Hecox May Still Hide In Justice Kennedy’s Shadow

When Skrmetti was decided, I was critical of Justice Barrett’s concurrence. She rehabilitated Footnote 4, gave credence to Justice Kennedy’s animus jurisprudence, and all but wrote that gays who were affected by a “legacy of de jure discrimination” are a suspect class. None of these doctrines are consistent with original meaning. Yet, Justice Barrett seemed intent on fitting the transgender case into Justice Kennedy’s framework. As I wrote in Civitas, “the Court remains in the shadow of Justice Anthony Kennedy.” And regrettably, Justice Thomas joined this opinion, even as he previously joined Justice Scalia in repudiating the Footnote 4 dictum.

Regrettably, like a groundhog, the Justices in Hecox appear to still be hiding in Justice Kennedy’s shadow. Let’s start with Justice Gorsuch.

JUSTICE GORSUCH: There’s another way to think about the case that your friends on the other side posit, and that is that transgender status should be conceived of as a discrete and insular class subject to scrutiny, heightened scrutiny, in and of itself given the history of de jure discrimination against transgender individuals in this country over history in immigration and family law, cross-dressing statutes, they get a long laundry list. And I’d like you to respond to that.

Justice Gorsuch seems absolutely intent on recognizing transgender people as a suspect or quasi-suspect class. He said nothing at all about the issue in Skrmetti, because he didn’t have to. The Chief dodged the status issue altogether by finding non-suspect classifications based on age and medical treatment. It was a typical Robertsian dodge, that merely postponed the day of reckoning.

Perhaps the best conservative defense of Bostock is that Gorsuch was simply persuaded by the hyper-technical textualist argument he adopted (I was not), but he was agnostic about the underlying merits issue.  But this question suggest that Gorsuch was also moved by the LGBT policy arguments underlying the case. Remember, an argument that cut against Gorsuch’s Bostock analysis was that it would be preposterous for the Congress in 1964 to have inadvertently prohibited discrimination against transgender people. Here, Gorsuch states clearly there is a history of de jure discrimination against those people. If governments banned cross-dressing, then would Congress prohibit employers from firing cross-dressers? Wouldn’t that argument undermine Gorsuch’s reading of Title VII?

Alan Hurst, the Idaho Solicitor General, responded to the de jure discrimination point:

MR. HURST: Certainly, the de jure discrimination point specifically. There has been some discrimination against transgender people, significant discrimination against transgender people in the history of this country. The same can be said of many groups. The same could have been said of the mentally disabled in Cleburne, et cetera, et cetera. I think Justice Alito’s concurrence in Skrmetti is helpful to this in saying this quasi-suspect class or suspect class process, what we’re really looking for is classes that look like race or like sex. And if you compare the discrimination in this case, where not one of the laws they cite actually classifies expressly on the basis of transgender status, if we look at that history and we compare it to the history of African Americans and women who were not able to vote, who were not able to own property, who had express classifications based on their status written into the law for most of this country’s history, these things don’t compare. They’re just not alike.

The simple answer is Hecox does not require the Court to address whether transgender status is a suspect class. The statute at issue makes no reference to transgender status at all. It is a sex-based classification, and sex is defined based on biology. But even if the Court were to go down that road, this status would not be quasi-suspect or suspect. Discrimination against transgender people is not comparable to racial discrimination and sex-based discrimination.

Prior to the ratification of the Nineteenth Amendment, biological males who may have identified as women were still allowed to vote. Prior to the ratification of the Fourteenth Amendment, biological females who may have identified as men were still able to own property. Jim Crow and the laws of coverture did not discriminate on the basis of gender identity. America fought a civil war over racial oppression. The suffrage movement spread from coast-to-coast to persuade people that women deserved the vote.

Moreover, as Justice Kennedy’s opinion in Lawrence demonstrates, it is not even clear how vigorously sodomy laws were enforced against consensual gay relations. (That’s not to say such relations were a “fundamental” right protected by law, anymore than abortion was a “fundamental” right.) Even in 2003 when Lawrence was decided, the number of sodomy prosecutions nationwide was close to zero. There is good reason why racial discrimination is subject to strict scrutiny and sex-based discrimination is subject to intermediate scrutiny. Of course, none of these tiers of scrutiny are supported by original meaning. The Court really needs to let this doctrine go, and stop trying to apply it in new contexts.

Hurst’s answer did not seem to persuade Justice Gorsuch. Justice Sotomayor jumps in, but she wisely defers to Justice Gorsuch:

JUSTICE SOTOMAYOR: Well, how –

JUSTICE GORSUCH: Well, I –

JUSTICE SOTOMAYOR: I’m sorry.

JUSTICE GORSUCH: No, please.

JUSTICE SOTOMAYOR: No, go ahead.

JUSTICE GORSUCH: Okay. You –you -there are two things in that answer that are kind of at odds with one another. You –you start by saying you don’t question that there’s a history of discrimination, I assume de jure, in this country. And then you say, well, but they don’t classify on that basis. How should we think about that?

I don’t think that was quite Hurst’s point. There was “some” discrimination against transgender people, Hurst said, but it was not even in the same ballpark as discrimination based on race or sex.

Hurst replied by turning to Footnote Four.

MR. HURST: The –I think that the -the, you know, famous Footnote 4 helps, right? This has been a discrete and insular minority. Has it been a group of people that were recognized as a group where laws were passed on the basis of their membership in that group demonstrating that they lacked the political power to protect themselves in the political process. This is from Justice Barrett’s concurrence, of course. We just don’t have any of that here. All they can point to is conduct. It says, you know, no cross-dressing, no drag performances in bars, these kinds of things. As I think our friends on the other side would admit, people cross-dress who aren’t transgender. This is not a classification on that basis.

Hurst is right. As those who advocate for Drag Queen Story Hour in public libraries explain, cross-dressing is not limited to transgender people. Indeed, they assure us that there is absolutely nothing sexual at all dressing in drag, and there is no attempt to indoctrinate children about gender identity. Look at some of the books in the Montgomery County Kindergarten curriculum! Why even bring up cross dressing!?

Even as Barrett was right about de jure discrimination, she was very wrong to give credence to the Footnote Four framework. And I don’t fault the advocate. He is working with Justice Barrett’s concurrence. But herein lies the problem with that opinion. It leaves the door open to an entire line of jurisprudence that led to Obergefell. I understand the Court is not willing to reverse that precedent, but it need not amplify the jurisprudential underpinnings of that case.

In any event, there were probably far more laws concerning homosexual activity than concerning transgenderism. Barrett was right in Skrmetti about the history of de jure discrimination against transgender people. Barrett played sports, and gets the arguments intrinsically. She stated, quite correctly, that the transgender issue only goes one way.

JUSTICE BARRETT: Counsel, can I ask you a question about analytically in the discrimination on the basis of transgender status, since trans boys can play on boys’ teams, how would we say this discriminates on the basis of transgender status when its effect really only runs towards trans girls and not trans boys?

MS. HARTNETT: We –we understand the point. And I think that might be relevant to a, for example, animus point, right, that we’re not a complete exclusion of transgender people. There was an exclusion of transgender women. But I think, on that piece, this Court has never required the whole class to actually be excluded to look at the cases to whether the exclusion of a subclass was –

JUSTICE BARRETT: I’m talking about for triggering intermediate scrutiny if transgender status is a suspect class.

MS. HARTNETT: Right. So, like Craig v. Boren, for example that’s the one about the men that couldn’t get –

JUSTICE BARRETT: Alcohol here, yeah.

MS. HARTNETT: –the 18-to 20-year-olds –right. That wasn’t all men, it was a subset of men. And yet the Court still viewed that as a sex classification subject to heightened scrutiny. And likewise here, even though it’s just transgender women in our view that are being barred and not transgender men, that also would trigger heightened scrutiny. And I think there’s the Rice v. Cayetano case from 2000, there’s other examples of the Court making clear that just because a subset of the protected class is being excluded, you still would apply heightened scrutiny.

It is not the case that biological females are trying to compete in male sports, but biological males are trying to compete in female sports. Why? The former category would lack any biological advantage, while the latter category would have a biological advantage.

It may surprise you, but I also think at some level Justices Kagan and Sotomayor agree with Justice Barrett. Somewhere, deep down, these feminists are bothered by arguments raised by biological males who seek to participate in female sports. They would never admit it, but the concern is there. I think RBG was in the same boat. I’m not saying EK and SS are TERFs, but they are probably more sympathetic to J.K. Rowling than to Daniel Radcliffe.

Indeed, not even the lawyers for Hecox has made the argument that transgender status is quasi-suspect. Justice Gorsuch pressed Hecox’s lawyer on this point:

JUSTICE GORSUCH: Counsel, one might wonder whether the efforts to refashion our equal protection jurisprudence here that we’ve been discussing at length on sex discrimination is really a fallback from what might be –one might wonder might have been your primary argument, which is that transgender status is itself a discreteness or a class. And I –I’m curious why you haven’t brought that up and what thoughts you want to share with us? Your friend on the other side said the laws you pointed to in your brief don’t address transgender persons as such, and that makes all the difference. Thoughts?

Hartnett: So, again, I appreciate it, and we’re not saying you have to have the same history. We’re certainly not equating the experience of the transgender community to that of Black Americans or women, but just as a illegitimacy for non-marital children has been recognized as a class that gets a closer look, I think we respectfully submit here it would make sense to do so to the extent the Court was still finding another path forward, the reason why we tried to help you find a way answer the question here based on sex discrimination.

I think Justice Gorsuch is alone on this front. Let’s see if this topic makes its way into a concurrence, or a dissent.

Justice Alito spoke directly to this dynamic: women who do not want biological males competing with them.

JUSTICE ALITO: I mean, this does present a particular factual situation and we have to decide that case, but looking to the broader issue that a lot of people are interested in, there are an awful lot of female athletes who are strongly opposed to participation by trans athletes in competitions with them. What –what do you say about them? Are they –are they bigots? Are they deluded in thinking that they are subjected to unfair competition?

This bigotry question immediately brought me back to Windsor and Obergefell. Perhaps the most pernicious aspect of Justice Kennedy’s majority opinion was the allegation that favoring traditional marriage made one a bigot. Here, the lawyer for Hecox doesn’t dare make an argument based on amius.

MS. HARTNETT: No, Your Honor. I would never call anyone that. And I –I think what we’re saying here is that you have to -that’s the reason why there is intermediate scrutiny or even in –in rational review, you don’t legislate based on undifferentiated fears. You base it on trying to make a rational response to what is a perceived issue. . . . Again, that is not an accusation of animus. It’s just a question of what was the statute doing. And then we go to the point of does the statute survive heightened scrutiny. That would be the inquiry.

Look how far we’ve come since 2015.