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.
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.)
Chris, I think writing this post about the BPJ decision was by necessity a balancing act and I appreciate your efforts in trying to find that balance, and, like you said get something published quickly as so many of us were anxious to seeyour analysis.
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.
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.
A concern I have is the plain statement by the majority stating that “sex” means biological sex, then discusses only “two sexes” those being “biological female” and “biological male.” Sotomayor refers to this in her dissent: “The majority reaches this conclusion not by assuming that ‘sex’ means ‘biological sex,’ or sex identified at birth, in Title IX, the Javits Amendment, and its accompanying regulations, but by saying that it does, at least in the sports context.”
My concern is twofold: (1) seems like this opens the door to Title IX sex discrimination cases by cisgender girls & women in states that protect transgender athletes, forcing the striking down of those states’ protective laws. (2) can this plain statement about sex be taken out of the sports context into future litigation before the Supreme Court says so? Eg, bathrooms, changing rooms, jails… I mean, when it is taken out of the sports context will it work to further restrict our rights?
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?
The cherry on the top was Kavanaugh ending his opinion by pretending that he wanted people to "respect us" after misgendering us religiously in the exact same opinion.
Looking at this and, say, the Kavanaugh stop verbiage, it seems clear to me that Kavanaugh is disconnected from the realities of American life. Nothing about any of these anti-trans laws and arguments have been anything remotely close to being respectful. Not in the way they're presented, argued, designed, or delivered. Feigning dignity at the top court as you disregard respectful terminology, legitimatize anti-trans talking points in law discussions, and deliver an unfavorable ruling is incredibly disrespectful, to say the least.
Thank you for pointing out the verbiage and for the excellent coverage as always. I do agree that this could have been much worse but worry what this means for arguments moving forward. We've seen how Kavanaugh's sloppiness has played out before, so I hope that this scenario doesn't go down the same road...
And if it does, can this "respectful" man own up to his mistakes and recognize the gravity of his position already?
I am 100% socially in favor of anything and anyone you want to be, but "According to B. P. J., transgender girls and women who both receive gender-affirming treatment and have never experienced endogenous male puberty neither possess any inherent athletic advantage nor pose any safety risks because of their sex identified at birth" does not take into physiological account that physical prowess takes shape in utero. [PhD in Health Ed w years of mandatory anatomy, physiology, sports medicine.] Just sayin'
Thanks for your coverage Chris. I hope you’re able to get some rest. It’s been a rough week on top of weeks and months and years.
This was a terrible decision using dehumanizing rhetoric and it very much could have been worse. That which could’ve been worse may or may not come to pass. We will keep on.
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.)
I did ban two people from commenting due to their now-deleted anti-trans comments. My place; my rules.
Thank you for all you do Chris, including banning the anti-trans commentors!
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.
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.)
Chris, I think writing this post about the BPJ decision was by necessity a balancing act and I appreciate your efforts in trying to find that balance, and, like you said get something published quickly as so many of us were anxious to seeyour analysis.
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.
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.
A concern I have is the plain statement by the majority stating that “sex” means biological sex, then discusses only “two sexes” those being “biological female” and “biological male.” Sotomayor refers to this in her dissent: “The majority reaches this conclusion not by assuming that ‘sex’ means ‘biological sex,’ or sex identified at birth, in Title IX, the Javits Amendment, and its accompanying regulations, but by saying that it does, at least in the sports context.”
My concern is twofold: (1) seems like this opens the door to Title IX sex discrimination cases by cisgender girls & women in states that protect transgender athletes, forcing the striking down of those states’ protective laws. (2) can this plain statement about sex be taken out of the sports context into future litigation before the Supreme Court says so? Eg, bathrooms, changing rooms, jails… I mean, when it is taken out of the sports context will it work to further restrict our rights?
Yes and yes. Nothing is certain until there is a ruling but the foundation for that was built by the BPJ ruling as you observed.
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?
Booooo! We knew it was coming.
The cherry on the top was Kavanaugh ending his opinion by pretending that he wanted people to "respect us" after misgendering us religiously in the exact same opinion.
That level of fake has me seeing red
Looking at this and, say, the Kavanaugh stop verbiage, it seems clear to me that Kavanaugh is disconnected from the realities of American life. Nothing about any of these anti-trans laws and arguments have been anything remotely close to being respectful. Not in the way they're presented, argued, designed, or delivered. Feigning dignity at the top court as you disregard respectful terminology, legitimatize anti-trans talking points in law discussions, and deliver an unfavorable ruling is incredibly disrespectful, to say the least.
Thank you for pointing out the verbiage and for the excellent coverage as always. I do agree that this could have been much worse but worry what this means for arguments moving forward. We've seen how Kavanaugh's sloppiness has played out before, so I hope that this scenario doesn't go down the same road...
And if it does, can this "respectful" man own up to his mistakes and recognize the gravity of his position already?
I am 100% socially in favor of anything and anyone you want to be, but "According to B. P. J., transgender girls and women who both receive gender-affirming treatment and have never experienced endogenous male puberty neither possess any inherent athletic advantage nor pose any safety risks because of their sex identified at birth" does not take into physiological account that physical prowess takes shape in utero. [PhD in Health Ed w years of mandatory anatomy, physiology, sports medicine.] Just sayin'
Thanks for your coverage Chris. I hope you’re able to get some rest. It’s been a rough week on top of weeks and months and years.
This was a terrible decision using dehumanizing rhetoric and it very much could have been worse. That which could’ve been worse may or may not come to pass. We will keep on.
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.)