Transgender Rights Are in Grave Peril at the Supreme Court

The Supreme Court is currently debating whether to treat gender identity as a suspect classification, in the pending case United States v. Skrmetti. (More on that one later.) But even when a group is not considered a suspect classification, it can still receive a measure of constitutional protection from laws that target it. In the 1996 Romer v. Evans, the justices overturned a Colorado constitutional amendment that denied any antidiscrimination protections to gay, lesbian, or transgender residents.

Justice Anthony Kennedy, writing for the court, held that the justices need not apply a heightened level of judicial scrutiny because the amendment could not survive even under rational-basis scrutiny, one of the easiest thresholds for the government to meet. “Its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class that it affects; it lacks a rational relationship to legitimate state interests,” he wrote in his majority opinion.

A federal district court in Washington state ultimately sided with the soldiers in Schilling, who asserted a range of equal-protection and due-process violations. Judge Benjamin Settle largely agreed with them by echoing Kennedy’s reasoning in Romer. He noted that the government had provided no evidence to support its claims that transgender soldiers, as a whole, “lack honesty, humility, and integrity,” and instead told the courts that they must automatically defer to the Pentagon’s judgment.