Originalist sin
But the opinion in
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This is important: The Constitution's Equal Protection Clause prohibits discrimination on the basis of sex, and challengers argued that the law is unconstitutional because it bars certain treatments (for example, hormone treatments) from being given to trans youths while allowing them to be given to cisgender minors.
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But according to Roberts, the law contains no sex classification at all. The only classifications he finds on the face of the law are for age (applying only to minors) and 'medical use' (banned for gender-affirming care but OK to treat other conditions.
I'm sorry — what?! What happened to the text saying what it said when it was said?
But Roberts's approach allowed the court to dodge its obvious constitutional inconsistency. By pretending that the law doesn't classify by sex at all, Roberts avoided having to decide whether laws that discriminate on the basis of gender on their face require a higher level of scrutiny by courts in order to stand.
Sex-based laws would require a state to prove it has an important government interest in enacting the law and that it is substantially related to serving that interest. We legal heads call that 'intermediate scrutiny.' If it's not a sex-based law, a state need only demonstrate a rational basis for passing the law — a much lower legal hurdle to clear.
In the court's view, Tennessee cleared that hurdle. It doesn't matter that the conclusion that this is not a sex-based law defies all credulity. (It's so silly, in fact, that even Justice Samuel Alito in his concurrence declined to join that aspect of the court's reasoning.)
The downside of this ruling, aside from the fact that it endangers trans kids in Tennessee and other states with similar bans: The justices opted not to use this as an opportunity to rule that laws targeting trans or other LGBTQ folks must meet a higher constitutional standard, just as any other sex-based classification.
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The upshot: The majority did not hold that laws targeting trans or other LGBTQ folks
never
get intermediate scrutiny. But here's the chaser: Three justices — Amy Coney Barrett, Clarence Thomas, and Alito —
would have held
that transgender status never triggers heightened scrutiny. The court is two votes away from that being the law of the land.
Given that you can't spell transgender without gender, that makes no constitutional sense.
That's not originalism. It's terrifying.
This is an excerpt from
, a newsletter about the Supreme Court from columnist Kimberly Atkins Stohr.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at
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