My essay on West Virginia v. BPJ is forthcoming in the Yale Law Journal Forum. I argue the case should be treated as an erroneous departure from the Court's sex equality jurisprudence. Unfortunately, this is not the first time this has happened. Draft on SSRN: papers.ssrn.com/sol3/papers....

Good points here by @dorfonlaw.bsky.social on West Virginia v. BPJ. I agree on Justice Thomas's "gratuitously and vehemently anti-trans concurrence." "The best thing that can be said about that concurrence is that Justice Alito didn't join it."

The Supreme Court's decision in the transgender athlete cases, West Virginia v. B.P.J., is out. In a 6-3 opinion by Justice Kavanaugh, the Court upheld state laws excluding transgender girls and women from girls' and women's sports against equal protection and Title IX challenges. 1/x

The Supreme Court's opinions on transgender athletes (West Virginia v. BPJ and Little v. Hecox) will be out tomorrow morning and seem likely to be written by Justice Kavanaugh. I'll have thoughts on the implications on Bluesky tomorrow and live on Wednesday here: law.seattleu.edu/rapid-respon...

In yesterday's Mullin v. Doe decision, the Supreme Court treated the President's repeated denigration of Haitians as not enough to show unconstitutional animus. Why do courts keep looking past explicit bias? Why is that the wrong thing to do? I took up those questions here: ssrn.com/abstract=3213998

BREAKING: Following DOJ's defense earlier this week of its attorneys' actions in the Rhode Island Hospital subpoena case — www.justice.gov/opa/pr/state... — Judge Mary McElroy has referred the DOJ lawyers involved for disciplinary proceedings. Background: www.lawdork.com/i/198583977/...

Happy Pride, Y’all. The DC Circuit has just enjoined Pete Hegseth from enforcing his anti-trans policy. storage.courtlistener.com/recap/gov.us...

I'm delighted to work with UCLA Law Review @uclalawreview.bsky.social to publish Skrmetti's Shell Game. Here's an updated version of the article with more discussion of how lower courts are interpreting that case. papers.ssrn.com/sol3/papers....

I spoke with Vox about the assault on transgender rights. www.vox.com/policy/48276...

The fight over transgender rights in America has entered a new phase

The policy fight is moving well beyond sports and youth medicine. The political response hasn’t caught up.

vox.com

Honored to find out that I am on this list of top-cited legal scholars again this year: papers.ssrn.com/sol3/papers..... Lots of others on this list whose work I deeply admire, including @jessicaclarke.bsky.social @miriamseifter.bsky.social @jdmortenson.bsky.social and many others! Congrats, all!

I spoke with Reuters about the transgender rights cases argued in the Supreme Court today. www.reuters.com/sports/us-su...

US Supreme Court's next transgender rights battle could affect more than sports

A Supreme Court ruling upholding some state laws could determine the validity of an array of laws and policies that limit the rights of transgender people, legal experts say.

reuters.com

Watch my friend @mary-anne-case.bsky.social take on conservatives on their own terms in this debate over whether parents have a constitutional right to insist that schools misgender their children. fedsoc.org/conferences/...

I'm honored that Chief Justice Guerrero of the California Supreme Court found my article helpful to this case. www.courthousenews.com/california-s...

California Supreme Court upholds misgendering law

The decision, a reversal of a lower court's ruling, focuses on a law regulating the conduct of staff at certain health care facilities.

courthousenews.com

Public health authorities should reconsider the form birth certificate and make information about sex at birth private health data. www.nejm.org/doi/full/10....

Failed Assignments — Rethinking Sex Designations on Birth Certificates | NEJM

Sex designations on birth certificates offer no clinical utility, and they can be harmful for intersex and transgender people. Moving such designations below the line of demarcation wouldn’t compro...

nejm.org

Even though it mustered only 356 words to justify putting Trump's spiteful anti-trans passport policy back into effect, #SCOTUS managed to show us two of the flawed analytical moves it keeps making *only* in Trump cases to provide cover for granting emergency relief. My latest, via "One First":

189. The Breezy Inequity of Trump v. Orr

The Supreme Court's latest grant of emergency relief to the Trump administration illustrates in technicolor the direct (and ugly) consequences of the two different ways it keeps messing up "equity."

stevevladeck.com

Preach, @jessicaclarke.bsky.social : "contrary to the claims of its proponents, formalism in equality law fails to ensure predictable results, does not meaningfully constrain judicial decisionmaking, and detracts from judicial accountability." papers.ssrn.com/sol3/papers....

I've posted a draft article on the Supreme Court's Skrmetti decision on SSRN. I argue that this harmful decision represents the worst sort of legal formalism, but does not predetermine the results in other transgender rights cases or eviscerate sex discrimination law. papers.ssrn.com/sol3/papers....

Oh dear. RIP to one of the great ones, as a scholar and as a person.

William Baude@williambaude.bsky.social · last yr.

RIP Dick Fallon. A devastating loss professionally and personally.

It was an honor to be part of the UCI Law Supreme Court term in review event with Mario Barnes, Courtney Cahill, Erwin Chemerinsky, and Mark Joseph Stern. @mjsdc.bsky.social youtu.be/Zj3T7ZAxjYM?...

UC Irvine Law's 15th Annual Supreme Court Term in Review

YouTube video by ucirvinelaw

youtu.be

To understand this moment, we need more investigative journalism into the right's "war on gender ideology," so we can better understand what led to this wave of anti-transgender laws and their connection to anti-feminist and LGBTQ rights movements more broadly. www.nytimes.com/2025/02/08/m...

Trump Joins a Global War on ‘Gender Ideology’

nytimes.com

I think the frame of not obeying in advance is exactly the way to think about it. As with so many other things, the vector is going in a bad direction. But slowing it down makes a huge difference in protecting real people right now.

Jessica Clarke@jessicaclarke.bsky.social · last yr.

My heart is with those who have been harmed by the Skrmetti decision and those who have no faith in this Supreme Court. This thread is meant to provide support for those who would continue to fight despite Skrmetti and those who wish to resist demands to obey in advance.

Two more important notes on Skrmetti's limits. It does not mean that legislatures can simply frame rules enforcing sex stereotypes at a higher level of generality, i.e., requiring men and women to do jobs "consistent with their sexes," to avoid heightened scrutiny. It's limited to health care. 1/2

Great explanation from @chasestrangio.bsky.social on the legal arguments that remain to challenge anti-transgender policies after Skrmetti. Do not obey in advance!

Strict Scrutiny Podcast@strictscrutiny.bsky.social · last yr.

OUT NOW - our episode on US v. Skrmetti, the case upholding TN’s ban on gender affirming care for minors. With @chasestrangio.bsky.social @profmmurray.bsky.social @kateshaw.bsky.social @leahlitman.bsky.social crooked.com/podcast/scot...

I don't agree. Skrmetti applies narrowly to classifications based on "treatments" and "medical uses" for purposes of treating gender dysphoria. It is very important to the majority that this law targeted medical treatments that "are uniquely bound up in sex." We do not need to read this broadly.

iraylavent.bsky.social@iraylavent.bsky.social · last yr.

Also, the TN law plainly discriminates by sex, as Sotomayor points out. This just provides a template set of magic words surrounding “gender dysphoria” that legislatures can now use to get a pass for their sex discrimination against trans people.

As a matter of formalistic logic, a sex classification is a sex classification, even if the law contains other classifications. But on p.5 of the opinion, the Court says the age limit is important to its holding, even though no party contested it. So it must be doing work. Let's take them seriously.

iraylavent.bsky.social@iraylavent.bsky.social · last yr.

Appreciate the analysis, but can you explain how the overall ruling is limited by age? It reads to me as age not being a criteria which would warrant scrutiny on its own, which would then open the door to similarly configured adult care bans.

An important thread on today’s Skrmetti decision from my colleague, @jessicaclarke.bsky.social—one of the leading sex discrimination scholars in the country.

Jessica Clarke@jessicaclarke.bsky.social · last yr.

Today's Skrmetti opinion is devastating to transgender children and families who live in states with cruel laws barring gender affirming care. But it is very important to recognize this opinion does not give private entities, legislatures, or the President carte blanche to discriminate! 1/x

Thank you David. Please everyone--do not overread Skrmetti, and do not obey in advance!

David S. Cohen@dsc250.bsky.social · last yr.

Important thread here about what Skrmetti does and doesn't do.

Today's Skrmetti opinion is devastating to transgender children and families who live in states with cruel laws barring gender affirming care. But it is very important to recognize this opinion does not give private entities, legislatures, or the President carte blanche to discriminate! 1/x