The Supreme Court Just Revived One of the Worst Anti-Woman Rulings of All Time

Last week, the Supreme Court ruled in United States v. Skrmetti, a blockbuster case upholding a Tennessee law that bans gender-affirming care for transgender youth. The Trump administration supported the law, along with countless other anti-trans measures. At the core of the strategy to undercut the status of transgender people is the notion that trans rights harm women. Donald Trump’s executive order defining sex in biological terms claims to be “defending women from gender ideology extremism.” Trump surrogates paint trans rights advocacy as a “war on women,” with trans protections placing “women’s sex-based rights … under attack.” According to this thinking, laws like the one at issue in Skrmetti are part of pushback against a “transgender craze seducing our daughters.”

But, as Skrmetti highlights, the war on transgender persons is part and parcel of a war on women. The playbook of pitting trans rights against women’s rights is just another sideshow that provides cover for the administration’s actual agenda. In reality, trans rights and women’s rights are inextricably linked, legally and politically, and both are now under attack. Ignoring the retrenchment on trans rights will only come at sex equality’s peril.

Unfortunately, Democrats’ response to the decision has been muted, with party leaders retreating on trans rights out of fear that these issues are a political liability. Even those who spoke out, like Senate Minority Leader Chuck Shumer or Illinois Gov. J.B. Pritzker, limited their comments to the decision’s impact on “trans Americans” or, at most, the “LGBTQ+ community.” These comments miss the fuller picture. To see the connection between trans rights and women’s rights, one need look no further than Skrmetti itself. As that case shows, trans rights and women’s rights are intertwined in law. Often, they stem from the same legal source: rules against sex discrimination. Deciding what these rules mean for trans people affects what they mean for women, and vice versa.

Before Skrmetti, there was no doubt that any sex-based lines in the law must be subject to careful scrutiny by courts, an approach to constitutional equality critical to women’s progress. Before this approach developed, lawbooks were filled with sexist rules; for example, exclusions of women from traditionally male professions, like being a lawyer or a bartender. Skeptical review of sex-based laws has been essential to eradicating these rules and ensuring that sex does not determine the schools we attend, the jobs we do, the care we provide, and beyond.

The main argument before the court in Skrmetti was whether the Tennessee law violated the Constitution’s guarantee of sex equality. The court was primarily asked to answer a question about the meaning of sex discrimination. Under a precedent interpreting a different law’s sex equality provision, the Supreme Court held that transgender discrimination is sex discrimination because it means treating people differently on the basis of sex. Under this reasoning, if a boy can receive testosterone but a girl cannot (or a girl can receive estrogen but a boy cannot), that is sex discrimination.

Avoiding the force of this body of case law in Skrmetti required some substantial judicial jujitsu. The court concluded—speciously—that it could rubber-stamp the law because it did not classify by sex, but rather by the purpose of the treatment; that is, whether the treatment is for the purpose of providing gender-affirming care or some other medical purpose like treating precocious puberty. Purpose is beside the point, though. Under the law, a doctor deciding whether a teenager can receive a puberty blocker to keep their breasts from developing or their facial hair from growing would first need to know whether that teen is a boy or a girl. Yet the court denied that the law draws sex-based lines.

By carving out an exception to the rule that any law that draws sex-based lines is subject to exacting scrutiny, Skrmetti opens the door to a judge’s discretion about whether a sex-based rule even merits a close look. The opinion’s reasoning might generously be called muddled, making it difficult to predict exactly where it will lead. Still, it’s not hard to imagine that chipping away at the foundation of legal sex equality will undermine the rights of trans people and women.

Just as troubling, the court suggested that the Constitution’s sex equality protections depend on context. Chief Justice John Roberts wrote that “in the medical context, the mere use of sex-based language does not sweep a statute within the reach of heightened scrutiny” because of “biological differences between men and women.” But, as I have shown in research, this ignores how sex stereotypes easily hide under the guise of biological difference. For example, states have relied on biological sex difference to justify laws that grant more generous child support for boys than girls; that bar women from attending military school; and that treat mothers and fathers differently when it comes to conferring citizenship on their children. In each of these cases, the court struck down the law at issue, concluding that it was sex stereotypes and not biological differences that drove the sex-based rule. In these cases and others, biology often provided convenient cover to rely on sex to justify discrimination, which is why strict judicial scrutiny has been so needed.

The court points to the Food and Drug Administration “frequently approv[ing] drugs for use by only one sex” as an example of why references to sex in the medical context should get a free pass. But this raises alarm bells. The exclusion of women from drug testing, development, and approval has long been an issue of concern for those who care about sex equality. The FDA’s sex-specific activity is precisely the type of government action that requires careful review to ensure that it is warranted by biology and not sexism.

While Democrats want to give ground on transgender issues for perceived political expediency, there’s no reason to think that the administration will stop there. Trump’s opposition to trans rights is part of a “past-oriented politics” pressing a return to a more conventional gender ideology. Ever since Trump promised to “make America great again,” there’s been a question of when Trump wants to return us to—when exactly was America “great” in the MAGA view?

The administration has tried to triangulate on this question: far enough back before transgender people were treated as human, yet not as far back as before women were. But the actual policies of the Trump administration have shown their hand. When it comes to women’s rights, the MAGA movement is harkening back to a much earlier time.

The prime example is Dobbs, which overturned 50 years of precedent protecting a constitutional right to abortion—a blow to women’s equality that Trump assured with the judicial nominations in his first term. Skrmetti picks up this thread, allowing the government to infringe on the bodily autonomy that women and trans people need to ensure their equality. In so doing, Skrmetti relies extensively on one of the Supreme Court’s most anti-woman precedents, a 1974 case deciding that pregnancy discrimination is not per se sex discrimination under this groan-inducing analysis: “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.” Quoting this language, Skrmetti revives a reviled decision which, until this week, the court had barely mentioned—until Dobbs.

Beyond the controversial issue of reproductive rights, Trump this term has gone after basic forms of equality, with a big impact on women. To name just a few such policies, Trump halted most of the Women’s Health Initiative, the largest ever study of women’s health, only to quickly reverse the decision after an outcry from scientists. Harkening back to the old exclusionary labor laws, Trump has discontinued funding to groups whose mission is to support women—often Black and Latino women—seeking to enter unconventional jobs, such as firefighting and the skilled trades. (Some conservatives even blamed the assassination attempt of Trump on women in the Secret Service, with one Republican congressman stating that “DEI results in D-I-E.”) Trump has threatened to dismantle the over-100-year-old Women’s Bureau, the only federal agency devoted to advancing economic opportunity for women. Instead, under Trump, the agencies charged with enforcing civil rights are going after employers and schools where women have seen progress. And while Trump has criticized trans advocates for “the erasure of sex in language and policy,” it is the president who has raised concern about the word “women,” with the appearance of the term in federal grant applications prompting review at the National Science Foundation, a move in tension with long-standing efforts to bring attention and funding to women’s health.

The right’s war on gender progress does not stop at transgender rights. With no end in sight to this administration’s attacks on trans people and women, the time for standing up is now.

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