The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

About The Volokh Conspiracy Editorial Independence Who we are Books Volokh Daily Email Archives Search DMCA RSS

If Chiles Was So Lopsided, Why Did The Court Deny Cert In Tingley?

The legal landscape for transgender cases has changed since 2023.

Josh Blackman | 4.2.2026 1:23 AM

Back in August 2025, I speculated about why the Court granted certiorari in Chiles v. Salazar, yet denied review two years early in Tingely v. Ferguson, an identical case from the Ninth Circuit. I queried, "Perhaps the climate of the day on transgender issues, in the wake of Skrmetti, make this issue more palatable?"

On Tuesday, the Court decided Chiles. The 8-1 vote was quite lopsided. Only Justice Jackson was in dissent. She articulated a very cramped conception of free speech in the commercial context. Justices Kagan and Sotomayor joined the majority opinion in full. They even wrote that Jackson "reimagin[ed]—and in that way collaps[ed]—the well-settled distinction between viewpoint-based and other content-based speech restrictions." I think Kagan and Sotomayor were correct. Indeed, it was very significant they felt compelled to respond forcefully to Justice Jackson. There have been press reports of how Justice Kagan and Sotomayor are unhappy with Justice Jackson. This opinion may represent those tensions boiling over.

Given that this case was so straightforward, why didn't the Court grant Tingley in 2023. The legal issues are the same. There has been no intervening free speech precedent.

I would posit that the legal landscape for transgender cases has changed since 2023. President Trump's executive order from January 2025, rejecting the entire concept of gender identity, reflects a broader societal shift. In the span of about a year, the Court will have decided Skrmetti, Mahmoud, Chiles, Mirabelli, and the Title IX case. While Srkmetti and Mahmoud split 6-3, I think the Title IX case may also be lopsided. Based on the oral argument, Justice Kagan seemed sympathetic to the view that Title IX bars biological males in female sports.

The legal landscape for transgender cases has shifted since 2023. Most Americans, and even legal elites, see a distinction between gay and lesbian rights and transgender rights. You can support gay marriage but oppose providing puberty blockers to minors. You can support gay troop leaders but oppose drag queen storytime. You can oppose electro-shock therapy for gay teens and also oppose public schools secretly transitioning teens without telling parents. You can oppose firing a person because they're gay but favor excluding biological males from female spas. And so on.

I've never fully understood why LGB was merged with T. Sexual orientation and gender identity are such different concepts. For gays and lesbian people, the mantra is "we were born this way, so accept us as we are" But for transgender people, the message is the opposite: "we were not born this way, so accept us as we tell you we are."

I think the schism between LGB and T is now inevitable. At some point, gay rights groups might re-evaluate their priorities.

Start your day with Reason. Get a daily brief of the most important stories and trends every weekday morning when you subscribe to Reason Roundup.

Δ

URL

This field is for validation purposes and should be left unchanged.

Email(Required)

Subscribe

NEXT: Edited Version of Chiles v. Salazar for Barnett/Blackman supplement

Josh Blackman is a constitutional law professor at the South Texas College of Law Houston and the President of the Harlan Institute. Follow him @JoshMBlackman.

Share on FacebookShare on XShare on RedditShare by emailPrint friendly versionCopy page URL Add Reason to Google

Media Contact & Reprint Requests

Show Comments (0)

© Reason.com