The Supreme Court Just Teed Up a Major Ruling on Transgender Athletes
“This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field,” he wrote. “The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements.”
As I noted last month, Roberts’s decision is not exactly persuasive: The Tennessee law was drafted to deny medical treatments that transgender people use to transition and affirm their gender identities. The ruling seemed to be more of a product of the conservative wing’s own internal fissures over transgender rights than anything else. Only three of the court’s conservative members—Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett—indicated in concurring opinions that they would have rejected a new suspect classification for transgender Americans.
Barrett and Alito, in separate opinions, argued that “transgender status” did not meet the court’s traditional test for recognizing a suspect class. (Thomas joined Barrett’s opinion.) They argued that it was not an “immutable characteristic” since it was not identifiable at birth, that its members had not been historically excluded from the democratic process or faced de jure discrimination, and that it was not a “discrete group” since, in Barrett’s words, “the category of transgender individuals is ‘large, diverse, and amorphous.’”
It is not clear if that view commands a majority of votes on the Supreme Court, however. Roberts, Gorsuch, and Justice Brett Kavanaugh implicitly declined to join the other conservatives’ opinions in Skrmetti, either because they disagreed with them outright or because they found them unnecessary to resolve the case. The court’s three liberal justices, on the other hand, appear willing to extend the Fourteenth Amendment’s protections to transgender Americans as a group—and Roberts et al. didn’t join them, either.
