I've posted a draft article on the Supreme Court's Skrmetti decision on SSRN. I argue that this harmful decision represents the worst sort of legal formalism, but does not predetermine the results in other transgender rights cases or eviscerate sex discrimination law. papers.ssrn.com/sol3/papers....

Oh dear. RIP to one of the great ones, as a scholar and as a person.

Devastating

It was an honor to be part of the UCI Law Supreme Court term in review event with Mario Barnes, Courtney Cahill, Erwin Chemerinsky, and Mark Joseph Stern. @mjsdc.bsky.social youtu.be/Zj3T7ZAxjYM?...

To understand this moment, we need more investigative journalism into the right's "war on gender ideology," so we can better understand what led to this wave of anti-transgender laws and their connection to anti-feminist and LGBTQ rights movements more broadly. www.nytimes.com/2025/02/08/m...

I think the frame of not obeying in advance is exactly the way to think about it. As with so many other things, the vector is going in a bad direction. But slowing it down makes a huge difference in protecting real people right now.

My heart is with those who have been harmed by the Skrmetti decision and those who have no faith in this Supreme Court. This thread is meant to provide support for those who would continue to fight despite Skrmetti and those who wish to resist demands to obey in advance.

And Skrmetti says nothing about disability discrimination claims, like the one that prevailed in Williams v. Kincaid (4th Circuit). (Thanks to @ezrayoung.bsky.social for pointing this one out). glad-org-wpom.nyc3.cdn.digitaloceanspaces.com/wp-content/u... 2/2

Two more important notes on Skrmetti's limits. It does not mean that legislatures can simply frame rules enforcing sex stereotypes at a higher level of generality, i.e., requiring men and women to do jobs "consistent with their sexes," to avoid heightened scrutiny. It's limited to health care. 1/2

Great explanation from @chasestrangio.bsky.social on the legal arguments that remain to challenge anti-transgender policies after Skrmetti. Do not obey in advance!

I don't agree. Skrmetti applies narrowly to classifications based on "treatments" and "medical uses" for purposes of treating gender dysphoria. It is very important to the majority that this law targeted medical treatments that "are uniquely bound up in sex." We do not need to read this broadly.

As a matter of formalistic logic, a sex classification is a sex classification, even if the law contains other classifications. But on p.5 of the opinion, the Court says the age limit is important to its holding, even though no party contested it. So it must be doing work. Let's take them seriously.

An important thread on today’s Skrmetti decision from my colleague, @jessicaclarke.bsky.social—one of the leading sex discrimination scholars in the country.

Thank you David. Please everyone--do not overread Skrmetti, and do not obey in advance!

More later as I continue to process this opinion. End.

More in the weeds: Skrmetti does not endorse the "circular" reasoning of the Sixth Circuit that in order to constitute a sex classification, a law must also constitute stereotyping, invidious discrimination, or unfair treatment. Justice Sotomayor explains this in her dissent: 12/x

Nor does Skrmetti change the fact that many of Trump’s executive actions against transgender people violate our separation of powers—only Congress has the power to legislate and appropriate funds under our Constitution. 11/x law.justia.com/cases/federa...

It was very important to the Court that Tennessee’s laws seemed to be motivated by interests in children’s health. But we know the Trump Administration’s actions are motivated by sex stereotyping and transphobia, because they usually say the quiet parts out loud. 10/x

Skrmetti only holds that Tennessee’s law does not classify based on sex. Other laws and executive actions may still be invalid if they are motivated by sex stereotyping or transphobia, under Arlington Heights and Romer v. Evans. 9/x

Skrmetti does not reverse federal cases holding that transgender people are a suspect class. Only three justices--Alito, Thomas, and Barrett—reached the question of whether trans people are a suspect class. The Roberts opinion does not reach it: 8/x

Nor does Skrmetti have anything to say about whether Bostock applies to statutes other than Title VII, such as the Affordable Care Act (see, e.g., Doe v. Snyder, 9th Circuit, ) or Title IX (see Grimm v. Gloucester, 4th Circuit). 7/x

Only Alito and Thomas say Bostock never applies to Equal Protection. They do not have a majority. Skremetti does not automatically reverse federal cases applying Bostock to new contexts like restrooms, sports, or identification documents. Nor does it apply to adults. 6/x

Skrmetti does not even overrule decisions holding that Bostock applies to Equal Protection—instead, it distinguishes Bostock on the ground that Tennessee’s law classifies based on *“medical use” for gender dysphoria,* which the Court thinks is different than sex or being transgender, and *age.* 5/x

Health care bans and other laws targeting transgender people may still violate state and local nondiscrimination laws. Skrmetti does not automatically apply to state laws. oag.ca.gov/system/files... 4/x