David B. Cruz (University of Southern California Gould School of Law) has posted Invisible Bastards: Nonmarital Children, Transgender People, And Equal Protection on SSRN. Here is the abstract:
In United States v. Skrmetti, the Supreme Court considered an equal protection challenge to a Tennessee law prohibiting provision of healthcare to transgender people for the purpose of affirming their gender. An ideologically-divided Court voted 6-3 to reject the constitutional challenge. The Court’s opinion contended that Tennessee’s law did not classify on the basis of sex nor on the basis of transgender status, was subject only to rational basis review, and satisfied that standard. Some of the majority justices wrote separately to reject the plaintiffs’ argument that antitransgender discrimination should be subject to heightened equal protection scrutiny under the Court’s precedents. No opinion in Skrmetti-not the majority, nor any concurrence, nor either dissent-even mentions the Court’s numerous decisions applying heightened scrutiny to legitimacy discrimination, that is, discrimination against “illegitimate” children or “bastards” as the common law dubbed them. Bastards remain invisible in Skrmetti. Yet were the decisions about them seen and addressed by the Justices, the case for heightened scrutiny for anti-trans discrimination would be much harder to defeat. We can and should learn lessons from the “illegitimate” regarding numerous aspects of heightened equal protection scrutiny doctrine, including ones concerning visibility of a trait, discreteness of a group, histories of discrimination, and political power.