For years, Chief Justice John Roberts was widely considered a brilliant judicial craftsman whose opinions were polished and persuasive even if their conclusions were suspect. That reputation should not survive the chief’s opinion in United States v. Skrmetti. His decision for the court, handed down on Wednesday, is an incoherent mess of contradiction and casuistry, a travesty of legal writing that injects immense, gratuitous confusion into the law of equal protection. It is difficult to determine the full impact of Skrmetti because it is so strangely constructed—a series of half-arguments and specious assumptions stitched together into one analytic trainwreck.
The garbled result will undoubtedly set back the cause of LGBTQ+ equality and inflict grievous harm on transgender minors. But it also leaves lower courts room to continue defending trans rights, exploiting Roberts’ self-defeating sophistry to carve out protections where the majority fails to foreclose them. Skrmetti is a setback—but one so confused, so poorly reasoned, that it may ultimately limit its own destructive reach.
It is not hard to guess why Roberts’ opinion is so muddled. The chief justice clearly had to hold together a six-justice majority that did not fully agree on its rationale for upholding Tennessee’s law. Three justices—Clarence Thomas, Samuel Alito, and Amy Coney Barrett—wanted the court to issue a broad declaration that discrimination against transgender people is not inherently suspect under the Constitution’s equal protection clause. These justices also sounded deeply skeptical that anti-trans discrimination is, itself, a form of sex discrimination that runs afoul of equal protection. Such a holding would have had sweeping implications in countless other cases involving transgender people, including challenges to laws that exclude them from bathrooms, sports, and military service. It would have required lower courts to rubber-stamp these exclusions rather than subjecting them to the heightened scrutiny they deserve under the equal protection clause.
The chief justice was not (yet) willing to go that far. Neither, it seems, were Justices Brett Kavanaugh and Neil Gorsuch. For Roberts and Gorsuch, at least, this hesitation makes sense: Just five years ago, both justices ruled that transgender people are protected against employment discrimination under federal law; that decision acknowledged that it is “impossible” to discriminate against a person for being transgender “without discriminating against that individual based on sex.” To hold together a six-justice majority in Skrmetti, then, Roberts presumably needed to argue that Tennessee’s law does not discriminate on the basis of sex or transgender status because it does not discriminate against trans people at all.
This approach, however, reduced his opinion to borderline gibberish. The problem is twofold. First, Tennessee did not hide the ball in targeting transgender children on the basis of sex; the Legislature expressly stated that its goal was to make minors “appreciate their sex” by forcing them to live in accordance with it. Second, the law restricts access to specific medical care based on the sex assigned to a patient at birth. A cisgender boy seeking to enhance his male appearance is free to receive testosterone. A transgender boy seeking to enhance his male appearance cannot. Both seek gender-affirming care; only one can access it. The lone distinction is the sex on the child’s birth certificate—a quintessential example of sex discrimination.
Roberts attempted to sidestep this problem by claiming that Tennessee’s law only discriminates on the basis of age and “medical use.” It applies exclusively to minors (for now), and targets only treatments for gender dysphoria. Both classifications are subject to rational basis review, the most deferential kind under the equal protection clause. And so, Roberts ruled, the court need only ask whether the health care ban is “rationally related to a legitimate government interest.” He then declared that, under this test, it was “not improper” for Tennessee “to conclude that kids benefit from additional time to ‘appreciate their sex’ before embarking on body-altering paths.”
This analysis is entirely backward. Roberts first asserts that the law does not discriminate on the basis of sex, allowing it to evade heightened scrutiny. Then, having settled upon a deferential standard of review, he dismisses the law’s overt discrimination on the basis of sex as constitutionally unconcerning. These two lines of logic cannot be reconciled. Surely a regulation that instructs girls to be girls (and boys to be boys) by compelling both genders to “appreciate” their sex classifies children based on their sex. The law is impossible to enforce without taking sex into account. And that classification should trigger heightened scrutiny at the outset. Yet Roberts ignores this sex-based classification at the outset, pretends the law is sex-neutral, then writes off its most overtly discriminatory provision by applying relaxed scrutiny. That’s simply not how the law of equal protection operates.
The deeper flaw, though, is Roberts’ initial insistence that Tennessee’s law can be transformed from a sex-based imposition of gender stereotypes to a sex-neutral regulation of medicine with judicial wordplay. He claimed that the ban restricts the use of puberty blockers and cross-sex hormones to treat a specific condition, gender dysphoria, that both genders can experience. Boys and girls alike, he wrote, can suffer from this condition, and Tennessee bars them all from accessing the treatment they seek. “The application of that prohibition does not turn on sex,” the chief justice concluded, so the law does not merit heightened scrutiny under the equal protection clause as a form of sex discrimination.
There are so many infirmities in this reasoning that it’s hard to know where to start. For instance, as Ian Millhiser has noted, laws can draw lines based on multiple classifications. Tennessee’s law may target age and “medical use,” but it also zeroes in on sex, and that focus should trigger heightened scrutiny. (Indeed, the Supreme Court has held that a state’s offering of ostensibly sex-neutral justifications cannot defeat lurking considerations of sex.)
Perhaps the most alarming defect in Roberts’ logic, though, is its revival of the discredited “separate but equal” doctrine that SCOTUS previously used to justify Jim Crow laws. In decisions like Plessy v. Ferguson, the court upheld racial segregation on the grounds that both races were treated equally: Black kids could not go to school with white children, but white kids could not attend school with Black children, either. SCOTUS, of course, repudiated “separate but equal” in Brown v. Board of Education. It did so again in 1967’s Loving v. Virginia, which overturned Virginia’s ban on interracial marriage. Virginia argued that it could ban “miscegenation” because it limited the freedom of white and Black residents “equally.” The Supreme Court shot down that argument, holding that any classification automatically triggered heightened scrutiny, which the state’s ban could not survive.
SCOTUS has also rejected “separate but equal” in the context of sex discrimination. Yet Roberts brought it back in Skrmetti, giving states leeway to discriminate on the basis of sex as long as they pretend they are discriminating “equally” against both genders. Is this actually the new law of sex discrimination? Is it a bespoke exception from the rule, one the chief justice used to cobble together a majority that, behind the scenes, disagreed about major aspects of the case? Or is it the majority’s way of hobbling constitutional challenges to anti-trans laws without admitting that it must kneecap bedrock principles of equal protection?
We will not know for sure until SCOTUS revisits the issue and tries to make some sense out of Wednesday’s hash. For now, one thing is certain: To carry Skrmetti over the finish line, Roberts abandoned coherence and candor in favor of a crude exercise in outcome-oriented reasoning. His decision is not the work of a careful judicial minimalist, but of a justice willing to distort basic equal protection doctrine to upend the lives of transgender children without offering a good reason why. It’s hard to imagine that this opinion will survive contact with progressive lower courts eager to take advantage of its many gaps and loopholes. Skrmetti’s brittle logic may be just enough for red states desperate for permission to persecute transgender children. But its evasions, misdirections, and sheer intellectual dishonesty are unlikely to stand the test of time.
