I think this significantly understates how challenging this decision is from a trans perspective. Kavanaugh’s opinion does not even refer to the plaintiffs by their correct pronouns, instead calling them “biological males” throughout. It gives almost no scaffolding for future challenges - and gestures very clearly to how bathroom bans and other restrictions on single sex spaces would fall under its logic.
I get that and reference that initial point, but I also think there are a lot more openings here than the anti-trans folks wanted — and don’t want that to be ignored today.
I think this misses the mark. For instance, the court in theory left the door open to bring a trans status claim. But by the logic of the decision, as long as a law could be reasonable as to most (cis) men or (cis) women, the law will be upheld. That gives very little for a future challenge based on trans status to do, even if it could theoretically be allowed. This is what they did with Roe v Wade - they’re not going to overturn Bostock today, they’re going to narrow its application over and over until it is meaningless, and then deliver the final blow.
Commentators said the exact same thing over and over again about abortion rulings - that it wasn’t as bad as it could be - without looking at the full picture. That pattern is repeating with trans rights.
Yeah, I’m not going to fight this point. I don’t disagree it’s bad — but I also made clear that I think it’s wrong, so, I’m not sure what more I can say than that he got it wrong and to highlight some of the ways that he did so. I also think it’s important, along with that, to highlight where he specifically said the case had not decided issues.
(I do think your Roe comparison is off because it’s just describing a completely different scenario, and it’s not helpful to pretend they’re the same.)
The same organizations are using the same funding to replicate the same litigation strategy. The doctrines might be different but the people making the arguments are the same. Bodily autonomy issues (which abortion and trans rights both are) rise and fall together culturally, and I expect they will in the courts as well.
All I can say is that trans people are currently assessing their personal risk, and I don’t think that it would be wise to say we should take Kavanaugh’s offhand remarks about “respect” to be an indication that the courts will be friendly.
Your analysis is spot on. It’s exactly the same playbook as Roe. It will come to exactly the same conclusion. The idea that it’s not so bad because they said be nice, kinda, while now having invalidated even birth certificate changes, is honestly just infuriating. I understand the desire for copium. But it’s not helpful.
It’s not the same playbook. Ginsburg died. The Bostock majority was holding on by a thread almost immediately. And then the anti-trans legislative backlash happened.
I don’t think we disagree about the reality here; I just think we disagree about presentation and what it was important for me to talk about today in my initial story about this decision.
To the extent we disagree even, I don’t know that we actually do. I think everything going on right now is far more tentative than it is set in stone, and I wish my first report on this could have been 4,000 words, but this is the time I had and I didn’t want to hold off publishing until late tonight when I was already later than I wanted to be with publishing. (Hence, the last paragraph.)
Thanks! I also think the road from Alito’s comments about equal protection in the opening of Dobbs (p 10-11) was a direct route to Skrmetti, which is how we ended up with this opinion.
It’s just tough to read easily one of the most dehumanizing opinions I’ve seen from the court on trans issues and turn to see a writer I respect spend the fourth paragraph praising the opinion for its softness. I’m not sure how to articulate how dehumanizing it is to be called a “biological x” without sounding like a hysterical wokie, but it really feels like being treated like an animal to me.
I agree and will always be grateful to Mr. Geidner. As I often find myself thinking: we need to balance many things to be grateful, most of which are local to us and nothing to do with cases and statutes and executive orders for with clear eyed realization of what is happening here - things that do in fact touch the very fundamentals of our existence. I wrote another comment in this thread hope it also gets seen and heard.
Hmm … Kavanaugh and “sports context” — wasn’t he the one who suggested that his named stops would be momentary and unobtrusive, not racial profiling codified?
Majority justification and the dissenting rebuttal dance around the core issue.
Sotomayor responds the points made at face value that trans girls and trans women are inherently better at sports than cis girls as long as they went through a testerone-driven puberty, which is not substantiated.
But more importantly the question of fairness and safety is not considered for cis women. And when we look at the majority, we can see why.
The majority never once uses pronouns for BPJ. Every instance they use initials. They do not accept that trans girls are girls, trans boys are boys, or that non binary people exist. They do not accept the basic reality that trans people exist as legitimate gender identities. Everything else flows from that.
Nobody brings up if cis girls with PMOS have an "advantage". Or cis girls who are 6 feet tall. As soon as you accept that they are _girls_ it's a non-issue. But nobody bothers to address that. Very thing else is theatre.
Look at what this administration has tried to do with SFFA v Harvard. Despite the softer tone they will interpret this ruling way beyond its boundaries to the detriment of our trans students
The liberals also agreed that trans people do not get Title IX protection because apparently if you go back a couple decades and a woman looked like a boy at birth that's all she'll ever be according to them.
No, that's not what they said. See pages 30-33 of Sotomayor's opinion, but, as I note in the article, B.P.J. did not dispute the "biological sex" definition for this case, so Sotomayor explained that the court did not need to reach that here. (She also highlighted that this was only decided in the "sports context," as I also noted.)
But the court has now allowed someone whose birth certificate was corrected to be dealt with as a biological male who identifies as a woman - or so it seems - despite state statutes that provide a person can change their sex by medical procedure. BC’s already don’t work now for a passport, regardless of court findings. What do you think will happen in eg the trans prisoner cases even in post operative women when that comes on before this court ? What about the intersection of these - state and federal id being in conflict, federal controlling, thus what does one do when one must, say, pee in a federal building and one is challenged ? This is a capstone on a cascading set of failures, and that’s all there is to it. Does one imagine that the legal erasure of trans identities backed by the threat of state violence is more palatable because the court said to be nice about it ? Come on.
I think this significantly understates how challenging this decision is from a trans perspective. Kavanaugh’s opinion does not even refer to the plaintiffs by their correct pronouns, instead calling them “biological males” throughout. It gives almost no scaffolding for future challenges - and gestures very clearly to how bathroom bans and other restrictions on single sex spaces would fall under its logic.
I get that and reference that initial point, but I also think there are a lot more openings here than the anti-trans folks wanted — and don’t want that to be ignored today.
I think this misses the mark. For instance, the court in theory left the door open to bring a trans status claim. But by the logic of the decision, as long as a law could be reasonable as to most (cis) men or (cis) women, the law will be upheld. That gives very little for a future challenge based on trans status to do, even if it could theoretically be allowed. This is what they did with Roe v Wade - they’re not going to overturn Bostock today, they’re going to narrow its application over and over until it is meaningless, and then deliver the final blow.
Commentators said the exact same thing over and over again about abortion rulings - that it wasn’t as bad as it could be - without looking at the full picture. That pattern is repeating with trans rights.
Yeah, I’m not going to fight this point. I don’t disagree it’s bad — but I also made clear that I think it’s wrong, so, I’m not sure what more I can say than that he got it wrong and to highlight some of the ways that he did so. I also think it’s important, along with that, to highlight where he specifically said the case had not decided issues.
(I do think your Roe comparison is off because it’s just describing a completely different scenario, and it’s not helpful to pretend they’re the same.)
The same organizations are using the same funding to replicate the same litigation strategy. The doctrines might be different but the people making the arguments are the same. Bodily autonomy issues (which abortion and trans rights both are) rise and fall together culturally, and I expect they will in the courts as well.
All I can say is that trans people are currently assessing their personal risk, and I don’t think that it would be wise to say we should take Kavanaugh’s offhand remarks about “respect” to be an indication that the courts will be friendly.
I didn’t write that.
Your analysis is spot on. It’s exactly the same playbook as Roe. It will come to exactly the same conclusion. The idea that it’s not so bad because they said be nice, kinda, while now having invalidated even birth certificate changes, is honestly just infuriating. I understand the desire for copium. But it’s not helpful.
It’s not the same playbook. Ginsburg died. The Bostock majority was holding on by a thread almost immediately. And then the anti-trans legislative backlash happened.
I don’t think we disagree about the reality here; I just think we disagree about presentation and what it was important for me to talk about today in my initial story about this decision.
To the extent we disagree even, I don’t know that we actually do. I think everything going on right now is far more tentative than it is set in stone, and I wish my first report on this could have been 4,000 words, but this is the time I had and I didn’t want to hold off publishing until late tonight when I was already later than I wanted to be with publishing. (Hence, the last paragraph.)
Thanks! I also think the road from Alito’s comments about equal protection in the opening of Dobbs (p 10-11) was a direct route to Skrmetti, which is how we ended up with this opinion.
It’s just tough to read easily one of the most dehumanizing opinions I’ve seen from the court on trans issues and turn to see a writer I respect spend the fourth paragraph praising the opinion for its softness. I’m not sure how to articulate how dehumanizing it is to be called a “biological x” without sounding like a hysterical wokie, but it really feels like being treated like an animal to me.
I agree and will always be grateful to Mr. Geidner. As I often find myself thinking: we need to balance many things to be grateful, most of which are local to us and nothing to do with cases and statutes and executive orders for with clear eyed realization of what is happening here - things that do in fact touch the very fundamentals of our existence. I wrote another comment in this thread hope it also gets seen and heard.
Booooo! We knew it was coming.
Hmm … Kavanaugh and “sports context” — wasn’t he the one who suggested that his named stops would be momentary and unobtrusive, not racial profiling codified?
Majority justification and the dissenting rebuttal dance around the core issue.
Sotomayor responds the points made at face value that trans girls and trans women are inherently better at sports than cis girls as long as they went through a testerone-driven puberty, which is not substantiated.
But more importantly the question of fairness and safety is not considered for cis women. And when we look at the majority, we can see why.
The majority never once uses pronouns for BPJ. Every instance they use initials. They do not accept that trans girls are girls, trans boys are boys, or that non binary people exist. They do not accept the basic reality that trans people exist as legitimate gender identities. Everything else flows from that.
Nobody brings up if cis girls with PMOS have an "advantage". Or cis girls who are 6 feet tall. As soon as you accept that they are _girls_ it's a non-issue. But nobody bothers to address that. Very thing else is theatre.
Look at what this administration has tried to do with SFFA v Harvard. Despite the softer tone they will interpret this ruling way beyond its boundaries to the detriment of our trans students
The liberals also agreed that trans people do not get Title IX protection because apparently if you go back a couple decades and a woman looked like a boy at birth that's all she'll ever be according to them.
No, that's not what they said. See pages 30-33 of Sotomayor's opinion, but, as I note in the article, B.P.J. did not dispute the "biological sex" definition for this case, so Sotomayor explained that the court did not need to reach that here. (She also highlighted that this was only decided in the "sports context," as I also noted.)
But the court has now allowed someone whose birth certificate was corrected to be dealt with as a biological male who identifies as a woman - or so it seems - despite state statutes that provide a person can change their sex by medical procedure. BC’s already don’t work now for a passport, regardless of court findings. What do you think will happen in eg the trans prisoner cases even in post operative women when that comes on before this court ? What about the intersection of these - state and federal id being in conflict, federal controlling, thus what does one do when one must, say, pee in a federal building and one is challenged ? This is a capstone on a cascading set of failures, and that’s all there is to it. Does one imagine that the legal erasure of trans identities backed by the threat of state violence is more palatable because the court said to be nice about it ? Come on.