When the Supreme Court upheld a ban on gender-affirming care for minors Wednesday, it didn’t resolve a broader question of whether transgender people are entitled to certain legal protections that would help them press constitutional challenges. But Justice Amy Coney Barrett went out of her way to explain why she thinks transgender people don’t deserve such protection.
Her explanation came in a concurring opinion to Chief Justice John Roberts’ majority ruling in United States v. Skrmetti. Justices sometimes write concurrences to add their own thoughts, even if those thoughts don’t create binding legal opinions on their own. They can lay the groundwork for future majority rulings and influence lower courts in the meantime. And though the Trump appointee’s concurrence was only joined by Justice Clarence Thomas, if her reasoning is adopted by a majority of the court in the future, it could further weaken transgender rights.
Barrett noted that, while laws are presumed constitutional and are generally upheld so long as they bear a rational relation to a legitimate goal, there are exceptions to the general rule, such as for classifications based on race and sex. When those so-called suspect classes are at issue, the government faces a greater burden to show why its actions are constitutional. In the Skrmetti case, the majority said Tennessee didn’t have to shoulder that greater burden because, the majority reasoned, the state law didn’t classify people based on sex or transgender status.
Barrett listed multiple reasons why she thinks transgender people don’t deserve this suspect class status. Among other things, she suggested that transgender people have not sufficiently faced a history of legal discrimination like people have faced based on race or sex.
But it’s not just Barrett (and Thomas) who added their thoughts on the matter. Justice Samuel Alito wrote his own concurrence showing that he broadly agrees with Barrett and Thomas.
Notably, while Alito joined the majority on the bottom line to uphold Tennessee’s ban, he disagreed with his GOP-appointed colleagues’ conclusion that the state law didn’t classify people based on transgender status. He said he would’ve preferred to assume that the law does make such a classification but to reach the same conclusion against the challenge, because he also doesn’t think being transgender qualifies as a suspect class. He said that while transgender people “have undoubtedly experienced discrimination,” the challengers in this case and their supporters “have not been able to show a history of widespread and conspicuous discrimination that is similar to that experienced by racial minorities or women.” So, while the question of what general legal protections transgender people have wasn’t the main issue in the Skrmetti case, at least three justices appear prepared to rule against them on that broader question, which could make it even more challenging for them to press legal claims in all sorts of cases going forward. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in the Trump administration’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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