighting for trans rights going forward.

Melissa Murray Thanks, Chase.

Chase Strangio Thanks, guys.

Leah Litman [AD]

Kate Shaw Okay, we are back. And I am bummed I had to miss out on the conversation with Chase, but the three of us wanted to do some additional kind of breaking down of some of the majority’s reasoning and also the separate writings in the case. We will start with the majority opinion authored by Chief Justice Roberts and joined by all six Republican appointees. So the court’s key reasoning regarding why the challenge Tennessee law does not discriminate on the basis of sex was that the law doesn’t distinguish on the basis of sex, but rather on the bases of other characteristics, namely age and medical use. That is, according to the court, this is just a restriction applying only to minors and a restriction only on particular treatments for particular medical reasons, but not a distinction on the base of sex.

Leah Litman This coded as both pretty dumb and disingenuous to me, because by saying that the law is about age and medical use, you’re acknowledging that a law can be multiple things at the same time and contain multiple classifications. And oh, by the way, this one has a sex classification too. So the fact that it is those things doesn’t mean it’s not a sex classifications

Melissa Murray I like the whole idea of dumber and disingenuous or as the new hot summer movie from the Supreme Court. Absolutely fantastic. I won’t speculate as to which.

Leah Litman Justice is dumber and which one is disingenuous. There are so many candidates.

Melissa Murray So the emphasis on medical use read, at least to me, like an interest in the so-called biological differences argument as a way of justifying sex-based discrimination. And that was a kind of logic that was used in cases like Geduldig, which the majority actually referenced at length here. So Geduldig was decided in 1974 and it upheld a California insurance program that discriminated on the basis of pregnancy. By concluding that pregnancy-based distinctions were not sex-based distinctions because not all women got pregnant. And Geduldig was so obviously flawed that even Congress felt compelled to do something. So they passed the Pregnancy Discrimination Act of 1978, which said that pregnancy discrimination was a species of sex- based discrimination for purposes of Title VII. And, you know, some have argued that Gidultig has effectively been overruled by cases like United States versus Virginia from 1996. And Hibbs from 2003. But this court seems really intent on bringing it back. And Geduldig gets pride of place in this decision, as it did in Dobbs when Justice Alito blew up the possibility that abortion restrictions were also a species of sex-based discrimination. The one silver lining I will say here about this whole make Geduldig great again kind of line is that… The majority didn’t seem intent on ghosting the United States versus Virginia entirely the way that Justice Alito did in Dobbs. The majority did say for Justice Alita suggested he would do so here. Yeah, he’s on board, but Roberts is not. Roberts and the liberals and some of the other justices are like, yeah, Virginia is still good law. But it really is a. Precedent that they seem to say is about the possibility of relying unduly on sex-based stereotypes. And if you don’t think something is a sex- based stereotype, then there’s no role for Virginia to play here.

Kate Shaw Yeah, I mean, the triumphant return of Geduldig, I mean like as Melissa was saying, not only was it repudiated by Congress when it amended the Pregnancy Discrimination Act, honestly, its reasoning until very recently was viewed as pretty ludicrously specious. It was like mocked in constitutional law courses, but of course it is now back with a vengeance, one of the many terrible things in this cursed timeline. Also, as Sotomayor pointed out in dissent, the law bans medications that are used in, quote, a manner inconsistent with sex. So that is about sex. That is sex-based even more clearly than the pregnancy distinction in Geduldig. But Robert’s reasons, quote, the court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny and such an approach would be especially inappropriate in the medical context. So again, echoing what Melissa just said, this sort of casual insistence that laws involving medical care can permissibly draw distinctions on the basis of sex was a pretty obvious to signal that to this court. Virtually anything will go because biology, if we’re talking about sex classifications, and that is really hard to square with the logic in some of the later sex discrimination cases, which make clear that invoking biological differences is not enough to justify a sex classification. And so while I was relieved that Virginia does get cited and they’re not explicitly retreating from heightened scrutiny for sex classifications, the internal contradictions in the opinion are impossible to ignore.

Leah Litman Yeah, and it’s also pretty rich for a court that has gone all in on the anti-classification theory of equal protection to insist that a mere reference to sex isn’t enough to trigger heightened scrutiny. And elsewhere, it did seem like the majority cut back on protections against gender stereotyping. So they wrote, quote, a law that classifies on the basis of sex may fail heightened scrutiny if the classifications rest on impermissible stereotypes. But we do not reject them all. Some stereotypes are OK. No, but we do not subject the law to heightened review unless motivated by an invidious discriminatory purpose. So again, they seem to be saying OK to stereotype women and men.

Kate Shaw Permissibly, I just had the thought in this conversation that like the Ames case right the straight Discrimination case, maybe they need to preserve some kind of heightened constitutional scrutiny for sex classification. So men can bring claims

Leah Litman Can’t wait. We don’t want to de-emphasize or diminish the extent to which this decision is devastating for the trans community in particular. But this passage and others make very clear that we are all in this together, because when they attack civil rights and civil liberties for one group, they are not going to stop there, which is just one of the many reasons why this decision of no rights, no liberties, just vibes and patriarchy is so concerning.

Melissa Murray That’s a really good point about linked fates here. We should also talk, though, about the majority’s reasoning as to why this isn’t a classification based on gender identity, because that, to me, seemed to be the most disingenuous part of the opinion. So the court emphasized that the Tennessee law, quote, does not exclude any individual from medical treatments on the basis of transgender status. Rather, it removes one set of diagnoses, among them gender dysphoria. From the range of treatable conditions. The court then notes that puberty blockers or hormones are still available to, quote, treat other conditions in both trans and cis minors. And again, they rely extensively on that 1974 decision, Geduldig versus Aiello. And it’s just hard to sort of wrap your mind around what the court is doing here. Everyone can get this, just not for this one thing. And therefore, it’s not a sex-based classification.

Leah Litman Yeah. Well, the logic in Geduldig was the group that was excluded, pregnant people, sure, that was all women. But the group could still access the state’s disability benefits included both men and women. And it’s the same logic here. It was hollow there. It’s hollow here. And I think that should make this decision like Geduldig eligible for a future anti-canon because it is just so revealing the extent to which their worldview. Is really about rolling back the civil rights movement and taking us back to a time which is geduldig, where laws that discriminated on the basis of sex did not even trigger heightened scrutiny. And their formalism about equality calls to mind previous anti-canon decisions like Plessy versus Ferguson, where the court said separate but equal segregation wasn’t race discrimination because it treated everyone the same. Or Korematsu, which upheld the internment of American citizens of Japanese descent, where the court said that was not invidious racial discrimination, but rather about national security interests, or biological differences, or scientific medical uncertainty. Not really, but like just insert a justification to paper over invidius discrimination seems to be the lesson. That list could go on. Bowers versus Hardwick upheld a ban on non-procreative sex. Trump versus Hawaii upheld Trump 1.0s. Travel ban saying that wasn’t a Muslim ban or discrimination on the basis of religion. And we’ll get to the dissents in a second. But here, just because it’s especially relevant, I wanted to highlight this remarkable passage from Justice Sotomayor’s dissent, where she underscores how the majority’s reasoning would roll back major civil rights decisions. So she writes, quote, judicial scrutiny has long played an essential role in guarding against legislative efforts to impose upon individuals the state’s views about how people of a particular sex or race should live or look or act. In a passage that sounds hauntingly familiar to readers of Tennessee’s brief, Virginia argued in Loving, that’s the case that struck down bans on interracial marriages, that should this court intervene, it would find itself in a, quote, bog of conflicting scientific opinion and the desirability of preventing such alliances. In such a situation, Virginia continued, it is the exclusive province of the legislature of each state to make the determination for its citizens as to the desi-ra-bility. Of a policy of permitting or preventing such interracial alliances.” End quote.

Melissa Murray I just want to hit on one beat that you mentioned, Leah. And it seems really lopsided to me. So at one point in the opinion, the majority talks about how the claimants have to show intentional, invidious discrimination in order to prevail. And then with the same breath, they talk about how they state need only show that there’s some sort of neutral rationale underlying the law that it’s not inviduous racial discrimination. And it also seems. One, like it’s gesturing toward disparate impact, but again, just sort of lopsided in terms of what the state has to establish and what the claimants do. So just something that I was thinking about with what you said and your citation of the Sotomayor dissent. Speaking of separate writings, though, we’ve got some big concurrences here. There are a lot of concurrences. So there are Justice Thomas wrote a concurrence, Justice Alito wrote a recurrence, and Justice Barrett wrote a concurrent. Surprisingly, one Neil Gorsuch was a silent sister at oral argument, and he remained a silent sister here as they cucked all over his opinion in Boss He had nothing to say. The other great concur also managed to hold his tongue.

Kate Shaw I guess small blessings that we didn’t have to read Kavanaugh Concurrence today. It’s one of the only good things about this day. Seriously.

Melissa Murray But we’ve got to talk about some of these concurrences. And again, I guess this is time for another recurring segment of we need to talk about Justice Thomas’s concurrence. So this Con-Clarance, is that what we’re calling it? Clarecurrence was a lot, a lot a lot. So first of all, a couple of notes. There are no new ideas here. So Justice Thomas is. Simply recycling old arguments. So at one point, he talks about the idea that trans youth will come to regret their decision to treat gender dysphoria with medical interventions. And he recycles the logic of abortion regret that was used to great effect in 2007’s Gonzalez versus Carhart, again, to press the view that this is a really complicated and scientifically debated area. And young people are really struggling with this, and they continue to struggle, and there’s an ethical problem. Not just a legal problem, but an ethical problem here. So that was one note. And then there was this really interesting, I guess, colloquy that he went off on where he’s talking about Bostock, which he’s very much like, I don’t agree with Bostock. I want to limit Bostock to the Title VII context. And he notes, I thought quite ominously, that if Bostock were to apply in the context of the Equal Protection Clause for gender, It would also then apply in the context of race, and that would call into question the constitutionality of the Chief Justice’s very narrow concession in SFFA versus Harvard, that although universities can’t consider race in the admissions calculus, applicants are free to discuss, possibly in an essay, quote, how race has affected their lives. And according to Justice Thomas, quote, under Bostock’s reasoning, such an essay is permissible only if it could survive our daunting strict scrutiny standards. So it seemed very like mafia boss, like nice admissions essay, if you can keep it. Would hate to see it swimming with the fishes.

Kate Shaw Right, shame if something happened to it. Say hello to my little friend.

Leah Litman Is that how it read to you? It’s like, if you want to take it there, we can go there.

Kate Shaw Yeah, yeah, no, it’s definitely threatening. So like, if you thought SFFA was bad enough, Thomas clearly wants to make it worse still. And also like, how even is he talking about applying some kind of strict scrutiny to individual essays? Like, what is he even saying? But here’s the crazy part. The federal courts will make admissions decisions, Sure, or just Thomas personally. But what’s crazy is that the more alarming writing, as alarming as Thomas’s was, actually wasn’t his concurrence. It was the separate writing by Justice Barrett, literally trolling Jodie Cantor in the New York Times, who wrote a very interesting profile about Barrett. And Barrett’s like, oh, yeah, I’m an independent thinker. How you like me now? So basically She’s like, I was like…

Melissa Murray It was like Usher, Amy Coney Barrett.

Kate Shaw Yeah, so she writes separately, totally unnecessarily, but is just moved to take the position that the Sixth Circuit held that transgender individuals do not constitute a suspect class, that is a factually correct claim descriptively, but then she goes on to say, and it was right to do so. So she writes, joined by Thomas, she suggests Alito is on board with this. She says, quote, yeah, we know that, but in case we weren’t sure, she writes, Alito, just as Alito would likewise hold that transgender persons do not qualify as a suspect or quasi-suspect class. So she wants you to know that this is the view of three members of the court. And she goes out of her way to answer a question the court left open. Does heightened scrutiny apply? No, completely gratuitous writing.

Leah Litman Yeah, and so this is concerning because it would mean that a law that just said trans people can’t get health care would not trigger heightened scrutiny, as if laws that specifically targeted the transgender community would be treated as presumptively constitutional and fine. And as Kate, you are suggesting, why do this? What is the point? Why say do more harm? Like you had the reasoning in the majority to uphold the law. Why go on and add, by the way, I would be OK with states specifically and explicitly going after the trans community as such? All of the concurrences make clear they would go beyond what the majority said and did. That’s already going to hurt trans people. But the concurrency said they would cast aside the various possible limits the majority placed on its reasoning. They just needed the world to know that they would allow more harm, potentially more targeted invidious discrimination that’s directed at the trans

Melissa Murray I know we talked about this with Chase a little bit, but I just want to underscore, I think she seems to be gesturing toward a wholesale reappraisal of the rubric for determining who are suspect classes. And she really emphasized here, as she did at Oral Argument, the importance of a history of discrimination, but specifically de jure discrimination, so legal discrimination. And it made me wonder if she was hitching her wagon to folks like Justice Kavanaugh and Justice Alito, who have talked at length in other cases like Espinosa and Carson versus Macon about the history of the Blaine amendments as evidence of longstanding anti-Catholic discrimination in the legislative process. And so it made me wonder if she’s joining them and laying the groundwork for religious conservatives or Catholics to be considered a suspect class for purposes of equal protection and whether there is potentially a foot. Some kind of campaign to maybe limit the scope of suspect class status for groups that are currently recognized as such.

Kate Shaw And one more thing I will say, I remember her seeming skeptical of claims that the trans community hadn’t been subject to discrimination at the oral argument, and this should just be a reminder to us to not put too much stock in the way she asks questions because she often turns around and does either sort of falls into line or even writes beyond her conservative colleagues, even where she seems more reasonable in her questions.

Leah Litman But as to the question, Melissa, are they laying the groundwork to say that religious conservatives, they’re the suspect class and everyone else is not, I kind of think probably slash maybe they have already fashioned so much of the law around that idea. Why not make it official? And again, not just the New York Times piece from earlier in the week, but how about all of those Amy Barrett famous moderate takes we have been subjected to for the last year.

Kate Shaw Yeah, I mean, obviously, this is not an executive power case. So we will see, right? Like, there is maybe a distinction, which is she is as or more conservative than her colleagues when we’re talking about these kinds of constitutional questions, but structural separation of powers issues, maybe she is still gettable. I, obviously we need to see what comes down in the rest of the terms. Good on structure, bad on rights. I mean that actually may be, like where we are right now with Justice Barrett.

Leah Litman [AD]

Kate Shaw Maybe one more thing to remind listeners of is actually we’re talking obviously about the Constitution and equal protection. There isn’t any discussion in the majority opinion of the other original challenge to the law, which is that it violates the rights of parents to access medically appropriate care for their kids, which was a claim originally brought below, but just wasn’t raised in the cert petition or presented to the court here. And I don’t read anything in this opinion as foreclosing that sort of future challenge. It’s one you could imagine a principled version of this court, right, those are carefully chosen words, actually siding with. There’s nothing that prevents that claim from being brought and succeeding in a future case. Just you know this case obviously decides both Tennessee and similar laws which are restricted to the prohibition of care for trans kids are now given the blessing of this court.

Melissa Murray Strict scrutiny listener, Brian, slid into our DMs to actually ask a question exactly about that. He notes that the parental rights argument could be very successful in this context, but that it could be very risky in other contexts, that the emphasis on parental rights could be deleterious in the context of vaccinations, education, even conversion therapy bans. And so I guess one question we might dig into is how do you balance the risks that inherent in broaching a parental rights argument. Above my pay grade? It’s a really good question. I think this is something that’s going to occupy the folks who are going to bring litigation over the next couple of years. I mean, it could be a winning argument, but it could also be a wining argument on the other side in other contexts.

Leah Litman Although maybe even if it’s a winning argument, it’s not clear that that would be necessary for the courts to rule for the parental rights claims and all of those other cases.

Melissa Murray Correct. All right. We should also note there was a trolledo concurrence, and this was peak trolledo because this concurrence literally could have been an email. He didn’t need to do this, but he wanted to do that. So that’s important to recognize. Justice Alito opens the separate writing by insisting that, quote, a party claiming that a law violates the Equal Protection Clause because it classifies on the basis of sex cannot prevail simply by showing that the law draws a distinction on the of gender identity. Rather, such a plaintiff must show that the challenge law differentiates between the two biological sexes, male and female.” He said that with his whole chest, just so you know. He also adds that discrimination on the basis of sex has to be overt and intentional, which, again, I think echoes some notes that the majority was sounding and seems to be about narrowing the prospect of disparate impact claims in the context of sex discrimination. And that’s really worrying as well. So I guess only disparate impact for abortion bans, like when you think about all the black women who have had abortions, but nowhere else.

Kate Shaw Yeah, that’s basically right. So we’ve alluded to this already, but Justice Sotomayor has the main dissent. She is joined by Justice Jackson in full and Justice Kagan in part. The only place they really differ is that Justice Kagon says she wouldn’t apply the heightened review standard to determine whether the law is constitutional since the lower court, the appeals court, hadn’t applied that standard.

Melissa Murray The majority and some of the concurrences emphasize the need to commit this fraught and unsettled debate to the democratic process and democratic deliberation. So I just want to note that is more Dobbs-like reasoning and language. And Justice Sotomayor, I think, was responding to that in her statements, in her dissent. She also seemed to be referring back to a statement she made at Oral Argument where she noted that transgendered people, which is a group that constitutes around 1% of the population at large, are not going to have the numbers to be able to actually vindicate their interests in the political process. So turning this over to democratic deliberation or debate is not the deliberation that is actually going to result in. Vindicating their rights is actually going to subordinate them even further. And so I think that’s a big part of her dissent, sort of just making clear that this might not be a situation where courts leave this to the democratic process, but that courts might actually have to intervene because this is truly a minority group in need of protection.

Leah Litman Yes, so unhappy pride to all. That is all we have time for for this episode. As Justice Sotomayor said in her dissent, quote, by retreating from meaningful judicial review exactly where it matters most, the court abandons transgender children and their families to political whims. With sadness, I dissent. End quote. And that seems like a good place to leave it.

Kate Shaw Strict Scrutiny is a Crooked Media production, hosted and executive produced by Leah Litman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rowell, Michael Goldsmith is our associate producer, audio support from Kyle Seglin and Charlotte Landes, music by Eddie Cooper, production support from Madeleine Herringer, Katie Long, and Ari Schwartz, Matt DeGroot is our head of production, and thanks to our digital team, Ben Hethcote and Joe Matoski. Our production staff is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com slash at strict scrutiny podcast. If you haven’t already, be sure to subscribe to strict scrutiny in your favorite podcast app so you never miss an episode. And if you wanna help other people find the show, please rate and review us, it really helps.