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 is much to discuss about "animus" but my own tentative view is that animus is one of those doctrines that seems really helpful in one-off cases that don't tidily fit into other doctrinal boxes, but quickly becomes unworkable when one tries to systematize and generalize it -- what counts as animus versus legitimate moral disagreement, how does one decide if animus is present, etc.
> 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.
This is mixing up two meanings of race. Our particular racial categorization scheme is socially constructed. But whether a given person qualifies as a given race under our current categorization scheme is almost entirely immutable and is almost always identifiable at birth.
> 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.)
The important aspect of race as a suspect class is not how the individuals self-identify; it's how they are categorized by those who would discriminate against them. For instance, black Jamaicans and new Nigerian immigrants may have very little shared cultural identity, but they were identically affected by Jim Crow's invidious, de jure discrimination, and that shared categorization by others is what equal protection will prohibit.
> Also, not all Black people are even easily identifiable as Black; we have an increasingly mixed race population with white-passing Black people.
Right. Honestly, Hispanic Americans are probably a clearer example of the challenges here; something like 50% of the great-grandchildren of Hispanic immigrants no longer identify as Hispanic, and are not treated by society as Hispanic. There are definitely some cases where it's pretty unclear at birth whether someone will be categorized as a given national origin by society. There's definitely a line drawing problem, because ANY suspect class has at least a few edge-cases.
But we can't certify literally all possible suspect classes on that basis; line drawing problems don't require us to throw up our hands in surrender because the differences aren't absolute. You can look at the prevalence of these things.
For instance, what percentage of people classified as black (according to a putative discriminatory scheme) at birth would actually fall into de jure discrimination under the scheme as an adult? I'd say 98-99%.
What percentage of people, having once qualified for the discriminatory scheme as black, would eventually not qualify as black under the same scheme? I'd say <0.5%.
That's very, very different from trans-identity, where it's entirely non-predictable from birth and has ~8-13% of people detransition (depending on how you define it.) If you have to draw an immutable-characteristic line somewhere (as case law indicates), drawing it between race and trans status actually makes a lot of sense.
The best argument for trans status being a suspect class that I can see is actually its parallel to religion. Does anyone think religion is immutable? Or identifiable at birth? I'm confused about why religion wasn't pushed as a parallel in oral arguments when the justices were asking about immutability.
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.
I guess the hypo that I'd be interested here is one that's far more applicable to the case. What if a state banned doctors and pharmacists from prescribing any medication to anyone over 80 years old in the state? That would follow the logic in this case to a T. It's a universally applicable standard, it targets based on age, its targeting a specific medical procedure, assigning medication, it has a compelling interest in saving the government money and resources in the state's pharmacies, it similarly implicates the rights of doctors to treat their patients, there isn't a strong history of de jure discrimination against people over 80, age is not a constitutionally protected class, etc. It's a hypo as close to the original case as possible, but I do have to imagine the justices would find a way to come out against it instead. But I'm curious what those legal grounds would be?
It can be hard to understand the scope of certain decisions. For example, based on the logic of Dobbs, it seemed that states could ban all sorts of treatments that only affect women (e.g., prevent treatment for ovarian cancer or cervical cancer).
Based on the logic of Skrmetti, how easy it is for the government to win on rational basis review, and the inconclusive nature of Footnote 3 in response to the dissent's menstruation hypothetical, Skrmetti appears to give the government the legal right to ban all sorts of people from services and rights. A few examples:
- Transgender people from receiving any healthcare at all or attending school
- Girls from attending school (e.g., anyone who might have, has or had the ability to menstruate cannot attend school)
- Black people from voting (e.g., anyone who has a greater than 6% chance of having the sickle cell trait cannot vote).
It will be interesting to see how far states or the federal government push the possibilities and how the courts respond.
Thanks for replying. I don't take much comfort in "reserved". Trinity Lutheran had the footnote to the effect of "this case is just about playground resurfacing". Look at how much more expansive SCOTUS' religious freedom decisions have been since then, often citing the foundation of Trinity. It doesn't seem like a stretch that current SCOTUS will soon require public funding of religious schools and causes.
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 is much to discuss about "animus" but my own tentative view is that animus is one of those doctrines that seems really helpful in one-off cases that don't tidily fit into other doctrinal boxes, but quickly becomes unworkable when one tries to systematize and generalize it -- what counts as animus versus legitimate moral disagreement, how does one decide if animus is present, etc.
> 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.
This is mixing up two meanings of race. Our particular racial categorization scheme is socially constructed. But whether a given person qualifies as a given race under our current categorization scheme is almost entirely immutable and is almost always identifiable at birth.
> 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.)
The important aspect of race as a suspect class is not how the individuals self-identify; it's how they are categorized by those who would discriminate against them. For instance, black Jamaicans and new Nigerian immigrants may have very little shared cultural identity, but they were identically affected by Jim Crow's invidious, de jure discrimination, and that shared categorization by others is what equal protection will prohibit.
> Also, not all Black people are even easily identifiable as Black; we have an increasingly mixed race population with white-passing Black people.
Right. Honestly, Hispanic Americans are probably a clearer example of the challenges here; something like 50% of the great-grandchildren of Hispanic immigrants no longer identify as Hispanic, and are not treated by society as Hispanic. There are definitely some cases where it's pretty unclear at birth whether someone will be categorized as a given national origin by society. There's definitely a line drawing problem, because ANY suspect class has at least a few edge-cases.
But we can't certify literally all possible suspect classes on that basis; line drawing problems don't require us to throw up our hands in surrender because the differences aren't absolute. You can look at the prevalence of these things.
For instance, what percentage of people classified as black (according to a putative discriminatory scheme) at birth would actually fall into de jure discrimination under the scheme as an adult? I'd say 98-99%.
What percentage of people, having once qualified for the discriminatory scheme as black, would eventually not qualify as black under the same scheme? I'd say <0.5%.
That's very, very different from trans-identity, where it's entirely non-predictable from birth and has ~8-13% of people detransition (depending on how you define it.) If you have to draw an immutable-characteristic line somewhere (as case law indicates), drawing it between race and trans status actually makes a lot of sense.
The best argument for trans status being a suspect class that I can see is actually its parallel to religion. Does anyone think religion is immutable? Or identifiable at birth? I'm confused about why religion wasn't pushed as a parallel in oral arguments when the justices were asking about immutability.
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.
I've always admired Judge Sutton's attention to facial and as-applied issues in constitutional litigation.
I guess the hypo that I'd be interested here is one that's far more applicable to the case. What if a state banned doctors and pharmacists from prescribing any medication to anyone over 80 years old in the state? That would follow the logic in this case to a T. It's a universally applicable standard, it targets based on age, its targeting a specific medical procedure, assigning medication, it has a compelling interest in saving the government money and resources in the state's pharmacies, it similarly implicates the rights of doctors to treat their patients, there isn't a strong history of de jure discrimination against people over 80, age is not a constitutionally protected class, etc. It's a hypo as close to the original case as possible, but I do have to imagine the justices would find a way to come out against it instead. But I'm curious what those legal grounds would be?
It can be hard to understand the scope of certain decisions. For example, based on the logic of Dobbs, it seemed that states could ban all sorts of treatments that only affect women (e.g., prevent treatment for ovarian cancer or cervical cancer).
Based on the logic of Skrmetti, how easy it is for the government to win on rational basis review, and the inconclusive nature of Footnote 3 in response to the dissent's menstruation hypothetical, Skrmetti appears to give the government the legal right to ban all sorts of people from services and rights. A few examples:
- Transgender people from receiving any healthcare at all or attending school
- Girls from attending school (e.g., anyone who might have, has or had the ability to menstruate cannot attend school)
- Black people from voting (e.g., anyone who has a greater than 6% chance of having the sickle cell trait cannot vote).
It will be interesting to see how far states or the federal government push the possibilities and how the courts respond.
I think this is just what the Court's response in footnote 3 is intended to deny -- or at least to explicitly distinguish as reserved.
Thanks for replying. I don't take much comfort in "reserved". Trinity Lutheran had the footnote to the effect of "this case is just about playground resurfacing". Look at how much more expansive SCOTUS' religious freedom decisions have been since then, often citing the foundation of Trinity. It doesn't seem like a stretch that current SCOTUS will soon require public funding of religious schools and causes.