SCOTUS Upholds Tennessee Ban on Gender-Affirming Care for Minors

In this emergency episode, Chase Strangio of the ACLU joins the pod to talk about today’s decision in United States v. Skrmetti. Then, Kate, Leah, and Melissa dive deep into the opinion, the various flavors of awful found in the concurrences from the majority, and what this decision might mean more broadly for the future of sex-based discrimination under the Equal Protection Clause. Get tickets for STRICT SCRUTINY LIVE – The Bad Decisions Tour 2025! 3/6/26 – San Francisco 3/7/26 – Los Angeles Learn more: http://crooked.com/events Order your copy of Leah's book, Lawless: How the Supreme Court Runs on Conservative Grievance, Fringe Theories, and Bad Vibes https://www.simonandschuster.com/books/Lawless/Leah-Litman/9781668054628 Follow us on Instagram https://www.instagram.com/strictscrutinypodcast/?hl=en, Threads https://www.threads.net/@strictscrutinypodcast, and Bluesky https://bsky.app/profile/strictscrutiny.bsky.social

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• 0:00Leah Litman?

  Strict Scrutiny is brought to you by Americans United for Separation of Church and State. You don't destroy 250 years of secular democracy without gutting precedent, shattering norms, and dropping a few billion. The same people and groups that backed Project 2025 are part of a larger shadow network that's relentlessly pushing to impose a Christian nationalist agenda on our laws and lives. Church-state separation is the bulwark blocking their agenda. One of the last bastions of church-state separation is our public school system. So they're pushing vouchers everywhere. They're arguing for religious public schools. Yes, you heard that right, religious public schools, at the Supreme Court in a case we've discussed on the pod. If you're listening to us, you're

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• 0:57Speaker 01

  Mr. Chief Justice, may it please be afforded. It's an old joke, but when a hard-earned man argues against two beautiful ladies like this, they're going to have the last word.

• 1:08Speaker 02

  She spoke not elegantly, but with unmistakable clarity. She said, "I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks."

• 1:40Leah Litman?

  Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We are coming to you today with an emergency episode about the opinions the court released on Wednesday, June 18. In particular, we are going to talk about United States versus Skrmetti, the case involving a challenge to Tennessee's law that prohibits gender-affirming care for transgender youth. So the Supreme Court upheld that Tennessee law in the decision, and we're going to get into some of the weeds of the case in a bit, but first we We are extremely fortunate to be joined at this time by Chase Strangio, Deputy Director for Transgender Justice and Staff Attorney at the ACLU, who argued the case on behalf of the parents of the minors. Chase is just going to be with us for a bit at the beginning, so we wanted to spend this first time getting his thoughts,

• 2:25Leah Litman?

  since he has many, many things to attend today. So, the big question in the case was whether the Tennessee law triggered what's called heightened scrutiny, basically whether the law warranted courts looking closely at the law's justifications and whether the law served those justifications, or whether courts should instead show near-total deference as they upheld the law. Chase, on a quick read, the majority opinion is obviously harmful to trans kids, the trans community, and trans lives by allowing these restrictions on gender-affirming care, at least for minors, to go into effect. But it's not as bad as it could have been. Could you explain why that is and why it matters?

• 3:02Speaker 03

  Yeah, thank you for having me. And obviously, I want to just start with an acknowledgement of the fact that there are many, many transgender young people and their families who are already living their worst nightmare in this country right now. And the fact that the court just legitimized that is devastating, and I don't want to in any way minimize the harms to these families. And at the same time, there are ways that the decision goes out of its way to be narrow. And so, we are holding on to that language because it matters for how we fight other fights in the future. So, the court is very clear that they have decided that this is a type of line drawing that is not sex-based, which I think is fundamentally wrong. But they also say that this is not a law

• 3:46Speaker 03

  that discriminates based on transgender status. Now, I also think that is wrong. However, what that means is the court did not reach the question of whether or not transgender status independently warrants heightened scrutiny. So, first of all, there are two circuits that have already held that it does. Those decisions, that law is still good law. And so, in other contexts where you have government discrimination against transgender people, you still can argue and will have heightened scrutiny in the Ninth and Fourth Circuits. I think that is important. The next thing that is important is unlike the Sixth Circuit, The court does not opine on whether or not Bostock applies outside of Title VII. The Sixth Circuit had said for no real reason that Bostock was limited to Title VII.

• 4:30Speaker 03

  And the Supreme Court clarifies here that they're just not reaching that question. And so it is not a broad decision on a very narrow interpretation of Bostock, which the Sixth Circuit had offered. And just to be clear, the Sixth Circuit also had said that trans status does not trigger heightened scrutiny. And so that's another way this is much narrower than the lower court opinion. And then there's other language in the decision that makes it clear that other line drawing that would be based on so-called inconsistency with sex outside of the medical context would also be sex-based. And so you have a lot of language in this opinion to build off of in litigation in other contexts.

• 5:12Speaker 03

  And then I think perhaps most relevant for the healthcare context, the court does make sure to say that when there is evidence of Nvidia's targeting of a group of people, that that doesn't necessarily mean that this deferential review would come out the same way. And so the line of cases like Romer and Cleburne and Moreno, obviously still good law. And when we think about what the Trump administration executive action targeting the trans community looks like, the animus is pretty clear on the surface. And so that sort of saves those cases, even under the equal protection clause, though many of them have other doctrinal theories. So that's some of what I'm seeing when looking at this opinion and how it'll play out.

• 5:53Melissa Murray?

  So Chase, I think I'm taking a little bit of a darker read on things. And in particular, not surprising, in particular, I'm concerned about what this decision means more broadly for the future of sex-based discrimination under the equal protection clause. It is true that this court didn't go the full measure, but it did really double down on Godoldig versus Aiello. That is, that 1970s era case where the court was looking at an insurance program that discriminated on the basis of pregnancy and concluded that because not all women are pregnant, it's not a species of sex-based discrimination. And the court here seemed to re-entrench that kind of logic.

• 6:35Melissa Murray?

  These kinds of laws don't necessarily discriminate on the basis of trans status. It doesn't necessarily, it's about medical use and there are biological distinctions that might be drawn. I mean, like they're making the same kinds of arguments that were earlier made in Gudoldig. In your view, what does that mean going forward for how we think about the equal protection clause, particularly in areas like abortion, where people have been trying to make the argument that restrictions on abortion are a species of sex-based discrimination, which this court flatly says is not the case?

• 7:08Speaker 03

  Yeah, I mean, I think one of the most damaging things about Justice Alito's opinion in Dobbs, other than all of it, which is all damaging, but the fact that it goes out of its way to revive Gudoldig in the paragraph that says in essence that the theory of heightened scrutiny for the abortion restrictions at issue in Dobbs fails under Gudoldig, that in essence, when you're regulating a medical procedure that only one sex can undergo, it is not sex discrimination triggering heightened scrutiny. You know, I remember when that opinion was leaked and I saw the Gudoldig reference. I thought, this is catastrophic. I mean, this is truly going after equal protection doctrine. I will say, I do think that there, you know, I think it's footnote three in the opinion

• 7:51Speaker 03

  that in essence does limit Gudoldig to this medical conditions context, which, so now we have, you know, we have Gudoldig, we have Dobbs, we have Skrmeti. The court is clearly trying to go out of its way to say sex-based regulations in medicine, when you can cabin them into what I think of as this very disingenuous frame that derives from Gudoldig will not trigger heightened scrutiny. I'm not sure that Skrmeti offers anything different than what we got from Alito in Dobbs. It's just another affirmation, which is in and of itself troubling. So that's how, that's how I read it. Again, I think it's so completely analytically wrong. And here, I think what they haven't really answered for is the fact

• 8:36Speaker 03

  that as to, at the level of the individual, this is also not even likely. Like Godaldig because the if you take one person and look at whether they would be treated differently if they had a different sex, the answer is they would be and under J E B, under V M I, that should trigger heightened scrutiny. And I think the ways in which the chief's opinion, much like Chief Judge Sutton's opinion, is just disingenuous and poorly reasoned is is very clear on its face.

• 9:06Melissa Murray?

  Justice Barrett's concurrence, which seemed, I don't know that it came out of nowhere. I wasn't necessarily surprised by it, but it did seem she was responding to a question she had asked you in oral argument about whether or not the trans community had ever faced a history of discrimination, as she put it, and she emphasized de jure discrimination. And she wrote in this concurrence today, which was joined by Justice Thomas, that she would not view the trans community as a quasi suspect class because there was no history of historic discrimination by law. And she made a comparison to other groups that are legally disfavored. And she talked about sort of the usual suspects. But I wonder if she wasn't also maybe thinking

• 9:47Melissa Murray?

  about Christian conservatives in this particular moment as well. And I wonder what you thought of that concurrence, which seemed almost gratuitous, given that the court had already decided they weren't going to go down that road.

• 10:02Speaker 03

  Yeah, it was certainly gratuitous and it was very disheartening. I will say that I was never convinced that Justice Barrett was a viable fifth vote for a lot of different reasons, though I think that there are reasons to believe she will be a constraining vote on some aspects of executive power, but certainly not all of them, as we've seen, that when it comes to abortion, when it comes to LGBT people, even just some of her questioning in the Mahmoud arguments, it's very clear to me that she has a very negative, and I would say almost theological orientation towards trans existence. And a Christian right wing theological orientation towards trans existence, I should say, there are lots of beautiful theological orientations

• 10:45Speaker 03

  towards trans people. And so she writes in this very gratuitous way, it is unnecessary, and it is Also just wrong. There is a long history of de jure discrimination against transgender people. And I tried to identify a few examples for her at argument, including the very criminalization for decades of our existence and our ability to go out into public. One would think that that might count. And as Justice Sotomayor says, that you also don't need to look much further than what's going on right now to see that we have laws across both the state level and then obviously coming from the federal government that are explicitly and directly targeting transgender people. So that then raises the question that what do you need de jure discrimination going back

• 11:30Speaker 03

  a certain period of time? What if all of a sudden there's, you know, I don't know, hundreds of laws targeting a community? Do you just throw up your hands and say no de jure discrimination, no heightened protection from the court? What is the point of a majoritarian check if the court can simply just look the other way? And separate and apart from the fact that she got the history wrong?

• 11:51Leah Litman?

  So we want to be respectful of your time, so we'll just ask you one more question, which is, do you have advice for litigants and courts who will be grappling with laws that harm the trans community going forward? And what can people do to help support the fight for transgender rights now?

• 12:10Speaker 03

  Yeah, I mean, I think one of the things that you can see in this opinion, that you could also see in the Sixth Circuit's opinion, is that they are pulling atmospherically from the culture, not from the record. And so we are all participating in creating that cultural context. We have a role to play in disrupting these harmful and false narratives about trans life. And there's very harmful stuff that's being said about trans people in this opinion that I hope people will feel galvanized to fight back. Because the more that trans people are targeted, the more we are collectively facilitating the retrenchment of gender norms more broadly, and that's going to harm us all. So that's sort of one point I would make just about the role we all have to play. And then when it comes to litigation, I think, you know, we are going to continue

• 12:55Speaker 03

  to litigate cases in federal court, in state court, there are many arguments. That remain available to us. And I think that it is very clear that this court is interested in narrowing the ability of individuals to vindicate their constitutional rights if they're not white, Christian men. But we aren't gonna stop because of that. And I hope people continue to push back.

• 13:18Leah Litman?

  Chase, thank you so much for taking the time to join us on an extremely busy day. We so appreciate your time and look forward to seeing the wonderful work we know you are going to do in fighting for trans rights going forward.

• 13:29Speaker 03

  Thanks, Chase. Thanks, guys.

• 13:37Leah Litman?

  Strict scrutiny is brought to you by NPR Politics Podcast. Okay, let's be real. There is so much going on in politics. Everything, all the time, all at once. It's hard enough keeping track of what's going on at the Supreme Court, but WTF is going on in Articles One and Two at the same time. That's why the NPR Politics Podcast is where I go to decode what goes down in Washington and what every decision out there might mean for me and you. Every day, the NPR Politics Podcast team will focus on one thing and boil it down to 15 minutes or less. Think of it as your political multivitamin. NPR is a huge public service. They help to provide crucial information to keep our citizenry

• 14:19Leah Litman?

  and our country educated at a time when that couldn't be more important. Honestly, it feels empowering and helps make me think I have a handle on things. Listen now to the NPR Politics Podcast, only from NPR, wherever you get your podcasts.

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• 15:29Kate Shaw?

  Okay, we are back. And I am bummed I had to miss out on the conversation with Chase. But the three of us wanted to do some additional kind of breaking down of some of the majority's reasoning and also the separate writings in the case. We will start with the majority opinion authored by Chief Justice Roberts and joined by all six Republican appointees. So the court's key reasoning regarding why the challenged Tennessee law does not discriminate on the basis of sex was that the law doesn't distinguish on the basis of sex, but rather on the basis of other characteristics, namely age and medical use. That is, according to the court, this is just a restriction applying only to minors and a restriction only on particular treatments for particular medical reasons, but not a distinction on the basis of sex.

• 16:11Leah Litman?

  This coded as both pretty dumb and disingenuous to me because by saying that the law is about age and medical use, you're acknowledging that a law can be multiple things at the same time and contain multiple classifications. And oh, by the way, this one has a sex classification, too. So the fact that it is those things doesn't mean it's not a sex classification.

• 16:32Melissa Murray?

  I like the whole idea of dumber and disingenuiser as the new hot summer movie from the Supreme Court. Absolutely fantastic.

• 16:40Leah Litman?

  I won't speculate as to which justice is dumber and which one is disingenuiser.

• 16:44Kate Shaw?

  There are so many candidates.

• 16:45Leah Litman?

  Feel free to guess.

• 16:46Melissa Murray?

  So many candidates. So the emphasis on medical use read, at least to me, like an interest in the so-called biological differences argument as a way of justifying sex-based discrimination. And that was a kind of logic that was used in cases like Gudaldegg, which the majority actually referenced at length here. So Gudaldegg was decided in 1974, and it upheld a California insurance program that discriminated on the basis of pregnancy by concluding that pregnancy-based distinctions were not sex-based distinctions because not all women got pregnant. And Gudaldegg was so obviously flawed that even Congress felt compelled to do something. So they passed the Pregnancy Discrimination Act of 1978, which said that pregnancy discrimination

• 17:29Melissa Murray?

  was a species of sex-based discrimination for purposes of Title VII. You know, some have argued that Goodoldig has effectively been overruled by cases like United States versus Virginia from 1996 and Hibbs from 2003, but this court seems really intent on bringing it back. And Goodoldig gets pride of place in this decision, as it did in Dobbs, when Justice Alito blew up the possibility that abortion restrictions were also a species of sex-based discrimination. The one silver lining, I will say here about this whole, you know, make Goodoldig great again, kind of line, is that the majority didn't seem intent on ghosting United States versus Virginia entirely, the way that Justice Alito did in Dobbs. The majority did-

• 18:13Kate Shaw?

  Or the way that Justice Alito suggested he would do so here. Yeah.

• 18:17Melissa Murray?

  No, true.

• 18:17Kate Shaw?

  He's on board, but Roberts is not.

• 18:19Melissa Murray?

  Roberts and the liberals and some of the other justices are, you know, like, yeah, Virginia is still good law, but it really is a precedent that they seem to say is about the possibility of relying unduly on sex-based stereotypes. And if you don't think something is a sex-based stereotype, then there's no role for Virginia to play here.

• 18:38Kate Shaw?

  Yeah, I mean, the triumphant return of Goodoldig, I mean, like, as Melissa was saying, not only was it repudiated by Congress when it amended the Pregnancy Discrimination Act, honestly, its reasoning until very recently was viewed as pretty ludicrously specious. It was like mocked in constitutional law courses. But of course, it is now back with a vengeance, one of the many terrible things in this cursed timeline. Also, as Sotomayor pointed out in dissent, the law bans medications that are used in, quote, "a manner inconsistent with sex." So that is about sex, that is sex-based, even more clearly than the pregnancy distinction in Goodoldig. But Roberts reasons, quote, "The court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny, and such an approach

• 19:20Kate Shaw?

  would be especially inappropriate in the medical context." So again, echoing what Melissa just said, this sort of casual insistence that laws involving medical care can permissibly draw distinctions on the basis of sex was a pretty obvious signal that to this court, virtually anything will go because biology, if we're talking about sex classifications. And that is really hard to square with the logic in some of the later sex discrimination cases, which make clear that invoking biological differences is not enough to justify a sex classification. And so while I was relieved that Virginia does get cited, and they're not explicitly retreating from heightened scrutiny for sex classifications, the internal contradictions, in the opinion, are impossible to ignore.

• 20:02Leah Litman?

  Yeah, and it's also pretty rich for a court that has gone all in on the anti-classification theory of equal protection to insist that a mere reference to sex isn't enough to trigger heightened scrutiny. And elsewhere, it did seem like the majority cut back on protections against gender stereotyping. So they wrote, quote, "A law that classifies on the basis of sex may fail heightened scrutiny if the classifications rest on impermissible stereotypes."

• 20:30Melissa Murray?

  Not the good stereotypes. Some stereotypes are okay.

• 20:34Leah Litman?

  No, but we do not subject the law to heightened review unless motivated by an invidious discriminatory purpose. So again, they seem to be saying, okay, to stereotype women and men permissibly.

• 20:43Kate Shaw?

  I just had the thought in this conversation that like the Ames case, right, the straight discrimination case, maybe they need to preserve some kind of heightened constitutional scrutiny for sex classification so men can bring claims.

• 20:54Leah Litman?

  Can't wait. You know, we don't want to de-emphasize or diminish the extent to which this decision is devastating for the trans community in particular, but this passage and others make very clear that we are all in this together because when they attack civil rights and civil liberties for one group, they are not going to stop there, which is just one of the many reasons why this decision of no rights, no liberties, just vibes and patriarchy is so concerning.

• 21:19Melissa Murray?

  That's a really good point about linked fates here. We should also talk, though, about the majority's reasoning as to why this isn't a classification based on gender identity, because that, to me, seemed to be the most disingenuous part of the opinion. So the court emphasized that the Tennessee law, quote, "does not exclude any individual from medical treatments on the basis of transgender status. Rather, it removes one set of diagnoses, among them gender dysphoria, from the range of treatable conditions." The court then notes that puberty blockers or hormones are still available to, quote, "treat other conditions in both trans and cis minors." And again, they rely extensively on that 1974 decision,

• 22:02Melissa Murray?

  Gudaldig versus Aiello. And it's just hard to sort of wrap your mind around what the court is doing here. Like, you know, everyone can get this, just not for this one thing, and therefore, it's not a sex-based classification.

• 22:17Leah Litman?

  Yeah, well, the logic in Gudoldig was the group that was excluded, pregnant people, sure, that was all women, but the group that could still access the state's disability benefits included both men and women. And it's the same logic here. It was hollow there, it's hollow here. And I think that should make this decision, like Gudoldig, eligible for a future anti-canon, because it is just so revealing the extent to which their worldview is really about rolling back the civil rights movement and taking us back to a time, which is Gudoldig, where laws that discriminated on the basis of sex did not even trigger heightened scrutiny. And their formalism about equality calls to mind previous anti-canon decisions

• 22:59Leah Litman?

  like Plessy versus Ferguson, where the court said separate but equal segregation wasn't race discrimination because it treated everyone the same. Or Korematsu, which upheld the internment of American citizens of Japanese descent, where the court said that was not invidious racial discrimination, but rather about national security interests. Or biological differences, or scientific medical uncertainty. Not really, but like, just insert a justification to paper over invidious discrimination seems to be the lesson. That list could go on. Bowers versus Hardwick upheld a ban on non-procreative sex. Trump versus Hawaii upheld Trump 1.0's travel ban, saying that wasn't a Muslim ban or discrimination on the basis of religion. And we'll get to the dissents in a second, but here, just because it's especially relevant,

• 23:40Leah Litman?

  I wanted to highlight this remarkable passage from Justice Sotomayor's dissent, where she underscores how the majority's reasoning would roll back major civil rights decisions. So she writes, quote, "Judicial scrutiny has long played an essential role in guarding against legislative efforts to impose upon individuals the state's views about how people of a particular sex or race should live or look or act. In a passage that sounds hauntingly familiar to readers of Tennessee's Brief, Virginia argued in Loving, that's the case that struck down bans on interracial marriages, that should this court intervene, it would find itself in a, quote, 'bog of conflicting scientific opinion and the desirability of preventing such alliances.' In such a situation, Virginia continued, 'It is the exclusive province of the legislature of each state to make the determination for its citizens

• 24:25Leah Litman?

  as to the desirability of a policy of permitting or preventing such interracial alliances,' end quote.

• 24:32Melissa Murray?

  So I just want to hit on one beat that you mentioned, Leah, and it just, it seems really lopsided to me. So at one point in the opinion, the majority talks about how the claimants have to show intentional invidious discrimination in order to prevail. And then with the same breath, they talk about how the state need only show that, you know, there's some sort of neutral rationale underlying the law, that it's not invidious racial discrimination. And it also seems, one, like it's gesturing toward disparate impact, but again, just sort of lopsided in terms of what the state has to establish and what the claimants do. So just something that I was thinking about with what you said and your citation of the Sotomayor dissent. Speaking of separate writings, though, we've

• 25:14Melissa Murray?

  got some big concurrences here. There are a lot of concurrences. So there, Justice Thomas wrote a concurrence, Justice Alito wrote a concurrence, and Justice Barrett wrote a concurrence. Surprisingly, one Neil Gorsuch was a silent sister at oral argument, and he remained a silent sister here as they cucked all over his opinion and bossed off. He had nothing to say.

• 25:34Leah Litman?

  The other great concur also managed to hold his tongue.

• 25:37Kate Shaw?

  I guess small blessings that we didn't have to re-encavinoc concurrence today. It's one of the only good things about this day.

• 25:44Leah Litman?

  Seriously.

• 25:45Melissa Murray?

  But we got to talk about some of these concurrences. And again, I guess this is time for another recurring segment of we need to talk about Justice Thomas's concurrence. So this conclarence, is that what we're calling it? Clar occurrence was a lot, a lot, a lot. So first of all, a couple of notes. There are no new ideas here. So Justice Thomas is simply recycling old arguments. So at one point, he talks about the idea that trans youth will come to regret their decision to treat gender dysphoria with medical interventions. And he recycles the logic of abortion regret that was used to great effect in 2007's Gonzalez

• 26:27Melissa Murray?

  versus Carhart, again, to press the view that this is a really complicated and scientifically debated area, and young people are really struggling with this, and they continue to struggle, and there's an ethical problem, not just a legal problem, but an ethical problem here. So that was one note. And then there was this really interesting I guess colloquy that he went off on where he's talking about Bostock, which he's very much like, I don't agree with Bostock. I want to limit Bostock to the Title VII context. And he notes, I thought, quite ominously, that if Bostock were to apply in the context of the Equal Protection Clause for gender, it would also then apply in the context of race. And that would call into question the constitutionality of the Chief Justice's very narrow concession

• 27:12Melissa Murray?

  in SFFA versus Harvard, that although universities can't consider race in the admissions calculus, applicants are free to discuss, possibly in an essay, quote, "how race has affected their lives." And according to Justice Thomas, quote, "Under Bostock's reasoning, such an essay is permissible only if it could survive our daunting strict scrutiny standard." So it seemed very like mafia boss, like, nice admissions essay, if you can keep it. Would hate to see it swimming with the fishes.

• 27:41Kate Shaw?

  Right. Shame if something happened to it.

• 27:43Melissa Murray?

  Say hello to my little friend, Bostock. Is that how it read to you? It's like, if you want to take it there, we can go there.

• 27:49Kate Shaw?

  Yeah, yeah. No, it's definitely threatening. So like, if you thought SFFA was bad enough, Thomas clearly wants to make it worse still. And also, like, how even is he talking about applying some kind of strict scrutiny to individual essays? Like, what is he even saying? But here's the crazy part.

• 28:08Melissa Murray?

  Stricter scrutiny for you.

• 28:09Kate Shaw?

  The federal courts will make admissions decisions. Sure, or just Thomas personally. But what's crazy is that the more alarming writing, as alarming as Thomas's was, actually wasn't his concurrence. It was the separate writing by Justice Barrett, literally trolling Jody Kantor in The New York Times, who wrote like a very interesting profile about Barrett. And Barrett's like, oh, yeah, I'm an independent thinker. How you like me now? So basically, she-

• 28:33Melissa Murray?

  It was like Usher, Amy Coney Barrett. Watch this.

• 28:35Kate Shaw?

  Yeah. So she writes separately, totally unnecessarily, but is just moved to take the position that the Sixth Circuit- Held that transgender individuals do not constitute a suspect class. That is a factually correct claim descriptively. But then she goes on to say, and it was right to do so. So she writes, joined by Thomas, she suggests Alito is on board with this. She says, quote,

• 28:58Leah Litman?

  He is.

• 28:59Kate Shaw?

  Oh, yeah, we know that. But in case we weren't sure, she writes, Alito, Justice Alito would likewise hold that transgender persons do not qualify as a suspect or quasi suspect class. So she wants you to know that this is the view of three members of the court. And she goes out of her way to answer a question the court left open. Does heightened scrutiny apply? No, completely gratuitous writing.

• 29:19Leah Litman?

  Yeah. And so this is concerning because it would mean that a law that just said, trans people can't get health care, would not trigger heightened scrutiny, as if laws that specifically targeted the transgender community would be treated as presumptively constitutional and fine. And as Kate, you are suggesting, why do this? What is the point? Why say do more harm? Like, you had the reasoning in the majority to uphold the law. Why go on and add, by the way, I would be OK with states specifically and explicitly going after the trans community as such? Like, all of the concurrences make clear they would go beyond what the majority said and did. That's already going to hurt trans people. But the concurrences say they would cast aside the various possible limits the majority placed on its reasoning.

• 30:02Leah Litman?

  Like, they just needed the world to know that they would allow more harm, potentially, potentially more targeted invidious discrimination that's directed at the trans community.

• 30:12Melissa Murray?

  And I know we talked about this with Chase a little bit, but I just want to underscore, I think she seems to be gesturing toward a wholesale reappraisal of the rubric for determining who are suspect classes. And she really emphasized here, as she did at oral argument, the importance of a history of discrimination, but specifically de jure discrimination, so legal discrimination. And it made me wonder if she was hitching her wagon to folks like Justice Kavanaugh, Justice Alito, who have talked at length in other cases like Espinosa and Carson versus Macon about the history of the Blaine Amendments as evidence of longstanding anti-Catholic discrimination in the legislative process. And so

• 30:55Melissa Murray?

  It made me wonder if she's joining them and laying the groundwork for religious conservatives or Catholics to be considered a suspect class for purposes of equal protection and whether there is potentially afoot some kind of campaign to maybe limit the scope of suspect class status for groups that are currently recognized as such.

• 31:15Kate Shaw?

  Yeah. And one more thing I will say, I remember her seeming skeptical of claims that the trans community hadn't been subject to discrimination at the oral argument. And this should just be a reminder to us to not put too much stock in the way she asks questions because she often turns around and does either sort of falls into line or even writes beyond her conservative colleagues, even where she seems more reasonable in her questions.

• 31:38Melissa Murray?

  Yeah. But as to the question, Melissa, like, are they laying the groundwork, you know, to say that religious conservatives, they're the suspect class and everyone else is not, I kind of think probably slash maybe they have already fashioned so much of the law around that idea. Why not make it official? And again, you know, not just the New York Times piece from earlier in the week, but how about all of those Amy Barrett famous moderate takes we have been subjected to for the last year?

• 32:08Kate Shaw?

  Yeah. I mean, obviously, this is not an executive power case, so we will see, right? Like, there is maybe a distinction, which is she is as or more conservative than her colleagues when we're talking about these kinds of constitutional questions, but structural separation of powers issues, maybe she is still gettable. I, obviously, we need to see what comes down in the rest of the term cases.

• 32:26Melissa Murray?

  It's a hell of a take. Good on structure, bad on rights.

• 32:28Kate Shaw?

  Yeah. I mean, that actually may be like where we are right now with Justice Barrett.

• 32:32Leah Litman?

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• 33:56Speaker 05

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• 34:47Kate Shaw?

  Maybe one more thing to remind listeners of is actually, we're talking, obviously, about the Constitution and equal protection. There isn't any discussion in the majority opinion of the other original challenge to the law, which is that it violates the rights of parents to access medically appropriate care for their kids, which was a claim originally brought below, but just wasn't raised in the cert petition or presented to the court here. And I don't read anything in this opinion as foreclosing that sort of future challenge. It's one you could imagine a principled version of this court, those are carefully chosen words, actually siding with. But there's nothing that prevents that claim from being brought and succeeding in a future case. Just, you know, this case, obviously, decides both Tennessee and similar laws, which are restricted to the prohibition of care for trans kids,

• 35:31Kate Shaw?

  are now, you know, given the blessing of this court.

• 35:33Melissa Murray?

  Strictly listening listener Brian slid into our DMs to actually ask a question exactly about that. He notes that the parental rights argument could be very successful in this context, but that it could be very risky in other contexts, that the emphasis on parental rights could be deleterious in the context of vaccinations, education, even conversion therapy bans. And so I guess one question we might dig into is, how do you balance the risks that are inherent in broaching a parental rights argument?

• 36:03Leah Litman?

  Above my pay grade.

• 36:04Melissa Murray?

  It's a really good question. I mean, I think this is something that's going to occupy the folks who are going to bring litigation over the next couple of years. I mean, it could be a winning argument, but it could also be a winning argument on the other side in other contexts.

• 36:18Leah Litman?

  Yeah. Although maybe even if it's a winning argument, it's not clear that that would be necessary for the court to rule for the parental rights claims in all of those other cases. So.

• 36:30Melissa Murray?

  Correct. Correct. All right. We should also note there was a Trolito concurrence, and this was peak Trolito, because this concurrence literally could have been an email. He didn't need to do this, but he wanted to do this. So that's important to recognize. Justice Alito opens the separate writing by insisting that, quote, "A party claiming that a law violates the equal protection clause because it classifies on the basis of sex cannot prevail simply by showing that the law draws a distinction on the basis of gender identity. Rather, such a plaintiff must show that the challenged law differentiates between the two biological sexes, male and female." He said that with his whole chest, just so you know. He also

• 37:13Melissa Murray?

  adds that discrimination on the basis of sex has to be overt and intentional, which, again, I think echoes some notes that the majority was sounding and seems to be about narrowing the prospect of disparate impact claims in the context of sex discrimination. And I think that's really worrying as well. So I guess only disparate impact for abortion bans, like when you think about all the black women who have had abortions, but nowhere else.

• 37:38Leah Litman?

  Yes.

• 37:38Kate Shaw?

  Yeah, that's basically right. So we've alluded to this already, but Justice Sotomayor has the main dissent. She is joined by Justice Jackson in full and Justice Kagan in part. The only place they really differ is that Justice Kagan says she wouldn't apply the heightened review standard to determine whether the law is constitutional since the lower court, the appeals court, hadn't applied that standard.

• 37:56Melissa Murray?

  The majority in some of the concurrences emphasize the need to commit this fraught and unsettled debate to the democratic process and democratic deliberations. So I just want to note that is more Dobbs-like reasoning and language. And Justice Sotomayor, I think, was responding to that in her statements in her dissent. She also seemed to be referring back to a statement she made at oral argument where she noted that transgendered people, which is a group that constitutes around 1% of the population at large, are not going to have the numbers to be able to actually vindicate their interests in the political process. So turning this over to democratic deliberation or debate is not the deliberation

• 38:40Melissa Murray?

  that is actually going to result in vindicating their rights, is actually going to subordinate them even further. And so I think that's a big part of her dissent, sort of just making clear that this might not be a situation where courts leave this to the democratic process, but that courts might actually have to intervene because this is truly a minority group in need of protection.

• 39:00Leah Litman?

  Yes. So unhappy pride to all. That is all we have time for, for this episode. As Justice Sotomayor said in her dissent, quote, "By retreating from meaningful judicial review exactly where it matters most, the court abandons transgender children and their families to political whims. With sadness, I dissent," end quote. And that seems like a good place to leave it.

• 39:26Kate Shaw?

  Strict Scrutiny is a Crooked Media production, hosted and executive produced by Lea Littman, Melissa Murray, and me, Kate Shaw. Produced and edited by Melody Rauel. Michael Goldsmith is our associate producer. Audio support from Kyle Seglan and Charlotte Landis. Music by Eddie Cooper. Production support from Madeline Heringer, Katie Long, and Ari Schwartz. Matt DeGroot is our head of production. And thanks to our digital team, Ben Heathcote and Joe Motosky. Our production staff- is proudly unionized with the Writers Guild of America East. Subscribe to Strict Scrutiny on YouTube to catch full episodes. Find us at youtube.com/AtStrictScrutinyPodcast. If you haven't already, be sure to subscribe to Strict Scrutiny in your favorite podcast app so you never miss an episode. And if you want to help other people find the show, please rate and review us. It really helps.

• 40:17Speaker 07

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• 40:45Speaker 05

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