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Notes -
The U.S. Supreme Court issued its decision in United States v. Skrmetti.
In a 6-3 decision, it held that:
The outcome was more or less decided by the threshold question: which type of review applies? There are 3 options:
The Tennessee law at issue didn't fall into category 1, so the argument was about whether it was category 2 or 3. Per the Court:
Once the law fell into category 3, that was pretty much that. There is some wiggling around to deal with Gorsuch's opinion in Bostock (which is what causes Alito to concur in parts of the opinion rather than the full thing since he dissented from Bostock), but Gorsuch joined this opinion in full, so apparently he didn't have a problem with the Court somewhat limiting Bostock here.
As one might expect, Sotomayor, Kagan, and Jackson dissented--they think intermediate scrutiny should apply. I cannot impartially comment on Sotomayor's dissent because most everything of hers that I read makes me think that Larry Tribe was, if anything, too kind in his remarks.
I agree with @gattsuru and @ArjinFerman here. This is not a major victory for the red tribe, or a major loss for the blue. It's probably valuable, politically, for Republican politicians to be able to say to their base both that this is a win for "state's rights" and a win against "the trans agenda." I expect red states to increasingly adopt anti-hormone and anti-puberty-blocker legislation, and blue states to explicitly protect it, and probably we will also start seeing "trans your kids by mail" services not unlike what we have with abortion. So the victory will be mostly symbolic (which may count for something, but may not).
It's worth noting that Kagan, though she agreed on heightened scrutiny, declined to join the Court's low-IQ wing to assert that also the law failed under heightened scrutiny. Once again she shows herself to be, by a wide margin, the most competent jurist on the Court's left wing.
It's also worth noting that this is not quite correct regarding intermediate scrutiny:
Intermediate scrutiny applies to laws that discriminate on the basis of sex. Merely containing classifications is not sufficient. What's the difference? Well, the minority tries to claim that there's no difference; the law mentions sex, therefore the law is about sex, therefore intermediate scrutiny. But the majority points out that there are many laws obviously dealing with sex, that do not warrant intermediate scrutiny. The most obvious, of course, is any law dealing with pregnancy. Only women (sexually mature human females) can get pregnant. Every law dealing with the classification of "pregnant" contains a sex-based classification. But the discrimination in such laws is grounded in a medical status (pregnancy) rather than in sex. In this case, the discrimination is based on age (the state is denying both minor males and minor females cross-sex hormones and puberty blockers) and medical status.
Incidentally, this is why the late Justice Kennedy's opinion in Obergefell is and has always been such a mess. Laws denying males the right to marry males don't discriminate on the basis of sex because everyone has the right to marry someone of the opposite sex. No one was being denied the right to marry on the basis of sex (any gay person could legally marry someone of the opposite sex...), but on the status of not being part of a consenting heterosexual dyad. What the left wanted out of that case was for intermediate (or even strict!) scrutiny to be applied to sexuality, which is obviously a different status than sex. But Kennedy didn't write the opinion that way (he didn't use "scrutiny" analysis at all, instead using history-and-tradition, which is transparently nonsense). Even post-Bostock, sexuality still hasn't been formally adopted by the Supreme Court as a "suspect class."
Despite the utterly bizarre attempt by Biden and Harris to declare the "Equal Rights Amendment" passed (how was he not called an attempted dictator for that?), the fact is that even "heightened scrutiny" on sex is utterly without grounding in the Constitution of the United States. Which brings us back to Skrmetti: a real win for conservatives here would have been a majority declaration that sex and gender are not suspect classifications at all, that sex and gender relevant regulation all belongs in the "rational basis" bin.
Never going to happen, I know. But that's what an unqualified victory would look like, here. This decision ain't it.
It’s still amusing to me how little attention was paid to this, all around. It seemed like even the right wing thought it was so totally unserious as to not be worth any reaction whatsoever. I would love to hear an insider perspective of what the hell actually happened behind the scenes there.
Biden's admin did lots of bizarre far left pushes that have since been swept under the rug; this is probably just another example.
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