I've posted a draft article on the Supreme Court's Skrmetti decision on SSRN. I argue that this harmful decision represents the worst sort of legal formalism, but does not predetermine the results in other transgender rights cases or eviscerate sex discrimination law. papers.ssrn.com/sol3/papers....

Oh dear. RIP to one of the great ones, as a scholar and as a person.

It was an honor to be part of the UCI Law Supreme Court term in review event with Mario Barnes, Courtney Cahill, Erwin Chemerinsky, and Mark Joseph Stern. @mjsdc.bsky.social youtu.be/Zj3T7ZAxjYM?...

To understand this moment, we need more investigative journalism into the right's "war on gender ideology," so we can better understand what led to this wave of anti-transgender laws and their connection to anti-feminist and LGBTQ rights movements more broadly. www.nytimes.com/2025/02/08/m...

I think the frame of not obeying in advance is exactly the way to think about it. As with so many other things, the vector is going in a bad direction. But slowing it down makes a huge difference in protecting real people right now.

Two more important notes on Skrmetti's limits. It does not mean that legislatures can simply frame rules enforcing sex stereotypes at a higher level of generality, i.e., requiring men and women to do jobs "consistent with their sexes," to avoid heightened scrutiny. It's limited to health care. 1/2

Great explanation from @chasestrangio.bsky.social on the legal arguments that remain to challenge anti-transgender policies after Skrmetti. Do not obey in advance!

I don't agree. Skrmetti applies narrowly to classifications based on "treatments" and "medical uses" for purposes of treating gender dysphoria. It is very important to the majority that this law targeted medical treatments that "are uniquely bound up in sex." We do not need to read this broadly.

As a matter of formalistic logic, a sex classification is a sex classification, even if the law contains other classifications. But on p.5 of the opinion, the Court says the age limit is important to its holding, even though no party contested it. So it must be doing work. Let's take them seriously.

An important thread on today’s Skrmetti decision from my colleague, @jessicaclarke.bsky.social—one of the leading sex discrimination scholars in the country.

Thank you David. Please everyone--do not overread Skrmetti, and do not obey in advance!

Today's Skrmetti opinion is devastating to transgender children and families who live in states with cruel laws barring gender affirming care. But it is very important to recognize this opinion does not give private entities, legislatures, or the President carte blanche to discriminate! 1/x

I am so very sorry to everyone who is personally impacted by today's Skrmetti decision. It is both extremely damaging and limited in some important ways. I will have more to say when I finish processing.

For context and critique of today's Skrmetti opinion, check out my article in the Chicago Law Review, Scrutinizing Sex. papers.ssrn.com/sol3/papers....

"I have never seen a record where racial discrimination by the government is so palpable... Have we fallen so low? Have we no shame?" Judge Young (Reagan appointee) ruling in our favor against Trump research cuts. Read more of the Judge's fiery language: www.ifyoucankeepit.org/p/breaking-n...

My piece on the havoc wrought by Trump's "Defending Women" executive order--it goes far beyond harming trans people. www.newyorker.com/news/the-led...

Good news from Montana--a state court has struck down a gender affirming care ban, calling the ban what it is: an ideological attack on transgender people. Many state constitutions offer more protection against gender discrimination than the federal one. www.aclumontana.org/sites/defaul...

COMPARE: the results of fighting back to the results of not fighting back

Working with an interdisciplinary team, we have developed a website to communicate how the White House's proposed cuts to health research would cause losses of $16B and 68,500 jobs. Find out how your community may be impacted. Explore more at SCIMaP: scienceimpacts.org a 🧵

In today’s Jotwell, Prof. Mila Sohoni kindly reviews my article, Ghostwriting Federalism, 133 Yale L.J. 1802 (2024), which shows how the executive branch writes state laws. And she starkly lays out the stakes for presidential power in our current moment. adlaw.jotwell.com/re-routing-p...

Trump's lawyers are absolutely flailing in the courts right now

Great letter from my colleagues @sbagen.bsky.social, @mjschlanger.bsky.social and other legal scholars across the country explaining why it is not necessary to start eliminating university programs because Trump

Great opinion by District Judge Lauren King granting a TRO against Trump's lawless executive order attempting to intimidate hospitals into cutting off gender affirming health care for people under 19. storage.courtlistener.com/recap/gov.us...

After curtailing trans rights in order to "protect women," the Trump administration announces it will also "protect women" by *checks notes* eliminating funding to prevent violence against women. 19thnews.org/2025/02/offi...

A powerful, scary, and important @mashagessen.bsky.social piece that speaks to the question “To Obey or Not Obey?” | The Chilling Consequences of Going Along With Trump www.nytimes.com/2025/02/08/o...

Here is another excellent complaint challenging the Trump administration's cruel and counterproductive new policies targeting transgender people. assets.aclu.org/live/uploads...

An especially important time to understand transgender history - my latest with Brianne Felsher and Shay Olmstead on America's long history of legal discrimination against gender non-conformity www.latimes.com/opinion/stor...

Serious question. Does anyone actually subscribe to "gender ideology" as it is defined by the Trump Administration in this EO? Please link to specific sources if you think so.

I wrote an article providing legal context on the ideology behind the term "biological sex." I'm so very sorry it is relevant again. papers.ssrn.com/sol3/papers....

5. Such funds have a long history, from the earliest days of the republic, to the September 11 Victim Compensation Fund and the BP Oil Spill Fund. When designed appropriately and transparently, they can help those in dire need begin the long process of recovery.

4. Second, in addition to the litigation we will likely see in the coming months and years to determine responsibility for the fires, the California state legislature should quickly consider creating a victim compensation fund.”

3. “We live in this smart phone era where we’re seeing that survivors wind up being a key part of their own cases …” “Document all the money you’re spending on lodging, on food, travel, anything and everything, that could be something you’re able to get compensated on later on.”

2. First, everyone should take this advice from this article to document their damages and expenses, regardless of whether they plan to participate in litigation, work with FEMA, or file insurance claims. www.law.com/therecorder/...

I am honored that my article is appearing in such good company in this new issue of the University of Chicago Law Review--check out these important pieces on secret settlements, religion, and bankruptcy: lawreview.uchicago.edu/print-archiv....

My article Scrutinizing Sex is out in the Chicago Law Review today. I argue that the Roberts Court's equal protection jurisprudence, including cases on both race and sex, requires a decision for the transgender plaintiffs in Skrmetti. lawreview.uchicago.edu/sites/defaul...

Good take here. An opinion upholding TN's ban on health care for transgender minors "won't write" but that doesn't mean the Supreme Court won't write it anyway.

Following up on yesterday’s thread about the Skrmetti arguments: In addition to the critical question of whether the bans get heightened scrutiny, I think another critical dynamic with Barrett, Kav, and Roberts is how broad or narrow a potential loss could be.

I talked to Bloomberg Law about Justice Gorsuch’s silence at the Skrmetti argument. news.bloomberglaw.com/us-law-week/...

Hi @kredburn.bsky.social - yes he was quite confident about that. Less so on sports and bathrooms (tho those justices were very interested in sports, were they not)? Putting an open access link to my full story here for your followers. www.nytimes.com/2024/12/04/u...

In what other oral arguments, besides Janus, has Justice Gorsuch been completely silent?

Justice Sotomayor explains why courts must intervene. "When you're 1% of the population or less, it's very hard to see how the democratic process is going to protect you."

The Solicitor General of TN is incorrect about whether kids who are not transgender can receive gender affirming care.

On the history of cross dressing bans, see @kredburn.bsky.social. This argument is why we need more transgender legal history.

Important point of clarification from Chase Strangio: there is a history of de jure discrimination against transgender people, in terms of exclusions from the military, criminal bans on cross dressing, and other laws. (Don't forget marriage restrictions).

WHY DID PRELOGAR CONCEDE THAT THERE IS NO HISTORY OF LAWS DISCRIMINATING AGAINST TRANS PEOPLE

1/X An important Equal Protection case, United States v. Skrmetti, will be heard by the SCT tomorrow (Wed. Dec. 4). For those who have not been following the case closely, a 🧵 about the case, why it is important & what to watch for. I'll do my best to explain in lay terms & stay away from legalese.