A Conversation About Skrmetti With Ezra Young & Naomi Schoenbaum
Trans lawyers criticize both Roberts’ opinion and the ACLU’s strategy in the case that allowed state laws to discriminate against trans youth in healthcare.
by Riki WIlchins
This interview was conducted for Assigned Media by Riki Wilchins (@rikiwilchins.bsky.social) whose latest book is: BAD INK: How the NYTimes SOLD OUT Transgender Teens
Introduction: A little legal background may be helpful for non-lawyers in the discussion that follows. The point at issue in Skrmetti was not directly whether Tennessee’s ban on pediatric care was legal, but rather whether it involved discriminating on the basis of sex, since (for example) a cisgender girl can access puberty blockers in a situation where a transgender girl could not. Sex discrimination is illegal, and courts must give such any laws that is based on distinguishing individual’s by their sex a greater degree (aka “heightened”) scrutiny to ensure they aren’t discriminatory. For decades, U. S. courts at every level have made no exceptions to this.
Assigned Media: In your recent Slate article on Skrmetti, Naomi, you say that ignoring the Right’s war on trans rights will come at the expense of its war on women, especially on sexual equality. Because that relies on “biological differences” for justification, and the Right has historically used this to smuggle what would otherwise be clearly recognizable as sex discrimination into laws and rulings—as indeed we see with Skrmetti.
Naomi Schoenbaum: The only way that the Court could reject the claim that transgender discrimination was sex discrimination here was to narrow the meaning of sex discrimination. And it essentially did two things. First it said, We have to pay attention to the medical context, and in that context simply referencing “sex” doesn't mean we need [to apply heightened scrutiny]. That creates an exception to what had always been the rule for sex based laws, which is that courts have always closely scrutinized them. So now end up with this new hole in sex discrimination law. We don't know exactly what it will mean, but it opens up the possibility that depending on the context, you can draw a sex based line and the court wouldn't even give it a close look.
Second, Skrmetti says, We have to look at the law’s purpose and here medical treatment is involved and these treatments are for different purposes. So it's not sex discrimination. But that had never been the rule before. They could have done this with interracial marriage, saying, You're in an interracial marriage which is fundamentally different than a same-race marriage. And banning it is not discriminating on the basis of race, But the court has never said that.
So the Court added all these added all new distinctions that limit the ability of sex discrimination law to be applied.
Ezra Young: I agree 100%. It's hard to see what the Court is doing here in good faith other than making sex discrimination harder to identify. What the Court misses is there are actually two sex classifications here. There is a sex assigned at birth classification, and there's a classification for the purposes of medical treatment. That's a compounded sex classification. The Court could have characterized the law that way, but inconveniently that would have meant they had to take a hard look at the case. And I think they weren't cool with little trans kids getting care, so they gave us an outcome-driven analysis.
On top of that, I think part of what they're traying to rationalize is basically gutting sex discrimination jurisprudence. Things that any normal person off the street, any lawyer, any law student would be like: I don't know what that is, but that’s sex discrimination of some kind. So I agree with what Naomi's saying: I'm concerned about what Skrmetti means for trans folks, but I'm also concerned about what it means for sex discrimination jurisprudence. The Court has mostly been getting a little bit better at sex discrimination cases, and things we would rightly fully see as sex discrimination were being caught as such. Now it's up in the air.
AM: Yet despite the perils for women’s equality law, we don’t hear howls of outrage from the women's rights community and national groups over Skrmetti. I keep wondering when the women's rights community is going to realize that this is their fight. And I fear they will only wake up after the Court used trans people as disfavored plaintiffs to punched a lot of large holes in sex discrimination law.
Schoenbaum: I 100% agree. For instance, I found Andrew Sullivan's recent New York Times essay to be Exhibit A on this. And there was a similar op-ed in the Washington Post. The thrust is: Trans rights has gone too far and they’re undermining gay rights and women's rights. This is exactly backwards. Legally it's all connected, as Skrmetti makes utterly clear. We see it in the politics of this, too: the same administration that is against trans rights, is also doing things to undermine gay rights and women's rights. It's the same legislatures passing restrictive abortion laws are passing the anti-trans laws and the Don't Say Gay laws.
AM: I continue to be astonished at how homonormative white gay men like Sullivan and all white lesbian TERFs are so glad to continue providing priceless, endless moral cover for Christian Right attacks on us just so they can satisfy their anti-trans animus. Don’t they realize they’re up next? The Right is already gaming how to get a state gay marriage law in front of the Supreme Court.
I’m a huge fan of the ACLU and Chase Strangio and their tireless commitment to this fight, but one of the criticisms of them was that they didn't come to Skrmetti loaded for bear. It’s as if this was such an open-and-shut case of sex discrimination that their posture during oral argument was, Can we just get past this and get to the point where you say, Yes, this law is based on sex distinctions and thus requires ‘heightened scrutiny?’ And they were somewhat taken aback and unprepared when the Court went veering off in other directions.
Young: I think part of what ACLU has done—and not just in this case but across issue areas—is trying to rocket docket cases [move cases quickly] with the intent of having some groundbreaking impact which oftentimes comes to the detriment of the group of people whose rights they're trying to vindicate.
The court judges are who they are. If I tell one of my clients, Oh, sorry, the judge we drew is impossible and you’re going to lose, I'd be a pretty crappy lawyer. That's not how it works. You do your best with who you draw on. The U.S. Supreme Court is actually fairly easy because you know all of their prior holdings on virtually everything. So they didn't actually try to win this case in front of the justices they had.
Like Justice Thomas, is not emphatically anti-trans. How do we know this? He was part of the unanimous decision in Farmer v Brennan which involved Dee Farmer, a trans woman. The Court found that the Eighth Amendment prohibits recklessly putting someone in danger while they're in prison. It held if you put a trans woman in a men's prison, inevitably they will be raped. Thomas was on that court in 1994. This stuff isn't new to him.
What the ACLU had to do was they had to figure out how to make a case speak to the justices. What they could have brought was answers to the obvious questions these justices were going to ask. For instance, Justice Barrett was inevitably going to ask, What is the history of trans discrimination? Does that matter? There have been anti-crossdressing laws. There's a long history of legislation for and against trans healthcare. But Chase was not prepared to make this argument. He did not do the work. The ACLU didn't do the work. And what we saw was not so much a conversation with the Court but Chase being asked the same entirely predictable questions over and over again, and he just had no means of answering it. They should have brought someone who is good at oral advocacy and Chase is not so good at oral advocacy. Remember, the ACLU asked to split time with the U.S. Solicitor General and I would have preferred he had more time. But if you read what happened, it was inevitable. This was the outcome they were going to get.
AM: As a non-lawyer, I certainly didn't think it was inevitable. I knew this Court didn’t want to find a right for trans kids to get care, but I couldn’t see how it could to look at a law that declared its purpose waw “to encourage minors to appreciate their sex” and “to prevent minors becoming disdainful of their sex” and still say, This bill doesn’t distinguish based on sex. How much more directly “because of sex” could it possibly be?
Young: But legal advocacy is more than just saying, It's so obvious. That's not how legal advocacy works. You have to know what the Court’s priors are, where they're going to push back, and have responses for all of those arguments. The day before Chase argued this case, I argued a case in front of the Texas Supreme Court, one of the most conservative courts in the nation, more conservative than the US Supreme Court.
What I did to prepare myself for that was read through all their jurisprudence and figure out all of the ins and outs of all the permutations. That's the nature of oral advocacy in this political environment.
Schoenbaum: I think there was a lesson for Bostock v Clayton County [where the court extended employment protection to LGBTQ+ people] that maybe was not heeded here. There was so much reliance as there was here, on what the lower courts had done and not enough thinking about how the Supreme Court might just do something totally different.
In Bostock, yes—we got a good result. But that good result was arrived at in a way that no lower court had done. The arguments put to the Supreme Court were all the same ones that had been put to the lower courts before. It shouldn't have been that surprising that the Supreme Court was not just going to accept their analysis. So that really have been a wake up call for litigating LGBTQ+ cases in front of this court. I certainly agree with Ezra on the litigation strategy there and that it missed an opportunity in terms of being realistic about what the Court would do.
Young: I think this goes back to Naomi's point that the ACLU thought sex classification would do all of the work. It couldn't. It could never do that, because it's possible that a sex classification could exist, and still be constitutionally okay provided it was within the purview of a state’s right to oversee health. Right? I don't think any of the amicus briefs filed in Skrmetti spoke to the limitations on the state power over health. That's a problem. Justice Thomas is the biggest fan of hard limits on state health power. He has a well-developed jurisprudence on this that could have been harnessed here. One problem with being trans and being part of a minority group is that other non trans people don't know a lot about our history or our medical care. So you really have to do your homework to educate the Court at every step. And frankly, that just wasn't done here. You can't just ride on one good idea that you will convince everyone: you have to cover all bases, all angles.
AM: I do question the implicit assumption someplace in the arguments that both of you are making that if we had just prepared better, we might have gotten a better ruling. But Robert’s majority opinion reached half a century back to a truly terrible 1974 decision, Geduldig v. Aiello, which somehow found that pregnancy discrimination didn’t discriminate against women because not all women get pregnant. Which is logically indefensible. And I have to wonder if maybe this was not after all a winnable case, even if we had come in loaded for bear and made the perfect arguments.
Young: You have to know the law backwards and forwards and one of the problems is so few law professors anymore specialize in sex discrimination jurisprudence. When those people don't exist, our students don't learn it. Other scholars can't pull our papers and run across these things to know it. So you end up with the national ACLU sending people up to the Supreme Court on a sex discrimination case and they don't know much about sex discrimination jurisprudence. That's bad. That's not good.
Schoenbaum: Maybe it's because you're a litigator and you put more faith in the power of litigation strategy. I don't as much, As you said in the beginning, I think Skrmetti was a very results-oriented outcome. The Court worked very hard not apply sex discrimination law. It could just have easily said that the easiest way to decide this case was to apply heightened scrutiny and then kick it back down and let the lower court look at it again to see whether it satisfied the heightened scrutiny test. They really went out of their way to avoid the heightened scrutiny. But if they kick it back down to the lower courts, they don't know what's going to happen. So this was the strategy to take if the Court had the political objective of allowing laws to stand and restricting all these rights. And that's what they accomplished.
AM: What Roberts’ opinion says is not factually true. He says “no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity or gender incongruence.” But we use hormones and blockers to treat cisgender kids who have contra sexual puberty —which IS a form of gender incongruence. A cis boy who gets breast development he wants to treat is not any different from a trans boy who gets breast development he was to treat—they are both experiencing contrasexual puberties. The only difference is their sex.
Schoenbaum: I completely agree with you. These are all different forms of gender affirming care. It's just that the Court agrees with rendering some forms of care and not others. So its reliance on the purpose of the care is just semantic, right? As Riki just said, you could call the permitted treatments for cis kids gender affirming care. A lot of people have pointed out that Court’s analysis is just extraordinarily weak. It’s very hard to understand it in any way that is not utterly purpose-driven.
AM: Well, that's something else that I saw in one analysis in Vox, that it’s badly written, doesn’t hang together, and Roberts seems to misread statutory language that he just quoted a paragraph or two earlier. Of all the criticisms about Roberts, one I've never heard is that he's a bad lawyer. But Vox says this is a poorly written, shabby piece of jurisprudence.
Young: It reads like one of his toss-away opinions. I agree Chief Justice Roberts is a pretty smart guy and he was a pretty smart lawyer. But in Skrmetti you see the sorts of analytical errors you’d get in law student essays.
AM: The Hill interviewed the head of Whitman-Walker Clinic, who said, look, this doesn't change anything: 25 states have bans on blockers or hormones therapy. There are 10 pending legal challenges to state bans that make discrimination claims—not based on sex—but on the Equal Protection Clause. There are other lawsuits like Montana’s, where state laws or state constitutions are at issue, which Skrmetti doesn’t affect. So we still have other legal avenues available to contest these bans.
Young: The fact that the case was framed as the right of trans kids to have hormone treatment, that's what makes it a loser. You cannot frame it like that. It should have been framed as the state has no power to dictate medical treatment to individual kids. We don't allow the state to dictate specific medical treatment to a specific child that is contraindicated by a doctor and against the wishes of that child’s parents. But one of the things our movement screwed up is we frame it as a right that no one wants to protect.
AM: Thank you both very much.
Naomi Schoenbaum is the William Wallace Kirkpatrick Dean's Research Professor of Law at George Washington University’s School of Law.
Ezra Young is a lawyer in private practice who has served in a variety of positions, including assistant professor at Cornell Law School and director of impact litigation for the Transgender Legal Defense and Education Fund.