Roberts first asserts that the law does not discriminate on the basis of sex, allowing it to evade heightened scrutiny. Then, having settled upon a deferential standard of review, he dismisses the law’s overt discrimination on the basis of sex as constitutionally unconcerning. These two lines of logic cannot be reconciled. Surely a regulation that instructs girls to be girls (and boys to be boys) by compelling both genders to “appreciate” their sex classifies children based on their sex. The law is impossible to enforce without taking sex into account. And that classification should trigger heightened scrutiny at the outset. Yet Roberts ignores this sex-based classification at the outset, pretends the law is sex-neutral, then writes off its most overtly discriminatory provision by applying relaxed scrutiny. That’s simply not how the law of equal protection operates.
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SCOTUS has also rejected “separate but equal” in the context of sex discrimination. Yet Roberts brought it back in Skrmetti, giving states leeway to discriminate on the basis of sex as long as they pretend they are discriminating “equally” against both genders. Is this actually the new law of sex discrimination? Is it a bespoke exception from the rule, one the chief justice used to cobble together a majority that, behind the scenes, disagreed about major aspects of the case? Or is it the majority’s way of hobbling constitutional challenges to anti-trans laws without admitting that it must kneecap bedrock principles of equal protection?
We will not know for sure until SCOTUS revisits the issue and tries to make some sense out of Wednesday’s hash. For now, one thing is certain: To carry Skrmetti over the finish line, Roberts abandoned coherence and candor in favor of a crude exercise in outcome-oriented reasoning.
https://slate.com/news-and-politics/2025/06/skrmetti-john-roberts-anti-trans-supreme-court.html (arc)