Marc Spindelman (Ohio State University Moritz College of Law) has posted United States v. Skrmetti: On Realism, Reason, and Hope on SSRN. Here is the abstract:
United States v. Skrmetti—upholding Tennessee’s ban on gender-affirming medical care for transgender youth against equal protection challenge—delivers a major legal setback to trans people’s rights and thus LGBTQIA+ rights, more generally. Skrmetti joins other recent Supreme Court decisions in actively transforming the constitutional terrain on which trans and other LGBTQIA+ rights now sit. A careful reading of the Court’s opinion demonstrates its main rationales for rejecting trans sex equality and trans suspect classification claims are seriously deficient. At key moments, Skrmetti fails to justify itself in relation to existing Supreme Court equality precedents. This failure includes Skrmetti’s deep misalignment with the law-bound egalitarian social-reality principle that has been a mainstay of the Court’s modern Fourteenth Amendment jurisprudence. These deficiencies result in dangers not only for trans and other LGBTQIA+ equality rights, but also the equality rights of members of other social groups, notably those rights secured in the name of race and sex equality under law.
Problematic and dangerous as Skrmetti is, there is still reason for a politics of hope in its wake—if one searches for it. These politics include hope for law as a project of reason. Skrmetti’s shortcomings demonstrate specific vulnerabilities in today’s anti-trans-equality positions. Skrmetti, intending to justify its conclusions, has unwittingly supplied important resources for advancing the reality-based and rationalist case for trans and LGBTQIA+ equality—if not now at the Supreme Court, then in the court of public opinion and politics. Someday, pro-trans changes in these settings may provide additional authority for questioning Skrmetti back at the Court. The same hope-based politics find additional grounding in the remarkable strength and resilience of trans and larger LGBTQIA+ communities and movements. The work thus flags a parting question Skrmetti itself re-raises. Will trans and larger LGBTQIA+ movement struggles achieve the liberty, equality, and freedom they seek via Supreme Court-focused and constitutionally oriented movement politics? Skrmetti looms large when trans and LGBTQIA+ movement struggles are framed in these ways—but perhaps larger than necessary. So much anyway is indicated by the perspective provided by other forms of progressive trans and LGBTQIA+ movement freedom dreaming aiming for a fully trans- and LGBTQIA+-inclusive American future, including in politics and law.
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