Title IX - Supreme Court Hearings

That was the Sixth Circuit, not SCOTUS

Here's a fuller version of the quote:
The Sixth Circuit reversed. As relevant, the Sixth Circuit held that the United States and plaintiffs were unlikely to succeed on the merits of their equal protection claim. See id., at 479–489. The court first found that SB1 does not classify on the basis of sex because the law “regulate[s] sextransition treatments for all minors, regardless of sex,” by prohibiting all minors from “receiv[ing] puberty blockers or hormones or surgery in order to transition from one sex to another.” Id., at 480. The court next declined to recognize transgender individuals as a suspect class, finding that transgender individuals are neither politically powerless nor a discrete group defined by obvious, immutable, or distinguishing characteristics. Id., at 486–487.

Concurring opinions are opinions of the individual justice(s) who wrote or joined them, not the opinion of the Court.

One of the first things you learn when you study law is the difference between the opinion of the court, concurrences, and dissenting opinions. If you say
"Skirmetti said this", it means that the majority opinion of the Court held this, not that it was in a concurrence.

This article is pretty clear. It's about the courts in Canada but US courts work the same way on this topic.

Concurring or dissenting decisions are not binding; however, they can act as “persuasive” authority that can guide future decisions.

https://www.constitutionalstudies.ca/2020/07/majority-concurring-and-dissenting-decisions/

I'll try to find something on the holding vs the rationale vs dicta/obiter dictum too. Courts may say things in passing that are not binding. It's important to make the distinction between a court's holding and other parts of the opinion;.

Wow. 😬
After not being able to answer what a woman was during her confirmation hearing ("I can't... Not in this context. I'm not a biologist") maybe she should have recused herself.

Helen Joyce has retweeted an audio clip of Justice Ketanji Jackson's comments on defending the right of men to participate in womens sport. For those not on X:

Justice Ketanji Jackson: "...what is happening in this law is that it is treating someone who is transgender, but does not have, because of the medical interventions and the things that have been done, who does not have, uh, the same, uh, threat to physical competition and safety and all the reasons that the state puts forward - that's actually a different class, says this individual. So you're not treating the class the same. And how do you respond to that?..."

😖

The court next declined to recognize transgender individuals as a suspect class, finding that transgender individuals are neither politically powerless nor a discrete group defined by obvious, immutable, or distinguishing characteristics.

The above can be found in the document you posted. Variations can be found in all the concurring opinions. This was used directly in Orr v. Trump by SCOTUS in rejecting sex markers chosen by the applicant.

My guess is near the end of this term, i.e., late June or early July. But that's a guess. They might issue their opinion earlier.

@GallantKumquat
"Skirmetti might have been narrow in some sense, but it explicitly laid out that gender identity is not (always) immutable or intrinsic, or (ever) verifiable. That's a major clarification."

I can't find that in CJ Roberts' opinion. Do you have a citation? Thanks.

FWIW, here's the opinion I'm looking at: https://www.supremecourt.gov/opinions/24pdf/23-477_2cp3.pdf

Justice Barrett's concurrence starts with

Because the Court concludes that Tennessee’s Senate Bill 1 does not classify on the basis of transgender status, it does not resolve whether transgender status constitutes a suspect class. Ante, at 16–18; see Geduldig v. Aiello, 417 U. S. 484, 496 (1974). I write separately to explain why, in my view, it does not.(emphasis added)

I don't see why the Court would rule on whether gender identity is immutable, intrinsic, or verifiable if it didn't address whether transgender status constitutes a suspect class.

When is SCOTUS likely to rule?

I disagree about how the court decide, obviously, but certainly there's a wide range of reputable opinion on what and how broadly SCOTUS will rule. But I think it's important to note two things:

• Skirmetti might have been narrow in some sense, but it explicitly laid out that gender identity is not (always) immutable or intrinsic, or (ever) verifiable. That's a major clarification.
• Bostock v. Clayton County is compatible with categorical declaration on the state and federal level that trans identified men are always men. I.e. it was an equal protection case, and whatever you think the nature of gender identity is, trans gender people have a right to equal treatment. That doesn't imply that they have the right to be treated as the sex they identify as. Personally I think there's considerable indication the SCOTUS would like to make exactly that clarification, including yesterday's testimony, but I wouldn't want to re-litigate the case here on MN, especially given the fact that SCOTUS can and often does surprise in its rulings.

Quick post about the levels of judicial scrutiny under US law. SCOTUS will probably not decide anything as broad as "it's reasonable for states to categorically treat trans identified men as men" Skirmetti was very narrow and I expect this case to be as well. But, possibly more importantly, Gorsuch wrote Bostock v. Clayton County, a 6-3 decision in 2020, that held that Title VII (statute that prohibits employment discrimination) protections covered gender identity as well as sexual orientation. He was joined by Kavanaugh and Barrett as well as Sotomayer, Kagan, and Brown Jackson.

I think it's likely that the Court finds that transgender claims under Title IX and the 14th Amendment only need to meet the rational basis test, i.e, whether a law is "rationally related" to a "legitimate" government interest. It's easy to meet this test which is why the plaintiffs are arguing that intermediate level scrutiny should apply. That applies to sex discrimination, discrimination based on illegitimacy, and content neutral limitations on speech. If intermediate level scrutiny applies, the government must show that the law or policy being challenged furthers an important government interest by means that are substantially related to that interest.

Finally, strict scrutiny applies to racial discrimination claims. Under strict scrutiny, the government can demonstrate that the law or regulation is necessary to achieve a compelling state interest, that the law is "narrowly tailored" to achieve that compelling purpose, and that it uses the "least restrictive means" to achieve that purpose.

A big part of this case is what level of scrutiny is appropriate for gender identity.

ETA: Did not mean to hit send. Sorry.

It will be very interesting to see how the reasoning pans out. It's a while since I read the Skrmetti judgment, but iirc Roberts CJ for the majority had obviously been paying close attention to UK developments, and Alito's concurrence covered a lot of ground that will be familiar to us.

Sotomayor for the minority leaned heavily into "these poor children, why can't all y'all just be kind" which, given that Sotomayor is a brilliant lawyer who can make a reasoned case when it suits her, was embarrassing.

I think we'll see something similar this time round, 6-3 unless Gorsuch goes wobbly (which you can never rule out)

It's remarkable how much gender critical reasoning the US Supreme Court (the conservative justices anyway) has absorbed:

• Sex is binary (and real)
• Gender identity is subjective, possibly transitory, not externally verifiable and and not a basis for the same kinds of rights as we grant sex and race, and other immutable characteristics.
• Federal laws shouldn't shouldn't be used to insist that men be allowed to participate in women's sports and more broadly, federal law shouldn't be used to insist that we call a certain class of trans identified men, 'women', i.e. it is reasonable for states to categorically treat trans identified men as men.
• Individualised exceptions under which some men may be considered to be women are the opposite of discrimination protections, they destroy existing protections and the concept of equal protection.
• It's not just that Title IX cannot be reinterpreted to include gender identity, there's no way to argue that can that doesn't quickly collapse into parody that frankly legal professionals should be embarrassed to put forth (not said explicitly but heavily implied)

The bottom line is that states obviously have legitimate interests in sex‑based rules - they're needed for fairness for women. And gender identity base rights are in direct conflict of them. The question shaping up is - 1) can Title IX be interpreted to mean gender identity rather than biological sex: almost certainly not; 2) Even if it could be interpreted to mean gender identity rather than biological sex, would it be constitutional: almost certainly not. It will be quite interesting to see how the minority tries to hedge against the majority ruling given weakness of the arguments.

You are probably correct about his argument since I only heard the bit on X. I'm sure I'm missing a lot.

As far as I know, "discrimination by perception" is something in UK law but not US law. But students might be protected under Title IX against discrimination that was based on their stereotypical behavior that fits (or goes against) gender stereotypes. I think that's a very reasonable argument. Again, I'm not sure that was the argument he was trying to make (though not clearly).

Following his logic (or lack of logic), there would be no definition of 'Jewish'.

He isn't talking about discrimination by perception, he is arguing that the concept of sex shouldn't be defined.

I don't think discrimination by perception is relevant to this case anyway, because male and female sports categories are not based on appearance.

I couldn't disagree more and I love the FWS decision.

That was interpreting one statute. The US SCOTUS is interpreting an entirely different statute and the US Constitution. If the Equality Act had similar language, history, and purpose as either the 14th Amendment or Title IX I might agree but it doesn't.

Wow. I thought they must have benched Strangio for orals because Block was better.
Apparently not.

You may be correct about his argument. As I said, I only heard the snippet on X, not the whole argument.

I do think that the argument is similar. E.g., if an employer fired someone who ate bagels bc they assumed ppl who ate bagels were Jewish, that would be protected IMO. It is often stereotypes that lead to discrimination.

I agree w you that the "sex" must have a clear definition under Title IX. That's why I said I agreed w Alito.

Well the UK Supreme Court has been there, so that should give them a steer.

(I know the UK and US SCs are not the same sort of thing, but still.)

So he doesn't want, or think there needs to be, a definition of sex, yet when push comes to shove, we can all rely on a few hoary old stereotypes that were popular in the 70s eg Dick Emery and Danny La Rue?

It's very similar to the argument that if, e.g., an employer fires someone bc they think the person is Jewish, that would be discrimination against Jews even if the person who was fired was Christian

Discrimination by perception still requires a clear definition of the protected characteristic. He is arguing that there should be no objective definition.

If he made a similar argument about religion it would be that we don't need to define anti-semitism, but it might have something to do with eating bagels.

I only heard the snippet from X but it seems to me that the attorney is arguing that, under Title IX, if you discriminate against feminine behavior that would be discrimination on the basis of sex, whether that behavior is displayed by a boy or a girl. It's very similar to the argument that if, e.g., an employer fires someone bc they think the person is Jewish, that would be discrimination against Jews even if the person who was fired was Christian

FWIW, I agree with Alioto here that "sex" must have a definition under the statute. It's a law that prohibits sex discrimination and I don't see how you can prohibit something that isn't defined. I also don't think it would be constitutional (under the US Constitution) to do so. Seems like an ex post facto law to me. (Just my off the cuff opinion without having really considered it.)

Yes, that IOC. We just have to hope that things will move in a different direction under Kirsty Coventry. There should be an update soon.

Sean Ingle, who has been one of the few sports journalists who has been good on this issue, is cautiously optimistic. We'll have to see.

www.theguardian.com/sport/2025/nov/10/ioc-edges-closer-to-ban-on-transgender-women-in-female-olympic-events

Well, these idiots don't so much have shit for brains as dicks for brains, so maybe it's appropriate as you say they left their brains with their balls.

FFS, do the Democrats never learn?

Kristen Waggoner of ADF gives her take on the day's events on the Megyn Kelly show:

Woman = limp wrists?!!
Really?
Could they get more insulting?

ACLU are doing a great job of shedding sunlight on a bunch of mysiogynist, sexist claptrao. A pity they left their brains behind with their balls when they went to court.