Our Side is Winning in Court. For the Wrong Reasons.

The Supreme Court just decided three cases with enormous consequences for women and girls: United States v. Skrmetti, Free Speech Coalition, Inc., et al. v. Paxton, and Mahmoud v. Taylor. To read the majority opinions, you wouldn’t guess that the decisions have anything to do with women’s rights at all. In fact, none of the eleven majority, concurring, or dissenting opinions do more than hint that the rights of women and girls were uniquely at stake in these cases.

Each of the three cases pitted the interests of minors against those of groups notably hostile to women, namely, gender ideologues and pornographers. Predictably, in each case the ACLU and similar activist groups filed amicus briefs on the anti-woman side. Opposing these groups, WoLF’s briefs highlight the unique harms to women and girls from, respectively, pediatric medical interventions to alter sex traits, online pornography, and gender dogma taught in school. In each case, the Court cabined its reasoning within existing legal doctrine, refusing to scrutinize gender ideology and online pornography anew, on their own terms, as uniquely pernicious and especially so for women.

Though our side won—3-0—the victory feels incomplete. Because while the law refuses to engage with the stakes in these cases–what it means when “gender” supplants sex and porn permeates our culture–it is only a matter of time before the winning streak breaks.

United States v. Skrmetti

In Skrmetti, the U.S. Department of Justice and the ACLU challenged Tennessee’s Senate Bill 1 (SB1), titled Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity. SB1 bans the use of puberty blockers, cross-sex hormones, and surgeries in minors when the interventions are prescribed to cosmetically align with the sex traits of the opposite sex. The United States argued that the ban violates the Equal Protection Clause of the United States Constitution because it discriminates based on the constitutionally protected traits of sex and transgender status. The ACLU, multiple “LGBTQ” advocacy groups, and a group comprising eleven U.S. Senators and 153 Members of the House of Representatives filed amicus briefs supporting the government, giving the lie yet again to the claim of the “trans” movement’s powerlessness.

WoLF’s argument. WoLF filed on the side of Tennessee. We countered the government’s sex discrimination argument, characterizing it as an attempt to “bootstrap an Equal Protection argument to the hard-won rights of women by claiming that SB1 constitutes a sex-based classification,” and arguing that “privileging gender inevitably disadvantages sex.” Stated differently, sex-based rights are meaningless unless they recognize distinctions between men and women.

But the centerpiece of our argument was a challenge to the very idea of “transgender” as a coherent identity, much less as a marginalized group entitled to special constitutional protection. We advanced a feminist critique of the trans identification, writing that:

“The difficulty with the assumption that the “transgender child” is a real identity goes beyond the legal difficulty of finding an immutable trait in a group defined by transition and beyond even the medical difficulty of asserting a right to medical care for a group not defined by any diagnosis. The difficulty is that there is no reason to believe such identity exists. No child is born in the wrong body, but to obscure this foundational problem, activists have engineered a definition of the “transgender child” that is as expansive as it is unfalsifiable. Because no one— not medical practitioners or researchers, not activists, not trans-identified people themselves—can say what distinguishes the so-called transgender child from other vulnerable young people. This failure not only puts these vulnerable young people at great risk of lifelong, irreversible medicalization; by hiding radical activist goals behind the archetype of the distressed “transgender child”, the failure turns what purports to be a civil rights movement for a small, oppressed minority group into a far-ranging effort to re-order society to the detriment of children, women, and LGB people.”

We argued that the “transgender child,” is “a fiction invented to launder outcomes that privilege adult men at the expense of women, children, and other vulnerable groups.” Our brief emphasized the harms to these groups from validating transgender identification, harms borne out in the erosion of female only spaces and sports and in the legal, social, and professional penalties to women who question the validity of transgender identification and activism.

How the Supreme Court ruled. Although Chief Justice Roberts’ opinion for the Court noted the “fierce scientific and policy debates about the safety, efficacy, and propriety” of sex trait modification interventions for minors, the opinion itself is dispassionate and legalistic, written in a dry tone that is increasingly absent from cases deciding hotly contested issues. The Court held that SB1 made distinctions based only on age and medical treatment, distinctions that receive no special protection under the Equal Protection Clause, and that SB1 made no distinctions based on sex or trans-identification.

This holding allowed the Court to avoid two questions that are critical to whether sex-based rights can survive the so-called transgender movement, a movement that despite its losses in the Supreme Court and in public opinion remains deeply entrenched in blue states, academia, the medical establishment, and other institutions. First, because the Court held that SB1 did not discriminate based on sex, the Court did not revisit the scope of Bostock v. Clayton County, the case holding that discrimination based on transgender identification (and sexual orientation) did constitute discrimination based on sex for purposes of a Title VII employment related matter. Although the Court in Bostock emphasized the narrow scope of its holding, the Biden administration, activists, and some courts ran with it, claiming the decision established a broad principle enshrining protections for gender, even when in conflict with sex-based rights.

While narrowing or better yet overruling Bostock (at least as it applies to gender identity) would have been welcome, the Court’s refusal to revisit Bostock is not indefensible: taking sex into account in medical decisions doesn’t implicate Bostock because doing so simply isn’t sex discrimination—if it were, gynecologists might have to figure out how to do pap smears on men. It is harder to defend the court’s refusal to answer a second important question: whether people who claim trans identification are a protected class. SB1 bans sex-trait modification procedures only when pursued to mimic the sex traits of the opposite sex, in other words, procedures pursued by people who claim trans identities. Moreover, the state legislative record showed that SB1 was enacted to promote acceptance by minors of their sex (and thus to discourage minors from pursuing the false promise of “transition.”) In other words, SB1 creates a classification based on trans-identification and targets those within the classification for differential treatment. And while it is true that the classification created by SB1 is trans-identified minors, that means only that the law classifies based on age and transgender status. It does not mean that a classification based on age shields a classification based on trans-identification from scrutiny. 

Justices Barrett, joined by Justice Thomas, and Justice Alito wrote separate concurrences to say they would have decided whether “trans” is a protected class, and they would have found that it is not. Unsurprisingly, it is only these three decisions that begin to address the stakes in the case. As Alito’s concurrence notes, SB1 tees up the question of how the Court should review discrimination based on transgender status under the Equal Protection Clause, which then begs the question of whether extending protected status to those who identify as trans nullifies the protected status of women. In a surprising development from the author of Dobbs v. Jackson Women’s Health, Justice Alito noted that while women had faced “severe and pervasive” discrimination, “the plaintiffs and their many amici have not been able to show a [similar] history of widespread and conspicuous discrimination” against people who identify as trans. Justice Thomas wrote a separate concurrence to address the harms of the medical interventions in question and Justice Barrett noted that “transgender status implicates several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams.”

Justice Sotomayor wrote the dissent, joined by Justice Jackson and Justice Kagan in part. The dissent would have found SB1 to discriminate based on sex and transgender status, and that both classifications merit intermediate scrutiny under the Equal Protection Clause. Justices Sotomayor and Jackson would have struck the law under an intermediate scrutiny standard. Justice Kagan wrote separately to say she would not have struck the law but would have remanded the case for further review under the intermediate scrutiny standard.

What the dissent did not consider is what it would mean to review the rights of the two groups under the same review standard in a case where the rights are in direct conflict, such as in single sex spaces and sports. If, for example, a female athlete claims a sex-based right to female only competition while a male athlete claims a right based on transgender status to compete with females, who wins? 

Recent developments may make it impossible for the Court to continue to skirt such conflicts. In his concurrence, Justice Alito noted that Courts of Appeals had split on the “important question” of whether classification based on transgender status warrants heightened scrutiny and that if the Court did not address it now, it would “almost certainly be required to do so very soon.” With the Court deciding to hear cases concerning male participation on women’s sports teams, it may be sooner even than expected.

Free Speech Coalition, Inc., et al. v. Paxton

The Free Speech Coalition is a group organized to fight restrictions on pornography, including efforts to protect children from viewing graphic sexual content online. The Coalition brought a challenge to Texas law HB 1181, which requires pornography sites to restrict access to those users who verify they are over eighteen years old. According to the Coalition, HB 1181 violates the First Amendment rights of adults, which includes the right to unrestricted, anonymous access to online pornography.

WoLF’s Argument. WoLF was the only feminist organization to file as amicus curaie in support of the Texas law. Our brief confronted head on what people are seeing when they view online pornography on sites like Pornhub: content that is disturbing, degrading, violent, and often nonconsensual and criminal. We focused on the harms from viewing such content, writing:

[a]t stake in this case is whether a state may act to safeguard children by ensuring they reach adulthood unharmed by exposure to Internet pornography. Pornography inflicts grievous harm in its production and consumption. Its transmission through the Internet amplifies these harms because of the ubiquitous and extreme nature of pornographic content readily available online. A state’s right to protect its children from these harms cannot be defeated by purported concerns about privacy and the chilling of speech, concerns revealed to be bogus by examination of pornographers’ own data handling practices.

Our brief exposed the pornographers’ First Amendment argument for what it was: an effort to elevate adult’s desire for unrestricted, anonymous access to pornography over the societal interest in protecting children from disturbing, harmful pornographic content.

How the Court Ruled. As in Skrmetti, the Court in Paxton skirted the central questions, like whether criminal behavior becomes protected speech once recorded and distributed for profit and whether the societal interest in protecting children from online pornography is so compelling as to overcome the purported First Amendment rights of pornography producers and adult consumers. Instead, Justice Thomas mired the decision in technical distinctions between speech that is obscene for minors and speech that is obscene for adults and the level of scrutiny courts should apply to each. The Court found that because HB 1181 “incidentally” burdened the First Amendment rights of adults, the law should be subject to an intermediate level of scrutiny. Because the Court acknowledged that protecting children from online pornography was “undoubtedly” a compelling interest, the Court upheld the law under that intermediate standard.

The dissent, written by Justice Kagan and joined by Justices Sotomayor and Jackson, also focused on the standard of review. Noting that the Court had on multiple occasions found restrictions on minors’ access to online pornography to be unconstitutional even when the restriction could be circumvented with age verification, the dissent argued that the Court should have applied strict scrutiny to HB 1181. Interestingly, Justice Kagan wrote that societal interests in protecting minors could overcome the claimed First Amendment rights of pornography users and producers, stating that “[a] law like H. B. 1181 might well pass the strict-scrutiny test.”

Mahmoud v. Taylor

In Mahmoud, religious parents challenged a Maryland public school policy of mandatory instruction in “LGBTQ” curriculum without allowing an opt out. The curriculum didn’t just expose children as young as preschoolers to gay, lesbian, and trans-identified characters, but included instruction that sex assignment was essentially a guess, that there are more than two sexes, that young children can know that they are transgender, and that children should be allowed to choose their pronouns and bathroom. The parents argued that the policy infringed their right to free exercise of religion under the First Amendment of the constitution by instructing their children in ideas about human sexuality at odds with their faiths.

WoLF’s Argument. WoLF argued that it wasn’t just religious families who were harmed by the schools’ policy. We argued that the school policies subjected all students to mandatory indoctrination into the quasi-religious dogma of gender ideology. As we wrote in our brief:

Both parties frame this matter as one concerning the rights of religious parents to opt out of public-school instruction in materials offensive to their religion, a right that principally implicates the Free Exercise Clause of the First Amendment. This framing deflects scrutiny from the nature of the contested materials themselves, materials that promote a mystical ideology known as “gender ideology” that is regressive and hostile to women and girls and neglects the rights of all students to be free from coercive indoctrination into a system of beliefs that is fundamentally religious in nature. Montgomery County’s mandatory instruction in this ideology must be struck down as an impermissible establishment of religion in violation of the Establishment Clause of the First Amendment.

While the parties made no distinction among the curriculum materials, WoLF called out a key difference:

The materials in question also address sexual orientation, the straightforward concept that some people are attracted to the opposite sex, some are attracted to the same sex, and some are attracted to both. As will be discussed, “gender identity” is an entirely different concept (and, because it denies the reality of sex is in fact antithetical to the idea of sexual orientation). This brief addresses only the “LGBTQ Inclusive” storybooks, instructor guidelines, and supporting materials that promote a belief in gender identity.

Our brief catalogued the unique harms to women, children, and LGB people from the indoctrination into and institutionalization of gender ideology.

How the Supreme Court Ruled. Justice Alito’s opinion in Mahmoud rests squarely on the Free Exercise rights of religious parents, holding that by refusing to allow religious parents to opt out of the “LGBTQ” curriculum, the schools had interfered with the rights of these parents to raise their children according to their faiths. Though there was extensive evidence in the record that nonreligious parents, teachers, and administrators also objected to the curriculum, missing from the majority opinion, Justice Thomas’s concurrence, and the dissent is any discussion of how the materials infringed the secular interest in public education free from mystical indoctrination, much less the harm to children and especially girls from sowing confusion about sex.

In fact, the opinions made no distinction between materials depicting LGB characters and materials overtly promoting gender dogma. But the former may be largely benign, while the latter confounds the reality of our sexed existence, including such facts as: only the female of the two sexes gets pregnant, is generally physically weaker than the male, and is far more likely to be a victim of and far less likely to commit acts of sexual violence. Confounding these facts with notions about gender as independent from sex and the idea that sex change is possible and that boys should be able to use girls’ facilities if they say they are girls is harmful to all children, but disproportionately so to girls. The Court’s Free Exercise analysis, which focused on the beliefs of the religious parents, allowed it to avoid scrutiny of the LGBTQ materials themselves. As a result, the court had no opportunity to dissect gender ideology and its distinctly anti-reality and anti-woman bent.

The Downside of so much Winning

Our side is winning, but not being vindicated.

In Skrmetti, Justice Roberts seems to anticipate the critique of the majority’s tepid analysis of a burning hot cultural issue, writing:

[o]ur role is not “to judge the wisdom, fairness, or logic” of the law before us, but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process (citation omitted).

His justification misses the mark. The problem is not the unwillingness to make policy choices that are properly left to legislatures. The problem is distinctly a failure of judging, a refusal to engage in a radical analysis in the sense of an analysis that probes the root of the thing. In Skrmetti, this refusal meant the Court never questioned what it would mean to give protected status to a group that promotes sex trait modification for minors; in Paxton, it excused the Court from confronting the limits of First Amendment analysis when considering content that is corrosive, and potentially addictive and criminal; in Mahmoud, it precluded a rigorous dissection of harmful dogma being foisted onto public school children—religious and secular.

This insistence on shoehorning particular and sometimes novel matters into existing categories is exactly where the Court choked in Dobbs. Justice Alito wrote for the majority:

[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. That provision has been held to guarantee some rights that are not mentioned in the Constitution, but any such right must be “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.”

But you’d hardly expect to find a right to abortion spelled out in a document written at a time when married women had the status of property, or “deeply rooted in the history and tradition” of a nation where women have faced “severe and pervasive” discrimination in law and in fact. It is difficult to see how an issue that uniquely affects women can receive fair treatment under the Court’s standard.

The problem with the three recent cases is similar: the Court swept them into existing legal frameworks concerning age-based discrimination and categories of speech and Free Exercise doctrine. Then the frameworks took on a life of their own, diverting the Court from an unflinching analysis of what was in front of them: in gender activism, a sexual and political effort to subordinate women and girls by claiming their rights, spaces, and very being for men; in pornography, the fetishization and monetization of women’s subjugation as a tool of continued oppression. Until the Court does that work, odds are it will keep trotting out the wrong rationale, occasionally in support of the right outcome. But sometimes not.


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