Here’s My Exchange With Slate’s Mark Joseph Stern About ‘United States v. Skrmetti’

Discussion is good

Last week I expressed some frustration with the response, from liberal legal types, to the Supreme Court’s 6–3 decision in United States v. Skrmetti, which upheld Tennessee’s SB1, a ban on puberty blockers, hormones, and surgery as treatments for minors with gender dysphoria in that state.

While the decision wasn’t unexpected, some on the left treated it as an astonishingly bad-faith act of illogic. I wasn’t seeing that. And as sometimes happens on X, I probably came in hotter than I needed to:

Having a trust-falling-through-the-floor-of-the-sub-basement moment (again!) reading liberal legal writers’ takes on Skrmetti. I need someone to pull me out of this because I’m very suspicious that someone like me, with no legal expertise, can be identifying such basic errors!

I proceeded to explain that I wasn’t making any normative claim about the law itself (more on this in a bit), but rather that I was just baffled by the reasoning I was seeing. The argument the plaintiffs were attempting to make, that Skrmetti discriminated (or classified — again, see below) on the basis of sex and therefore warranted what is known as heightened scrutiny, made very little sense to me in light of the specifics of the law and how youth gender medicine works.

One of the legal thinkers I was referencing was Mark Joseph Stern of Slate, whose response to Skrmetti was headlined “John Roberts’ Anti-Trans Opinion Is a Garbled Mess. It’s Easy to See Why.” (It varies from publication to publication, but writers often have no say in their headline.)

Katie and I subsequently recorded and published a paywalled segment of Blocked and Reported in which I discussed Skrmetti and mentioned Stern and his article. But before that episode went up, I heard from the man himself: Stern, who had been tipped off to my posts on X, wrote me a polite email defending his position. I asked if I could post his email to that episode’s show notes, and also suggested a back-and-forth I could post to this newsletter. He agreed, and you’ll find the whole thing — his email, my response, and his response to my response — below. My copy editor cleaned up a few minor things and added some links, but otherwise this all appears as it did in our respective inboxes.

Thanks to Mark for the civil exchange, and of course I’m interested to hear, in the comments section or via email, from any legal experts with thoughts on all this. I am still skeptical of Mark’s position but, again, I came in too hot. These conversations would be much more fruitful if they occurred as this one did rather than amid the firecrackers and heat and smoke of social media.

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Hi Jesse,

Although I’m not on Twitter anymore, a friend flagged your tweet about my coverage of Skrmetti and your question about sex discrimination. I would like to help explain why SB1 does, indeed, discriminate on the basis of sex in a way that triggers heightened scrutiny under the equal protection clause.

First, I’ll note that while the term “sex discrimination” is more common in media coverage, the more accurate legal standard is “sex classification.” (The court’s canonical cases, like Reed v. Reed and U.S. v. Virginia, favor this term.) The two can be used interchangeably, but I think “classification” is a little clearer for the purposes of addressing your arguments.

You, and the Skrmetti majority, are undoubtedly correct that SB1 classifies on the basis of medical condition. But to do so, at least under many circumstances, it must also classify on the basis of sex. I see that you’re suspicious of one way I’ve been explaining this: a cis boy can receive testosterone to develop more male features, while a trans boy cannot. I still think that example works as a legal matter, even if such treatment for a cis boy is uncommon in real life. (Although — is it? Don’t doctors prescribe testosterone to cis boys with delayed puberty to jump-start secondary sex characteristics that are fundamentally cosmetic, like facial hair?) So set it aside.

Consider instead an adolescent cis boy who experiences gynecomastia, unwanted but harmless growth of breast tissue. Under SB1, he may still receive testosterone therapy to reduce his breasts. Not because the excessive growth of tissue is medically harmful, but because he does not wish to appear to have breasts, as they are incongruent with his gender identity. But an adolescent trans boy may not, under SB1, receive the same treatment to achieve the same effect — reduction of breasts that are incongruent with his gender identity. Why?

I take it you would say: Because the trans boy seeks the treatment for gender dysphoria, whereas the cis boy seeks it for gynecomastia. True enough, but irrelevant for the purpose of deciding whether the law classifies on the basis of sex. That’s because, in addition to classifying on the basis of medical condition, the law classifies on the basis of sex to determine who may receive the same treatment to achieve the same outcome. An adolescent’s access to testosterone to reduce breast growth turns on the sex they were assigned at birth. Those assigned male can get testosterone; those assigned female cannot. Thus, the law classifies patients on the basis of sex, and triggers heightened scrutiny under the equal protection clause. Put differently, to determine the medical condition — gender dysphoria or gynecomastia — a doctor must consider the patient’s sex assigned at birth. That consideration, under longstanding precedent, compels heightened scrutiny.

It is not uncommon for laws that classify on the basis of sex to classify on other bases as well. For instance, in Morales-Santana, the law at issue classified on the basis of a parent’s physical presence in the United States. That, all agree, was permissible. But the law also classified on the basis of the parent’s sex. And that, the court held, created a “gender line” that triggered heightened scrutiny. There is a similar dynamic at play in Skrmetti. Yes, the law dictates what treatments a minor may receive based on their medical condition. But to do so, it must classify minors on the basis of sex. And that, under the court’s precedents, should be enough to trigger heightened scrutiny.

I will note that, as you know, the question of whether a law classifies on the basis of sex is only the first step of the analysis. If the answer is yes, the next step is to apply heightened scrutiny by asking whether the law serves important governmental interests and is substantially related to the achievement of those interests. I think your objections probably lie in this second step; to return to my example, you may think the government has a strong interest in preventing minors with gender dysphoria from altering their bodies, and you believe SB1’s restrictions are sensibly drawn to encompass those cases while allowing cis minors to receive the same treatments. But even if that is correct (and I won’t opine on it here), SB1 still classifies on the basis of sex, requiring the application of heightened scrutiny to survive constitutional muster. And in my view, the Skrmetti majority erred in denying that reality.

Best,
Mark

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Okay, my response is below. If you have time, I’d vote for giving you the last word (especially because my response is longer than your note), having my copy editor once-over the whole thing, and then posting the exchange for free on my Substack. No worries if you’re too busy, but will be curious to get your thoughts if you have time. Thanks, and hope you’re having a good weekend. -Jesse

Hi Mark,

First of all, thanks for the email. This is a very toxic subject and I think conversation is important. I should also note that you’re in good company in your opinion, even if it didn’t win out. In Justice Sotomayor’s dissent, she wrote that “This case presents an easy question: whether SB1’s ban on certain medications, applicable only if used in a manner ‘inconsistent with. . . sex,’ contains a sex classification.” She further describes the sex classification as “plain on the face of this statue,” meaning this is an easy call. I obviously disagree with a respected Supreme Court Justice — and a respected liberal legal writer — at my own peril, but let me lay out my case and you can tell me what you think I’m getting wrong.

Let me first be clear about how I view the outcome: I don’t think laws like Tennessee’s are a good way to resolve any of this. Yes, there are major problems with the evidence base for youth gender medicine, and yes, the “experts” promoting it have done so in a wildly irresponsible way (if that coffin had any space left for more nails, Nick Confessore hammered them in last week). I would personally feel extremely torn if I had a tween or teen requesting these treatments who seemed to be in serious and sustained distress about their sense of gender identity — I would find this to be an unbelievably difficult decision, in large part because the medical establishment has failed to rise to the challenge.

Despite all this uncertainty, the answer is not a patchwork system similar to the post-Dobbs abortion landscape, where access to youth gender medicine depends on what state you’re in. We’re never going to get consensus on this issue, but we need to somehow get to a shared basic understanding of where this medicine is at, evidence-wise; what further research needs to be done (and soon); and what the known and unknown risks are. Whereas the more centralized European healthcare systems that have looked into this issue have delivered a modicum of consensus and a way forward (even if it isn’t one favored by trans activists), our own healthcare system (not to mention our political system) is a fractured, decentralized mess, and that’s why we are where we are.

But the outcome question is separate from the question of whether trans activists and their allies and attorneys are making sound arguments, legally and logically. This is important to debate in its own right, because it bears on the question of whether we have highly functioning liberal/progressive institutions (extremely important at the moment) and whether they will win future (perhaps less divisive) battles. I don’t think they have a good recent track record on any of this, and the sex classification/discrimination question strikes me as a good example. Let me unpack a couple of your arguments, respond, and if you have time you can tell me what you think.

You write:

Consider. . . an adolescent cis boy who experiences gynecomastia, unwanted but harmless growth of breast tissue. Under SB1, he may still receive testosterone therapy to reduce his breasts. Not because the excessive growth of tissue is medically harmful, but because he does not wish to appear to have breasts, as they are incongruent with his gender identity. But an adolescent trans boy may not, under SB1, receive the same treatment to achieve the same effect — reduction of breasts that are incongruent with his gender identity. Why?

I take it you would say: Because the trans boy seeks the treatment for gender dysphoria, whereas the cis boy seeks it for gynecomastia. True enough, but irrelevant for the purpose of deciding whether the law classifies on the basis of sex. That’s because, in addition to classifying on the basis of medical condition, the law classifies on the basis of sex to determine who may receive the same treatment to achieve the same outcome. An adolescent’s access to testosterone to reduce breast growth turns on the sex they were assigned at birth. Those assigned male can get testosterone; those assigned female cannot. Thus, the law classifies patients on the basis of sex, and triggers heightened scrutiny under the equal protection clause. Put differently, to determine the medical condition — gender dysphoria or gynecomastia — a doctor must consider the patient’s sex assigned at birth. That consideration, under longstanding precedent, compels heightened scrutiny.

First of all, I can’t help but point out that according to experts, “In the majority of cases of pubertal gynecomastia, observation and reassurance are the mainstays of therapy as the condition usually resolves naturally. Pharmacological treatment and surgery are recommended only in selected cases.” Seems worth keeping in mind.

Anyway, my understanding is that this situation would be more likely to call for surgery than testosterone, because testosterone usually wouldn’t be used as a treatment for gynecomastia, and certainly won’t lead to the full disappearance of a female’s breasts (if it would, it would save trans guys a lot of surgeries). But that doesn’t matter, because the point remains that it is absolutely the case that you can find some situations where a natal male, but not a natal female, would be allowed to receive testosterone or estrogen.

Your argument echoes one I’ve often heard from trans activists, and which was subsequently taken up by plaintiffs’ counsel in Skrmetti: It’s discrimination to allow males, but not females (or vice versa), to access a certain medicine. My sense is that in the law, the strongest such arguments involve situations where all the other factors are the same, but if you switch one thing, you get a different outcome. There’s some talk in Roberts’ decision of “but-for tests” and how they interact with the Bostock case. This goes beyond our conversation, but the basic logic is useful: You take a situation, change one thing, and see if the result changes. If that one thing is sex, sex discrimination might be afoot. In Bostock, the example is a male employee who wears a dress to work. We can switch just one thing — his sex — to female, and the employee is treated differently. Despite the conservative wing of the court’s clear majority, Gorsuch and Roberts couldn’t deny the obviousness of the sex discrimination here, leading to a 6–3 victory for the liberal side of the debate.

You’re trying to claim that a similar type of sex discrimination flows directly from SB1: “[I]n addition to classifying on the basis of medical condition, the law classifies on the basis of sex to determine who may receive the same treatment to achieve the same outcome.” But it just isn’t doing that. One adolescent can get treatment for gynecomastia, while the other can be denied it for gender dysphoria, because these are different conditions. You are abstracting two different medical conditions, treating them as the same — as simply “wanting less breast tissue” — and (in my view) contriving a situation in which the two youths would be treated the exact same “but for” their sex. Following in the footsteps of a lot of trans activists and advocates, you are also inserting “gender identity” into a condition — gynecomastia — that doesn’t necessarily involve it. You’re trying to take two things that are unalike and make them alike.

Zeroing in on this example, the guidelines for treating pubertal gynecomastia help make my case clearer: “Surgical management of pubertal gynecomastia may be considered in non-obese male adolescents who present persistent breast enlargement after a period of observation of at least 12 months, breast pain or tenderness, and/or significant psychosocial distress,” write some experts in this area. So doctors who follow the guidelines might agree to remove a 15-year-old male’s breasts because he is tired of being made fun of at school, which is causing “significant psychosocial distress.” He may or may not experience a “mismatch” between his “gender identity” and biological sex — there may be nothing to “affirm,” per se. He might just get tired of being ridiculed! We can debate whether or not the guidelines are right, lament the cruelty of adolescents, talk about how in a perfect world a boy with breasts wouldn’t be treated any differently, and so on, but it’s a stretch to lump treatment for gynecomastia in with “gender-affirming care” given that surely, numerous boys have had unwanted breast tissue removed without thinking much at all about their “gender identity,” or without experiencing clinically relevant gender dysphoria.

In short, it isn’t really “the same treatment to achieve the same effect,” except in a very superficial sense that doesn’t map well into real-world medical practice. Here’s how Roberts put it, with the part I’m bolding really getting at the core of the matter, in my opinion:

We also reject the argument that the application of SB1 turns on sex. The plaintiffs and the dissent contend that an adolescent whose biological sex is female cannot receive puberty blockers or testosterone to live and present as a male, but an adolescent whose biological sex is male can, while an adolescent whose biological sex is male cannot receive puberty blockers or estrogen to live and present as a female, but an adolescent whose biological sex is female can. See Brief for Respondents in Support of Petitioner 22; post, at 10–15 (SOTOMAYOR, J., dissenting). So conceived, they argue, SB1 prohibits certain treatments for minors of one sex while allowing those same treatments for minors of the opposite sex.

The plaintiffs and the dissent, however, contort the meaning of the term “medical treatment.” Notably absent from their framing is a key aspect of any medical treatment: the underlying medical concern the treatment is intended to address. The Food and Drug Administration approves drugs and requires that they be labeled for particular indications—the diseases or conditions that they treat, prevent, mitigate, diagnose, or cure. See 21 CFR §§201.57(c)(2), 314.50(a)(1) (2024). Different drugs can be used to treat the same thing (would you like Advil or Tylenol for your headache?), and the same drug can treat different things (take DayQuil to ease your cough, fever, sore throat, and/or minor aches and pains). For the term “medical treatment” to make sense of these various combinations, it must necessarily encompass both a given drug and the specific indication for which it is being administered.

Roberts’ reasoning shouldn’t have come as a surprise to anyone. Skrmetti came to SCOTUS via the U.S. Court of Appeals for the Sixth Circuit, and in that 2–1 decision, Judge Jeffrey Sutton wrote:

Another flaw accompanies [the plaintiffs’] argument. It assumes that any administration of these hormones is one treatment. That’s not so. Using testosterone or estrogen to treat gender dysphoria (to transition from one sex to another) is a different procedure from using testosterone or estrogen to treat, say, Kleinfelter [sic] Syndrome or Turner Syndrome (to address a genetic or congenital condition that occurs exclusively in one sex). These distinct uses of testosterone and estrogen stem from different diagnoses and seek different results. Because the underlying condition and overarching goals differ, it follows that the cost-benefit analysis does too, permitting States to legislate in the area without the assumption that they have presumptively violated the Constitution. States may permit varying treatments of distinct diagnoses, as the “Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same.” Tigner v. Texas, 310 U.S. 141, 147 (1940); see Vacco, 521 U.S. at 808.

This all strikes me as very straightforward! It could be I’m missing something, but it also could be that this was a bad argument and (as per Confessore’s reporting) a really bad case to challenge up to SCOTUS. Even I, with my extremely limited access to the liberal-legal grapevine, heard rumblings on this front last year.

You also write that “to determine the medical condition — gender dysphoria or gynecomastia — a doctor must consider the patient’s sex.” I don’t really think this is relevant. For what it’s worth, here’s how Sutton addressed this:

It is true that, by the nature of their biological sex, children seeking to transition use distinct hormones for distinct changes. But that confirms only a lasting feature of the human condition, not that any and all lawmaking in the area is presumptively invalid. One year ago, and nearly fifty years ago, the Supreme Court explained that laws regulating “medical procedure[s] that only one sex can undergo” ordinarily do not “trigger heightened constitutional scrutiny.” Dobbs, 142 S. Ct. at 2245–46; see Geduldig, 417 U.S. at 496 n.20 (“While it is true that only women can become pregnant it does not follow that every legislative classification concerning pregnancy is a sex-based classification. . . . Absent a showing that distinctions involving pregnancy are mere pretexts designed to effect an invidious discrimination against the members of one sex or the other, lawmakers are constitutionally free to include or exclude pregnancy from the coverage of legislation.”). Just so with the banned hormone treatments. Testosterone transitions a minor from female to male, never the reverse. That means only females can use testosterone as a transition treatment. Estrogen transitions a minor from male to female, never the reverse. That means that only males can use estrogen as a transition treatment. These treatments, by biological necessity, are “medical procedure[s] that only one sex can undergo.” Dobbs, 142 S. Ct. at 2245. If a law restricting a medical procedure that applies only to women does not trigger heightened scrutiny, as in Dobbs and Geduldig, these laws, which restrict medical procedures unique to each sex, do not require such scrutiny either.

I am guessing you are not a fan of Dobbs or Geduldig, but that isn’t really the point here, right? The point is whether the legal reasoning is correct. I don’t think that legally — or logically — it makes sense to say that a law classifies on the basis of sex simply because it discusses a medical condition inherent to one sex or another, or in which treatments hang on biological sex.

I’d also note that in Tennessee, SB1 can be followed without a given doctor even knowing the sex of his patient. Let’s say one such doctor finds a note from her overworked receptionist that is lacking in certain details: “A 15-year-old patient wants to come in about gender dysphoria.” If the doctor is an endocrinologist, she knows she cannot provide this patient hormones, regardless of the patient’s sex. If the doctor is a surgeon, same deal. I don’t honestly know how legally relevant this is, but it seems difficult to argue that a law classifies or discriminates on the basis of sex when the individuals primarily subjected to it — medical providers — can easily stay within its bounds without even knowing the sex of the patients who could potentially cause them to violate it. Moreover, if the overworked receptionist gets the sex wrong in her note, only to later correct it, subsequently crossing out “male” for “female” or vice versa — a but-for test, more or less — that wouldn’t change anything!

Zooming out a little, the argument that a bunch of totally different medical procedures that share superficial similarities are all “gender-affirming care,” or language to that effect, is a dead end. That’s true both of your fairly mild and moderate version and Andrea Long Chu’s more radical one, which loops in everything from double mastectomies for minors to erectile dysfunction pills for old men, describes them all as “changing sex,” and cries foul that we outlaw some flavors but not others.

The fact is that the medical system treats different conditions differently, and that a lot of people either don’t believe in gender identity the way you do or question its relevance to most medical treatment. Whether or not you think it’s correct, the medical establishment has decided that because female bodies don’t usually produce hair in certain places, the presence of such hair constitutes a medical condition, with accompanying diagnostic and billing codes, etc., and doctors should sometimes remove that hair. Same with gynecomastia. I understand the tactical or legal reasons to call these “gender-affirming” treatments, but I also think that’s a stretch most Americans wouldn’t agree with. And making arguments most Americans wouldn’t agree with is how we got the Skrmetti decision.

Thanks for reading, and if you’re interested in responding to any of this, I’m happy to let you get the last word, have my copy editor do a pass of our entire correspondence, and post this on my newsletter.

Best,
Jesse

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Hi Jesse,

Thanks for the reply. Feel free to use this conversation however you like, and I will never say no to getting the last word.

I want to zero in on what I take to be the heart of your argument, which I will try to summarize fairly: SB1’s ban on certain treatments for gender dysphoria in minors does not classify on the basis of sex — even though it allows a child assigned male at birth (who identifies as male) to undergo breast reduction but does not allow a child assigned female at birth (who identifies as male) to do the same. That’s because the “treatment” for each child is different based on the underlying medical concern. A treatment for a cis boy with gynecomastia might involve administration of testosterone, but it does not qualify as “gender-affirming care” because it is not intended to resolve gender dysphoria. By contrast, the administration of testosterone to a trans boy is a fundamentally different treatment — even if it is the same dose designed to achieve the same cosmetic outcome — because this therapy is meant to resolve gender dysphoria. Thus, SB1 allows differential treatment for different conditions, and imposes classifications on that basis, not sex.

I won’t rehash my disagreement with this logic except to note that I still do not accept a key link in the chain. A cis boy could surely seek breast reduction to affirm his (male) gender identity, because he thinks larger breasts are inconsistent with his sex; a trans boy could not seek breast reduction to affirm his (male) gender identity for the same reason. The only difference is the sex each child was assigned at birth, making the law a sex classification. But I understand your objection to this reasoning, and I will just set it aside.

Instead, I will explain why I believe that even if your framework for evaluating SB1 is correct, the law still requires sex-based considerations and therefore triggers heightened scrutiny.

To start, let’s focus on your example of a doctor who is asked to provide hormone therapy to an adolescent with gender dysphoria. You say that, under SB1, this doctor knows she cannot provide the requested treatment regardless of the patient’s sex, because all such treatment for gender dysphoria is forbidden. So, you suggest, SB1 can be read and applied in a sex-neutral manner.

In my view, your premise is correct but your conclusion is not. To show why, let me first note that Justice Alito made a very similar argument in Bostock about discrimination against gay people. He envisioned an employer who refused to hire a gay person without knowing if they were male or female; this employer, he argued, could discriminate on the basis of sexual orientation without discriminating on the basis of sex, so anti-gay discrimination can be sex-neutral. But the Bostock majority rejected this argument. It explained that sexual orientation — for this plaintiff, same-sex attraction — is “inextricably bound up with sex.” To discriminate against a person for being gay is to punish them for attraction to a person of the same sex. (Obviously.) That “difference in treatment” involves an inherently sex-based consideration. So it makes no difference whether or not the employer knows the sex of the gay person they are punishing; their action still qualifies as sex discrimination.

The Bostock majority applied the same logic to transgender people. To punish someone for receiving treatment for gender dysphoria is to punish them for transitioning away from the sex they were assigned at birth to a different sex. (Bostock termed this “living as” a different sex.) The transgender person faces different treatment because they refuse to live as the sex they were assigned at birth. So when an employer discriminates against a person who seeks to resolve their gender dysphoria by transitioning, they are always taking sex “into account.” Per Bostock, then, “transgender status” and its underlying medical condition of gender dysphoria are, like homosexuality, “inextricably bound up with sex.”

In Skrmetti, Chief Justice Roberts attempts to work around this rule by mangling Bostock’s holding. In the chief’s telling, Bostock simply held that anti-trans discrimination is sex discrimination because if you “change one thing” about the employee — their sex assigned at birth — they would face no “penalty.” In my view, though, this simplification hollows out one of Bostock’s core insights, which is that any consideration of a person’s desire to transition from one sex to another is inherently sex-based. Otherwise, an employer could easily evade Bostock by declaring that they will fire every employee who received medical treatment for gender dysphoria. This employer could argue that they are not discriminating on the basis of sex because they are firing everyone who receives this treatment regardless of the sex they were assigned at birth.

That cannot be right. And it is one reason why I think Justice Sotomayor plainly has the better argument about the application of Bostock’s reasoning here. (I will note that Justice Gorsuch, the author of Bostock, was uncharacteristically silent during oral arguments in Skrmetti, and did not write an opinion to explain his vote; it seems likely to me that he regrets Bostock’s breadth and is ready to retreat from it, perhaps in part because of the very different political climate vis-à-vis transgender rights today.) I agree with Sotomayor that Roberts “seeks to distinguish Bostock away” by reducing its analysis to an easily evaded formalism that fails to account for the ways that sex-based considerations can hide behind ostensibly neutral pretexts.

In Skrmetti, the application of Bostock’s actual holding (rather than Roberts’ distortion) shows why SB1 merits heightened scrutiny. The law outlaws gender-affirming treatments for a medical condition, gender dysphoria, that is inextricably bound up with sex. It exclusively prohibits treatments that help a minor transition from one sex to another. Even accepting your argument that the same medication may be a different “treatment” depending on the condition it aims to resolve, SB1 still imposes restrictions that are based, in part, on sex. To limit treatments for gender dysphoria is to limit a minor’s ability to transition from one sex to another. If I were to concede that the law applies to minors equally regardless of their sex assigned at birth, I would still argue that it imposes a sex-based classification by targeting a condition and treatments that inherently involve sex.

If there were any doubt about this, SB1’s plain text resolves it. In the bill, the Tennessee legislature stated that one of the law’s goals was to “encourag[e] minors to appreciate their sex.” So, to the legislature’s credit, it is not really hiding the ball: State lawmakers sought to compel minors to live as the sex they were assigned at birth. To do so, they explicitly targeted minors experiencing “gender dysphoria” — that is, those who identify as, and wish to transition to, a sex different from the one they were assigned at birth. And they outlawed a specific set of treatments meant to resolve gender dysphoria by enabling minors to live as this different sex. At every step of its operation, this law instructs minors to “appreciate” their assigned sex and bars them from accessing medicine that would allow them to transition to a different sex. It is fundamentally sex-based legislation.

Geduldig and Dobbs do not defeat this conclusion. The upshot of those cases is that “the regulation of a medical procedure that only one sex can undergo” is not a sex-based classification. This was so, the court held, because not all women become pregnant; thus, a law regulating pregnancy only applies to a subclass of women who do conceive, and can be crafted without reliance on sex. It might have a disparate impact on women, but it does not regulate on the basis of sex.

I recognize that Roberts attempts to graft the reasoning of Geduldig (and, by extension, Dobbs) onto Skrmetti, but I think his reliance on these cases is badly misplaced. SB1 bans gender-affirming medical treatments for all minors who seek to resolve their gender dysphoria by transitioning. It therefore defines its scope on the basis of a diagnosis and treatment that, as we have seen, inherently involve sex-based considerations. True, the law applies only to a subclass of minors, so it bears superficial similarity to pregnancy regulations’ application to a subclass of women. But unlike those regulations, SB1 singles out all minors who seek to transition, drawing a line based on treatments that aim to alter sex characteristics — making sex not incidental but essential to the law’s reach.

I will reiterate that the question I’ve addressed here is only the first step of the constitutional analysis. As you know, once a court finds that a law classifies on the basis of sex, it must then ask whether the law is substantially related to the achievement of “important” government interests. I do not address that question here. My goal is to persuade you that your “trust-falling-through-the-floor-of-the-sub-basement-moment,” as you put it, missed key dimensions of the plaintiffs’ legal argument in Skrmetti, and that what you saw as “basic errors” are in fact legitimate disagreements over law and logic.

Best,
Mark