The Archaic Sex-Discrimination Case the Supreme Court Is Reviving

The Atlantic

10 hours ago

The Supreme Court's decision last week in United States v. Skrmetti will have direct consequences for many transgender minors. Tennessee's law, which the Court upheld, prohibits people under age 18 from accessing certain kinds of treatment, such as hormones and puberty blockers, to treat gender dysphoria (the condition in which an individual's sex does not align with their gender identity). But the consequences will be indirect as well, and reach beyond the realm of transgender rights—potentially representing a setback for gender equality and the enforcement of antidiscrimination law.
The majority opinion, written by Chief Justice John Roberts and joined by the five other Republican appointees, revives an outdated case, Geduldig v. Aiello, that blessed discrimination based on archaic thinking. If the Republican appointees plan to revive this older case, they will take the law and the country back to a time when the government used the existence of 'biological differences' between men and women to excuse all kinds of discrimination against women. The Court's logic underscores the extent to which the ideology and methodology of the conservative justices threaten many of the hard-fought civil-rights protections of the 20th century.
The key issue in Skrmetti was whether Tennessee's law, and others like it, requires heightened constitutional scrutiny. The Court said it does not and rejected two different theories to the contrary—first, that the law discriminates on the basis of sex, and second, that the law discriminates on the basis of gender identity against trans minors.
Roberts's majority opinion first insisted that the law does not constitute sex discrimination because it concerns a medical procedure for minors—the law prohibits using hormones or puberty blockers to treat minors for gender dysphoria. Therefore, Roberts reasoned, the law distinguishes between persons on the basis of medical treatment and age rather than sex.
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Roberts next explained that the law does not constitute discrimination on the basis of gender identity—discrimination against transgender individuals as such. The Court's logic went as follows: Although the law restricts access to hormones and puberty blockers to treat gender dysphoria, both transgender and cisgender individuals can access these treatments for other conditions. Therefore, the Court suggested, even though transgender people are the only group negatively affected by the law, it still does not amount to discrimination against them, because they, along with cisgender individuals, can still receive hormones and puberty blockers as treatment for conditions other than gender dysphoria. (In a concurring opinion, Justices Amy Coney Barrett, Clarence Thomas, and Samuel Alito indicated that even if a law did specifically and overtly discriminate on the basis of transgender status, they still would not subject the law to heightened scrutiny.)
As support for the majority's claims, the Court cited Geduldig v. Aiello, a 1974 case about sex discrimination that somewhat infamously concluded that discrimination on the basis of pregnancy does not constitute discrimination on the basis of sex. The case concerned California's disability-insurance program, which excluded coverage for any disabilities arising from pregnancy. Sure, the Geduldig Court acknowledged, the group excluded from the disability-insurance program by the pregnancy-discrimination provision included only women. But the group of people who could access the state's disability-compensation benefits for reasons other than pregnancy included both women and men. 'The program divides potential recipients into two groups—pregnant women and nonpregnant persons. While the first group is exclusively female, the second includes members of both sexes,' the Court wrote. In other words, the law didn't exclude all women from coverage, just those women who were unable to work because of pregnancy.
Geduldig also gestured to the idea that pregnancy reflects an objective biological condition, which, the all-male justices explained, made the law legitimate and meant that the law was not a form of discrimination. 'Normal pregnancy,' the justices opined, 'is an objectively identifiable physical condition with unique characteristics.' At the time Geduldig was decided, laws that explicitly and specifically discriminated on the basis of sex were not subject to heightened judicial scrutiny. The courts instead excused and explained away the discrimination by invoking the biological differences between men and women—legitimate reasons for legitimate discrimination.
Many observers of constitutional law thought, until recently, that Geduldig had been consigned to history. The decision was viewed as an anomaly and outdated not only because of its reasoning, but also because it had been whittled away and rejected by both Congress and the Supreme Court. Congress overturned the result in Geduldig when, in 1978, it designated pregnancy discrimination as a species of sex discrimination. The Supreme Court also declined to apply Geduldig in cases where states sought to invoke biological differences between men and women to excuse discrimination against women. For example, in United States v. Virginia, the Court rejected the argument that Virginia could maintain a men's-only military-leadership academy because the state insisted that women, due to their biology, could not conform to the school's rigorous methods. Although Congress, by statute, prohibited pregnancy discrimination in employment, that did not change the Constitution. Similarly, although the justices weakened or ignored Geduldig, they never outright overruled it. Justice Ruth Bader Ginsburg called for Geduldig to be formally overruled, perhaps recognizing that the Court's failure to do so left the decision available to be invoked in the future to protect other discrimination.
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In Skrmetti, the Court dropped even more hints that it is open to green-lighting more sex discrimination. Roberts's majority opinion acknowledged that 'a law that classifies on the basis of sex may fail heightened scrutiny'—but, it continued, the law would fail only ' if the classifications rest on impermissible stereotypes,' as opposed to permissible ones such as those rooted in biological differences (emphasis added).
The Republican-appointed justices have now indicated that Geduldig is making a comeback. When the Supreme Court overruled Roe v. Wade, Alito's majority opinion invoked Geduldig to declare that abortion restrictions do not amount to sex discrimination. Such restrictions, Alito wrote, are about a medical procedure tied to the biological differences between men and women.
By invoking Geduldig, the Roberts Court is doing what the Supreme Court of earlier eras did: supplying tortured legal logic to justify long-standing hierarchies. In Plessy v. Ferguson, for example, the Court insisted that laws that required white and Black individuals to ride in different train cars were not impermissible racial discrimination—the rules applied to and burdened everyone, after all. That logic sounds like the thread in Skrmetti that maintains that bans on gender-affirming care don't constitute gender-identity discrimination because the bans allow transgender and cisgender kids to access hormones and puberty blockers—just not for treatment of gender dysphoria. In Korematsu v. United States, the Court claimed that the internment of Americans of Japanese descent did not constitute racial discrimination; the policy was about national security. That reasoning tracks with Skrmetti 's insistence that the health-care bans do not discriminate on the basis of sex or gender identity; they are about age and medical procedures.
The decisions in Plessy and Korematsu are rightly reviled today. Geduldig should be as well. Instead, the country has a Court that is turning to it as precedent, repurposing it to justify a new era of legal discrimination.