The Lives of Transgender Americans Are in the Supreme Court’s Hands

As I noted in June, the Supreme Court’s approach to this case from the start all but suggested the outcome. The justices chose a case where the Sixth Circuit Court of Appeals had written a narrower ruling that emphasized judicial humility, in contrast to the Molotov cocktails usually lobbed by the neighboring Fifth Circuit. The court also took up only the petition brought by the Justice Department, effectively transmuting the case into a partisan dispute between the Biden administration and Tennessee Republicans.

A rebuke of transgender rights from the high court would join other headwinds for the movement. President-elect Donald Trump’s campaign leaned heavily on anti-transgender ads in the closing weeks of the election, defying previous assumptions by both parties that the issue had little electoral salience. House Republicans have promised to block Delaware Representative-elect Sarah McBride, who is set to be the first transgender member of Congress when she takes her seat next month, from using women’s bathrooms in the Capitol.

But the court’s ruling in Skrmetti, whenever it comes down, could be far more impactful on the lives of transgender people than anything that happens in Congress or the White House. Some of the justices’ questions on Wednesday, especially from Alito and Barrett, cut to whether transgender Americans, as a group, can invoke the Equal Protection Clause when faced with discrimination. A case in which the chief justice respected a transgender lawyer’s preferred pronouns could end with a ruling that holds that transgender Americans, constitutionally speaking, do not exist.