The Volokh Conspiracy
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N.Y. Times Magazine Reveals Internal Conflicts On The Left With Skrmetti
The groups presented a unified front, but with a 6-3 loss, recriminations are flying.
As the saying goes, success has many parents, but failure is an orphan. Such is Skrmetti. Barely twenty-four hours after the landmark decision, the New York Times Magazine published a lengthy profile of the case. I would encourage you to read the entire piece. We often think of the political left as some sort of monolithic and coherent institution of group think. But this article reveals many fractures on the left, some of which I suspected, but had no first-hand knowledge.
First, the article speaks to how quickly the national conversation changed around transgender rights. During the lead-up to Windsor and Obergefell, I often remarked how effective the social movement was for gay marriage. The argument was simple: allowing this couple to marry will in no way affect traditional marriage. Even the phrase marriage equality was so easy to grasp! I don't think things were so simple, but the messaging was effective. Moreover, the movement took decades to develop. People had time to accept the argument on their own terms.
However, the argument for transgender rights felt much different. Most Americans had no clue what "cisgender" or "gender affirmative care" meant. Yet, if people refused to uses these neologisms, they were cancelled and deemed bigots. And, unlike with gay marriage, the transgender movement necessarily required others to make changes. People would have to accept transgender athletes in female sports. Women who had privacy concerns about bathrooms would have to just suck it up. And that was before doctors started telling parents they could either have a dead daughter or a live son, coupled with school districts that deceived parents. All of this seemingly happened in a few years. Trump had so much influence in averting this movement.
Second, Bostock was a case about LGB as well as T, but the T only followed from the (wrong) textualist argument that Justice Gorsuch convinced himself of. And the Times articles reveals how the advocates, including Chase Strangio of the ACLU, tried to bamboozle Gorsuch directly:
Indeed, as Strangio recounted in an interview later that year, the lawyers had spent months workshopping just such a path to victory, ultimately landing on a simple argument: All the justices needed to accept was that Stephens would not have been fired for asking to wear women's clothing at work if her sex was female.
"So, fine," Strangio explained. "Say it's assigned sex at birth, say it's whatever you want — but it's because of sex." At oral argument, another A.C.L.U. lawyer reassured Gorsuch, who was considered the key vote, that protecting trans people would not lead to social upheaval — assurances that Strangio privately chafed at but that he recognized as tactically effective. "We wanted them to apply the law," Strangio said. "And we wanted them, particularly Gorsuch, to believe that it wasn't a big deal."
But Strangio--who sees the Supreme Court as "vile"--saw what Justice Gorsuch did not:
Yet in practice, Strangio and other civil rights lawyers believed that Bostock was a very big deal. In their view, they had successfully maneuvered the Supreme Court — a "vile institution," as Strangio put it — into setting a far-reaching judicial precedent. At the time, other pathways to expand rights for L.G.B.T.Q. people were narrowing. Despite progress in left-leaning states, legislation to enshrine housing, workplace and other protections at the federal level had stalled in Congress, in part because L.G.B.T.Q. groups refused to consider carve-outs — demanded by otherwise sympathetic Republicans — to protect religious institutions. Bostock seemed to offer a way to attain those rights without the compromise and horse-trading of legislation.
Yes, Bostock killed the possibility of legislative compromise--yet another reason why this decision is so inconsistent with how Gorsuch usually approaches the judicial process.
Third, transgender activists like Strangio thought momentum was on their side--as the saying goes, they were on the right side of history. Indeed, Merrick Garland had to be pushed to file in support of the Tennessee challenge:
When Tennessee's ban passed in February 2023, lawyers in the department's civil rights division lobbied to move aggressively. The attorney general, Merrick Garland, was at first skeptical. In conversations, Garland and his advisers weighed whether the case was strong enough to merit the time and resources it would consume if the civil rights division were to intervene. Eventually, though, Garland signed off.
I am reasonably confident that Garland was lobbied by Solicitor General Elizabeth Prelogar, his former clerk, and someone who carried great influence. Prelogar was almost certainly a source for this story.
Fourth, we see there were serious disagreements about strategy. Some other groups wanted to move more incrementally, and seek relief in state court. This strategy has proven successful with abortion post Dobbs. But the bigger problem is that not all progressives saw transgender rights as their fights. I am still flummoxed by the ostracization of the so-called TERFs, who seek to preserve rights for women.
L.G.B.T.Q. groups and the A.C.L.U. might have looked to state courts, seeking incremental wins without the risk of a binding Supreme Court precedent, as the movement had done for years in fighting anti-sodomy laws. They could also have waited for a case on more politically favorable ground, such as restrictions on military service or medical care for trans adults. The A.C.L.U. saw it differently. A few weeks after Sutton's ruling, the organization petitioned the Supreme Court to review Skrmetti.
In recent months, Strangio and other trans activists have pleaded for broader public solidarity with their cause, arguing that the defense of gender-affirming care is closely intertwined with the defense of reproductive freedom and bodily autonomy for women. But when I asked Romero if the A.C.L.U. had consulted with women's rights groups before bringing Skrmetti — with its high-stakes claims about sex-discrimination protections — before the Supreme Court, he seemed impatient. "I don't play 'Mother May I?' with a group of sister organizations," Romero said. "I don't run a peer-review journal. I make the best decisions for this organization on its own."
Fifth, there is a lot of consternation about whether the ACLU should have petitioned for cert after the Sixth Circuit upheld the Tennessee law.
Some civil rights experts I spoke with think it was a mistake to take Skrmetti to the Supreme Court. In their view, it was highly unlikely that the court, now with an even larger conservative majority than when it decided Bostock, was prepared to expand constitutional civil rights protections to a new class of Americans — let alone on the grounds of medical transition for minors. "If you get a bad ruling on this, it could be really problematic," Michael Ulrich, a professor of health law and human rights at Boston University, told me this spring. "If you can't win a challenge to strike down a gender-affirming care ban, it's going to be hard to win other cases around trans rights."
Recently, a decision was made to not appeal the Fifth Circuit's ruling that DACA was unlawful. The ruling was limited to Texas. I think immigrant groups were willing to lose DACA for Texas, to avoid setting a nationwide precedent. But trans laws existed in nearly two dozen states. This issue was not going away. And as history would reveal, the scientific "consensus" was dwindling by the day. The best strategy was to try to move quickly, while Biden was still in office.
Sixth, we also learn that DOJ preferred Skrmetti over the Alabama case, as it had fewer vehicle problems.
The former senior Justice Department official argued that the Alabama case — awaiting further appellate review and mired in arguments about discovery — wasn't "a viable vehicle" for Supreme Court review. And once the A.C.L.U. went ahead in Tennessee, this official told me, the Biden administration had to follow. Steering clear of Skrmetti "would have telegraphed loudly to the court that the department didn't have the courage of its convictions," the official said. Not long after the A.C.L.U. asked the Supreme Court to hear the Tennessee case, the department filed its own petition.
Seventh, as the case was being argued, public perception about the case changed--in particular the WPATH emails revealed an obvious attempt to suppress information. Some unnamed Biden aide throws Admiral Levine under the battleship.
Just as WPATH's internal emails began trickling into public view, the Supreme Court announced that it would hear Skrmetti. Not long after, Levine's requests to WPATH were reported by The Times. White House officials were blindsided, several told me. Though Levine would later tell Biden aides that she had been trying to protect the president, the West Wing saw it differently: Her request could suggest that the administration thought there should be no minimum ages at all. "Everyone was like, holy cow — did Rachel Levine really go out and lobby for 9-year-olds to get surgery?" one former Biden aide told me. (Levine's spokesman says she based "all policy recommendations on the best available science.")
Eight, DOJ felt hoodwinked, as some of the statements made in lower court proceedings could no longer be justified.
But in court, Justice Department lawyers had held up WPATH's recommendations, and those of other medical associations, as reliable guidelines for care. If the federal government could pick and choose from among WPATH's recommendations, Alabama's attorney general later argued in a blistering amicus brief in Skrmetti, why couldn't states? The White House understood its dilemma, two of the aides told me, but concluded that it was more important to prevent Trump from being re-elected.
There was also growing tension between the A.C.L.U. and the Justice Department, three former government officials told me. (The A.C.L.U. and a spokeswoman for Prelogar denied this account.) In later briefs to the court, the administration would brush off the Alabama revelations as "out-of-context excerpts" from "a different case." In private, though, some administration lawyers worried that their allies had pushed them onto thin scientific ice.
There is much here to consider. I still haven't finished reading Skrmetti. I think the Barrett and Alito opinions are worth careful consideration.
