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The Supreme Court’s incoherent new attack on trans rights, explained

5 12
18.06.2025
A transgender rights supporter takes part in a rally outside of the US Supreme Court as the high court hears arguments in a case on transgender health rights on December 4, 2024, in Washington, DC. | Kevin Dietsch/Getty Images

It was obvious, if you listened to the Supreme Court’s oral argument in United States v. Skrmetti last December, that the Court would vote — most likely along party lines — to uphold state laws banning many forms of transgender health care for minors. So nothing about Chief Justice John Roberts’s majority opinion in Skrmetti is really surprising. All six of the Court’s Republicans voted to uphold these laws, and all three of the Court’s Democrats dissented.

But, as a matter of judicial craftsmanship, Roberts’s opinion is disappointing even by the standards of the Roberts Court. It draws incoherent distinctions. It relies on old and widely criticized precedents to undermine legal principles that are well established by more recent cases. At times in his opinion, Roberts seems to misread statutory language that he just quoted a paragraph or two earlier.

It appears, in other words, that the six justices in the majority started with the outcome that they wanted — bans on transgender health care for minors must be upheld — and then contorted their legal reasoning to fit that result.

Even if you share that goal, the decision in this case was unnecessary. As Justice Elena Kagan points out in a brief dissenting opinion, the issue before the Supreme Court Skrmetti concerned a threshold question: whether the Tennessee law at issue in this case should receive a heightened level of scrutiny from the courts before it was either upheld or discarded. The ultimate question of whether to uphold Tennessee’s law was not before the justices.

The Court’s Republicans, in other words, could have applied existing law, sent the case back down to the lower courts to apply this “heightened scrutiny,” and then ruled on the bans in a future case. Instead, Roberts’s Skrmetti opinion went further to rule on the legality of the bans, and consists of about two dozen pages of excuses for why the Court’s previous anti-discrimination decisions somehow do not apply to Tennessee’s law.

One virtue of this approach is that it minimizes the broader implications of Skrmetti. At oral arguments, several justices suggested that, in order to uphold........

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