Neil Siegel (Texas A&M University School of Law) has posted Legalist Versus Realist Accounts of United States v. Skrmetti ( University of Illinois Law Review, Forthcoming 2026) on SSRN. Here is the abstract:
Although the Supreme Court is increasingly adopting an understanding of sex discrimination that is biologically focused and/or formalistic, this Article argues that the Court does not consistently apply that conception when doing so benefits transgender Americans. The Court’s conclusion in United States v. Skrmetti that no facial sex classification exists in Tennessee’s law banning gender-affirming care for transgender-but not cisgender-minors is irreconcilable with its conclusion five years earlier in Bostock v. Clayton County that Title VII’s prohibition on sex discrimination prohibits employers from firing employees just because they are transgender. Perhaps tellingly, only Justice Gorsuch, Bostock’s author, and Chief Justice Roberts were in the majority in both cases. After explaining why a legalist account cannot persuasively distinguish Skrmetti from Bostock, this Article develops a realist one that fares better. In 2020, the year Bostock was decided, President Donald Trump did not condemn transgender Americans; in his re-election campaign, he did not mention them. In 2024, by contrast, Trump and the Republican Party won control of the political branches in part by riding a wave of hostility to transgender Americans that began in conservative state legislatures in 2021. Given current Republican Party politics, even a limited decision in Skrmetti in favor of the transgender plaintiffs likely would have elicited harsh political attacks on those Republican-appointed Justices who had enabled such a decision. As with the Court’s stated allegiance to originalism and textualism, so too its commitment to a biologically centered and/or formalistic understanding of sex discrimination can be trumped when the political pressure seems too strong for some Justices to resist.
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