Court to roll back well-established 14th Amendment rights as part of the Republican Party’s war on trans people

Many people over the years have approvingly cited Ruth Bader Ginsburg’s argument that Roe would been harder to overrule if it had been based on the equal protection clause rather than the due process clause of the 14th Amendment. It’s remarkable how much traction this argument got even though it was transparently wrong — nobody without a professional obligation to do so reads Supreme Court opinions or cares about their legal reasoning, and among elite lawyers the number of opponents of Roe would would be persuaded by a different argument for its outcome are “none.” And we saw this vividly in Dobbs, when Alito dismissed the equal protection argument in a quick paragraph — you have to be incredibly high on lawyer brain supply to think he would have had the slightest pause in overruling Roe had it rested on equal protection grounds.

At oral arguments yesterday, Alito cited his cursory dismissal of the equal protection rationale in Dobbs to argue that it, rather than Bostock, should be the relevant precedent in determining whether Tennessee’s anti-trans law should be subject to heightened scrutiny:

It’s a question of the application of the Equal Protection Clause of the Fourteenth Amendment, and the Court has addressed the — the question of how an equal protection claim should be analyzed when the law in question treats a medical condition or procedure differently based on a characteristic that is associated with just one sex. And that was Geduldig in 1974, reaffirmed in Dobbs in 2022.

And neither Bostock nor Dobbs saw any connection between the Bostock reasoning and the Geduldig/Dobbs standard. Bostock did not mention Geduldig, and Dobbs did not mention Bostock. So why should we — we look to this Bostock-type reasoning here?

Geduldig is the holding, widely ridiculed by non-misogynists everywhere, that discrimination against pregnant people does not constitute discrimination against women.

With Republican elites having taken a hard anti-trans turn the outcome of this case is overdetermined, and the result will be to undermine 14th Amendment protections against gender discrimination in general:

The most important thing to understand about Tennessee’s law is that it explicitly draws lines based on a patient’s sex assigned at birth. If a child who is assigned male at birth is prescribed testosterone by their doctor, Tennessee permits that child to receive that treatment. But a child who is assigned female at birth may not.

Indeed, while Matthew Rice, the Tennessee solicitor general defending his state’s law, tried many times to deny that this law classifies based on sex, he eventually admitted that it did after being pressed by Justices Sonia Sotomayor and Jackson.

Jackson, for example, asked Rice whether this law would permit a boy who seeks testosterone because he wants to deepen his voice and otherwise enhance his masculinity to receive that treatment, and Rice eventually conceded that, under the specific law at issue in this case, the boy could. Rice then eventually admitted that, if a girl sought the same treatment for the same purpose — to deepen her voice and to make her body appear more masculine — Tennessee’s law would prohibit her from receiving the treatment.

This matters because, in United States v. Virginia (1996), the Supreme Court held that “all gender-based classifications” are subject to “heightened scrutiny,” meaning that the law is treated as presumptively unconstitutional and the state has to prove that its law was not enacted for impermissibly sexist reasons. Some laws survive this heightened scrutiny, if those laws are grounded in real differences between the sexes and not in prejudice or stereotypes. But, under Virginia, any law that draws lines based on sex in any way whatsoever receives this higher level of review from the federal courts.

Significantly, neither the Biden administration, which argued against Tennessee’s law in the Supreme Court, nor the ACLU, which represents families that want their transgender children to have access to care, asked the Supreme Court to definitively strike down Tennessee’s law right now. Rather, the sole issue before the Court is whether to send the case back down to a federal appeals court that previously refused to apply the heightened scrutiny required by Virginia.

But many of the justices appeared determined not to apply Virginia to this case. Roberts, for example, warned that there are “medical nuances” in this case that weren’t present in Virginia or some of the Court’s other previous gender discrimination cases. And he suggested that the courts should take a more deferential approach to state lawmakers in cases involving medicine because judges are not good at making medical judgments.

Kavanaugh echoed Roberts’s thinking, suggesting at one point that the Constitution does not take sides on a “medical and policy debate.”

There are few things more irritating that the justices who feel free to substitute their judgment for that of federal agencies on a consistent basis claim false modesty in particular cases where they like what the state has done. At any rate, the Court holding that the Court can simply make arbitrary carveouts to US. v. Virginia is a new weapon that it will feel free to wield in favor of any Republican culture war du jour.