What The Media Won’t Tell You About Skrmetti

Or conservatives. Or liberals. Or lawyers. Or anyone, really.

Skrmetti protest outside the US Supreme Court, Dec 4, 2024. Photo by Brian McCurdy. Used by permission.

There were varying levels of optimism and pessimism among trans people before the Supreme Court’s hearing in US v Skrmetti, the current case set to decide whether banning trans health care is constitutional. While reasons for pessimism are obvious, the main reason for optimism was the 2020 case Bostock v Clayton County, which held — quite consistently with past equal protection successes — that if you can’t decide whom to discriminate against without referencing sex, then that is (in legally significant part) discrimination based on sex. You can call it sexual orientation discrimination or anti-trans discrimination if you like, but sex discrimination is a necessary part of that since without reference to sex you would have no way to tell who is gay or who is trans.

While on the surface it makes sense to think that a favorable ruling in Bostock makes a favorable ruling in Skrmetti at least plausible, it’s important to recognize that Bostock on sexual orientation and transness, like US v Virginia on women and Loving v. Virginia on race, isn't the only statement on whether and when equal protection is implicated in an issue. Those now-valid precedents overturned past precedents. But before them, courts consistently used transparent dodges to say that laws and actions forcing separateness do not violate equal protection because the laws' worst and most direct consequences fall equally on both sides of an otherwise suspect line. For instance Baker v. Nelson found it entirely constitutional to discriminate in marriage access on the basis of sex, where such discrimination equally bans a man from marrying a man and a woman from marrying a woman. It is only after decades of dissembling on an issue that courts eventually acknowledge the obvious and permit equal protection analysis to have its appropriate effect. That’s when we get 2015’s Obergefell, to 1971’s Baker.

But the thing that should be stressed here is that the court in Baker did not apply serious scrutiny to laws banning equal access to marriage for queer people and find that some nuanced point of social science was yet to be hashed out in the academic journals, requiring some future double-blind study to provide the crucial information necessary to resolve the constitutional question. Rather, the courts found that there was no reason to apply serious scrutiny because two queer people are icky and different and, in the sanitized language of the law, not similarly situated to two straight people. The law wasn’t weighed for its use of sex in determining the rights of citizens. Sex was ignored and so equal protection was ignored. When Baker was appealed from the State Supreme Court of Minnesota, the US Supreme Court declined to hear it saying only that there was no federal question to resolve.

Likewise, if you listen to the oral arguments in Skrmetti, you’ll hear Craig v. Boren mentioned several times. Craig was a victory for equal protection in liquor laws and is good precedent today for the notion that discrimination based on sex requires heightened scrutiny by the courts. But what you won’t hear mentioned is Goesaert v. Cleary. That case upheld a ban on women working as bartenders within cities of at least 50,000 people unless working within a bar owned by a male relative. While the dissent was quite clear that the law treated women and men differently and thus violated equal protection and required serious justification, the majority didn’t interrogate the law or the legislative record to find that justification. They simply held that fundamental differences between men and women meant that women bartenders were not similar enough to men bartenders (and, bizarrely, women bartenders in bars owned by male relatives were not similar enough to women bartenders in places owned by women relatives) for equal protection to even be implicated.

The court did not look for serious justifications and fail to find them. The court did not go looking for justifications at all.

This is the historical pattern of equal protection claims. While hands may wave toward one justification or another, the legal reasoning in early cases will consistently deny that equal protection is even an issue. This will go on for some decades before the courts will decide to apply the constitutional requirement for equal treatment of similar persons and suddenly realize that such actions violated the law all along.

And make no mistake: the courts don’t do this classification by classification. They do this issue by issue. Even after Missouri Ex. Rel Gaines v. Canada (applying equal protection to the issue of Black men barred from state-run law schools) it took 16 years to reach a determination in the seemingly quite related issue of segregation in K-12 schools and another 13 years after that to ban states from racially regulating marriages. Hell, US v. Virginia could hardly be a more perfect parallel to Missouri Ex Rel Gaines, but it took fifty-eight fucking years for the Supreme Court to determine that equal protection should be applied to cases of women being kept out of state military schools the same way it applied to Black men kept out of law schools.

This is to say that even when courts acknowledge that discrimination against a group exists, they aren’t necessarily going to apply newfound enlightenment on one issue of discrimination against that group to another against that same group. The 29 year gap between ex rel Gaines and Loving helps explain why job discrimination against trans people might be treated very differently from health care bans, even though the discrimination targets the exact same people.

And, again, go back and read not the famous cases where justice won but those decades of forgotten cases where justice lost. You find again and again that the court isn’t applying skepticism and scrutiny but ultimately determining that given the state of human knowledge the justices can’t determine with certainty that a legislature’s actions are unjustified. No, you find, again and again, that the justices are certain that skepticism isn’t warranted, that humans are not equal so no protections need apply.

Trans folks were overjoyed when Bostock v. Clayton County reasoned that employment law requires that trans people be covered under sex discrimination provisions in the same way that a law banning religious discrimination would apply to someone fired not for being Christian or Muslim or Jewish, but for having converted as an adult from one to the other. But the people who deeply believe in our legal system as a force for good took the wrong lesson. They assumed that having won Bostock they would easily win future cases by pointing to that precedent. But of course if the law worked in that way, then K-12 schools would have been integrated in 1939 as everyone just assumed that 1938’s ex rel Gaines required the outcome in Brown v. Board of Education (Topeka, Kansas) with no more than a quick rubber stamp.

The anti-trans law at issue in Skrmetti and all the others like it use the force of law to prevent someone from occupying the social role of a woman or girl during one portion of life and a boy or man in another. They are literally for the purpose of enforcing separateness, with the lines and consequences drawn directly through actual human bodies, actual human lives. And as with Plessy v. Ferguson which found it constitutional for Louisiana to require a train to maintain separate passenger cars for white men and men one-eighth Black, the lawmakers drawing these lines depend on judicial distaste for the people who would violate the law. The horror and disgust of those empowered to guard against animus and invidiousness are powerful motivators to craft a jurisprudence of willful ignorance, to pretend that, no, it's not unequal to treat valued persons as valued and garbage persons as garbage because our moral intuitions are separate from religion or race or sex.

After all, how could someone be so thoroughly educated, be entrusted with such power as to wield a vote on a prominent nation's Supreme Court, and still oneself be deceived by animus, by hatred, by disgust -- by any emotion really. Desperate to believe that they deserve their own positions, they attribute to the mythically perfect Judge Hercules the same willful irrationality that guides their own decisions. They deceive themselves because they want to be deceived. Their own train car is quite comfortable, thank you, and they are as loath to admit a disturbing thought into their analysis as Melville Fuller's court was to admit a middle-class octoroon.

There is a history here, is what I'm saying. And one of the things that otherwise smart legal commentary misses even as it calls attention to the wider threat to equal protection is that this is how it has always been done. There is a Goesaert v. Cleary for every Craig v Boren, a Baker v. Nelson for every Obergefell v Hodges, a Bowers v Hardwick for every Lawrence v. Texas. And if you actually look at the history, you don't find courts dutifully applying skepticism and scrutiny but happening to decide that the state met some significant burden. No, what you find are courts over and over again stating that women bartenders are not similarly situated to men bartenders, thank you very much.

You’ll find many persons on television and the internet with more knowledge of the law than me. But law school hammers home that one must follow precedent. It’s a way of thinking that lawyers may believe is at work even when it is patently not present because the fact that judges and justices can just ignore the constitution when it is more comfortable for them to do so is too disturbing to be seriously contemplated. Those commentators, much as I love them, won’t interrogate this any more than the Roberts court will interrogate the sex-based classifications at the heart of Tennessee’s SB 1.

We are taught in law school to remember the cases that establish new law. What we aren’t taught is that when trying to determine why a case was lost it’s often more fruitful not to compare it to reasoning in past victories but to what happened in other losses. To the Roberts court, trans people are as obviously different from cis people as women bartenders were different from men bartenders in another age. Justice Jackson was on the right track when she compared Tennessee’s arguments in Skrmetti to Virginia’s arguments in Loving, but if you want to know why trans people are going to lose this case you can’t compare their position before the court to that of the Mildred and Richard Loving.

Loving overturned Pace v Alabama, in which the court was just overjoyed to find that no equal protection analysis was required when reviewing bans on interracial sex or marriage. To understand how the court could look at a law that draws lines on the basis of sex and finds it to be free of equal protection worries, don’t look at the sympathy shown to Mildred Loving. Look at the contempt shown towards Tony Pace and Mary Cox.

This doesn’t mean, of course, that Skrmetti teaches us nothing about the threat to equal protection under the Roberts court. No, the lesson is more nuanced than that. Watching the court’s arguments in Skrmetti instead allows us to judge the extent to which the justices will contort themselves not to decide an issue, but to pretend there is no issue to decide.

Equal protection isn’t under immediate and equal threat in all areas. To believe so is to believe that the justices are applying a consistent ideological framework and to ignore the obvious psychological avoidance at play. But as the history presented here makes plain: consistent ideological frameworks are how the courts’ apologists prefer to interpret the court as acting. They do not describe the court’s actual motivations and practices.

Instead of fearing a new, thoroughly reasoned and consistent jurisprudence that is contrary to previous equal protection doctrine, Skrmetti’s oral arguments provide us reason to fear for cases in which our more reactionary justices wish to avoid confronting their own biases. We have to look to other sources to determine what cases those are, but any plaintiff seeking to overturn novel restrictions on abortion or reproductive rights or queer freedom is likely to receive the same treatment as trans persons when they come before this court.

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Crip Dyke also writes for the delightfully cussmouthed Wonkette!

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