April 1, 2024
Yesterday, someone asked me this on X:
I don’t usually respond to social media requests for legal advice and/or commentary. But at the time, I was taking a break from working on a legal brief and thought maybe a response would be useful. This is now I responded on X:
Good question, but I'd like to reframe it: "How far away are we from the Supreme Court acknowledging the material reality of sex?" (It basically amounts to the same question.)
Here are my (somewhat) brief answer(s) for X.
Answer 1. The Supreme Court has already done this, to an extent. In its 2020 Bostock decision, it "proceeded on the assumption that 'sex' signifies ... only the biological distinctions between male and female." But in the same case, it also assumed that (a) "transgender" describes a coherent category of people and (b) we all know what "transgender" means. It didn't explain or define what it meant. The Women's Liberation Front (on whose board I served at the time) predicted the decision would wreak havoc in the lower courts, and that's exactly what's happened. In addition, the Biden Administration completely twisted the import of the decision in its January 2021 Executive Order (13988) by telling everyone the Supreme Court said that sex includes "gender identity" for all purposes. It didn't say that, and the order has wreaked additional havoc all over the country.
Answer 2. There's no way to know. The Supreme Court has complete discretion to decide which cases to take, and when, and why. They don't have to tell us anything about their reasoning. There are at least three cases where the Court has declined to take a case, where taking the case might have helped resolve the matter: Doe v. Boyertown, Grimm v. Gloucester County, and AC v. Martinsville. Each case concerned the question whether schools are permitted to maintain single-sex spaces and in each case, the Court declined to review the ruling on appeal.
There's another case called LW v. Skrmetti. Tennessee enacted a law protecting kids from puberty blockers and opposite-sex hormones and a bunch of minors and their parents sued. The plaintiffs won at the lower court level but lost on appeal at the 6th Circuit (where @WDI_USA filed an amicus brief arguing that sex is real and "transgender" is not a coherent category of people). The ACLU has asked the Supreme Court to take the case. We have no way of knowing if or when they'll decide to review the 6th Circuit's (good, for us) decision.
There are other pertinent cases that haven't reached the Court for other reasons. Some have settled. In others, the losing party chose not to request Supreme Court review. I might elaborate on this theme in a future Substack post. Stay tuned.
This post is that elaboration …
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