New Podcast Episode: Low Horse
Dan and I discuss Skrmetti
In the latest episode of the Divided Argument podcast, Low Horse, Dan and I focus almost entirely on Thursday’s decision in United States v. Skrmetti. (See also Richard’s great post yesterday.)
If you want to comment on the episode, in addition to or instead of emailing us at the podcast address, you are also welcome to leave a comment on this post, and to engage with others’ comments! (We always welcome emails at the podcast address but thought we’d experiment with giving listeners another forum to engage with one another as well.)
I’m unsure about one of the majority’s explanations for how SB1 does not classify on transgender status. I understand it to claim that not all transgender people want to access medical treatment, bolstering the point that SB1 targets specific medical treatments rather than transgender status (citing Geduldig as well). In short, because a subset of the transgender population is not targeted by the law, the law doesn’t classify on transgender status.
Isn’t a ban on interracial marriage still a racial classification despite the fact that many Black people will never marry a non-Black person?
I also think the Carolene Products Footnote 4 analysis reveals real weaknesses of judges in engaging in certain methodologies. Barrett writes that transgender status is not discrete or easily identifiable, that it is not immutable, and that trans experiences are so vast and diverse as to not constitute one particular thing. I think that argument doesn’t even work for race if you start digging deeper. First of all, race is a social construct so it’s somewhat of a misnomer to call it “immutable” or something you’re born as. Furthermore, there is no one particular “Black” identity (try to tell the Caribbean diaspora, Black Southerners, newcomer African immigrants, and other Black groups that they constitute a sufficiently singular identity.) Also, not all Black people are even easily identifiable as Black; we have an increasingly mixed race population with white-passing Black people. I can’t convince myself that Black people and transgender people are substantively different under the footnote 4 analysis (bar de jure discrimination maybe.) I think it shows that the Court is not well-suited to engage in a social scientific discussion about the contours of racial and gender identity.
To me, the Court played word games to obscure the sex classification and transgender status classification at issue in order to reach the result they wanted. Period.
I also wish you guys discussed the question of animus. It seems like a much easier way to resolve this case (although maybe it wouldn’t have got the majority to the result it wanted.)
There was a point Sutton made in the appellate decision that struck me as very powerful, and I was a bit surprised to see it didn't come up here. Here's how I remember it.
The dissent says that SB1 classifies on the basis of sex because boys are prohibited from getting estrogen, while girls are not, and similarly girls are prohibited from getting testosterone, while boys are not. Grant for the sake of argument that this is right--the ban on cross-sex hormones triggers heightened scrutiny because it classifies on the basis of sex.
The ban on puberty blockers doesn't work that way. Both boys and girls take Lupron to block puberty. So there isn't some medication that's allowed for boys, but not for girls, or vice versa. Here, you really can only explain how the ban works in terms of the purpose of the medication. Everyone is prohibited from getting Lupron, except if they have specific conditions (namely, precocious puberty) unrelated to gender transitioning.
So the suspect classification argument couldn't work to justify the relief that was being sought (namely, not just striking down the ban on cross-sex hormones, but also the ban on puberty blockers).
I admit this seems a bit silly--could it really be that banning cross-sex hormones raises constitutional questions that are not raised by banning puberty blockers? But if anything I think that point is probably helpful for the majority--easier, I think, to argue that banning puberty blockers clearly doesn't trigger intermediate scrutiny, and to then try to get from there to saying that neither does banning cross-sex hormones--though I admit I'm not at all sure.