The Fate of Bostock’s Formalism After $215 Million Spent on Anti-Trans Ads

For the Balkinization Symposium on Legal Pathways Beyond Dobbs.

Neil S. Siegel 

Lacking theoretical ambition in the current moment, I want to make a point about methodological inconsistency that will include but extend beyond equal protection law in the context of sex, sexual orientation, and gender identity. 

Last Term, the U.S. Supreme Court decided United v. Rahimi, 144 S.Ct. 1889 (2024), holding that the Second Amendment permits someone found by a court to pose a credible threat to the physical safety of another to be temporarily disarmed. Justice Neil Gorsuch wrote a concurrence opining on the proper method of constitutional interpretation. “Come to this Court with arguments from text and history,” he wrote, “and we are bound to reason through them as best we can.” “Faithful adherence to the Constitution’s original meaning may be an imperfect guide,” he continued, “but I can think of no more perfect one for us to follow.” 

In writing those words, Justice Gorsuch appeared unembarrassed by their inconsistency with the reasoning of several momentous majority opinions he joined that term—none of which had a tenable basis in the text or original meaning of the Constitution or the statute at issue. See Trump v. United States, 144 S.Ct. 2312 (2024); Trump v. Anderson, 144 S.Ct. 662 (2024); Fischer v. United States, 144 S.Ct. 2176 (2024). The two Trump cases were instead based on structural inferences, consequentialist reasoning, and analogies to precedent. As the conservative originalist scholar William Baude opined, “Trump v. Anderson’s holding lacked any real basis in text and history,” and “[t]he court’s reasoning [in Trump v. United States] went well beyond any specific part of the Constitution or any determinate constitutional tradition.” As for Fischer, Justice Amy Coney Barrett wrote in dissent that the Court “does textual backflips to find some way—any way—to narrow the reach” of the criminal provision in question. 

There is a lesson here, and it also applies when President Trump does not benefit from the Court’s deviations from textualism and originalism. When the political stakes are high, most of the conservative Justices cannot be counted on to be methodologically consistent—to be principled. It can be frustrating to be a student of the current Court because an unprecedented number of Justices purports to assign first-class interpretive status to relatively strict versions of textualism and originalism and second-class interpretive status to structural, doctrinal, and consequentialist modalities of interpretation. It can be demoralizing to be a student of this Court because those same Justices do not appear to really mean it when the consequences of applying that proclaimed interpretive hierarchy are unpalatable.

A similar dynamic seems likely to unfold regarding the Court’s increasingly formalistic, biologically focused understanding of sex discrimination. That understanding leaves much to be desired. For one thing, it is contrary to extensive case law that polices sex classifications reflecting or reinforcing traditional sex-role stereotypes. See, e.g., United States v. Virginia, 518 U.S. 515 (1996). For another thing, it is harmful to human beings, including women, sexual-orientation minorities, and transgender individuals. See, e.g., Pavan v. Smith, 582 U.S. 563, 568 (2017) (Gorsuch, J., dissenting) (defending “a birth registration regime based on biology” that denied married same-sex couples the same legal recognition as married opposite-sex couples). What is more, when that understanding occasionally helps such groups, the Court appears unlikely to consistently stick with it. 

Consider, for example, United States v. Skrmetti, where the issue is whether the Equal Protection Clause permits a Tennessee law that forbids all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” The question presented in Skrmetti would seem to be answered in the negative by the formalistic, biologically focused understanding of sex discrimination animating Justice Gorsuch’s majority opinion in Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020). 

In Bostock, the Court held that an employer who fires an employee just for being gay or transgender violates federal employment discrimination law. Considering the case of “an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female,” Justice Gorsuch reasoned that “[i]f the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.” Chief Justice John Roberts joined Justice Gorsuch’s opinion. 

According to Bostock’s logic, the state law at issue in Skrmetti uses a facial sex classification. “Put simply,” the Solicitor General advised the Court, “an adolescent assigned female at birth cannot receive puberty blockers or testosterone to live as a male, but an adolescent assigned male at birth can.” Yet, the U.S. Court of Appeals for the Sixth Circuit, in an opinion by Chief Judge Jeffrey Sutton, denied that the state law included a facial sex classification and, applying only deferential scrutiny, upheld it as rational. Remarkably, Chief Judge Sutton distinguished Bostock as a case in which “the employers fired adult employees because their behavior did not match stereotypes of how adult men or women dress or behave.” Valid concerns about gender stereotyping were exactly what were absent from the majority opinion in Bostock. (And, in any event, such stereotyping is present in Skrmetti on the very face of the law, which states that Tennessee has an “interest in encouraging minors to appreciate their sex” and in prohibiting treatments “that might encourage minors to become disdainful of their sex.”) 

Even so, at oral argument, Chief Justice Roberts seemed to agree with Chief Judge Sutton. Justice Gorsuch—who is typically not shy at argument—just sat there, saying nothing. 

What has changed between Bostock in 2020 and Skrmetti today? 

The legalist in me searches for a principled distinction between the two cases, let alone between Bostock and the conclusion that the Equal Protection Clause already subjects discrimination against gay or transgender people to heightened scrutiny. 

The realist in me registers that in 2020, Donald Trump did not condemn transgender Americans. By contrast, in 2024, the Republican Party won control of the political branches after spending “nearly $215 million on television ads fanning fear and hatred of trans people,” a “figure that doesn’t include cable or streaming ads.” 

The legalist in me wonders whether the Court will surprise us in Skrmetti. I live to learn. 

The realist in me cautions that no one should expect the Court to consistently vindicate its stated interpretive commitments. The pull of politics and outcomes seems too strong for most Justices to resist. 

Neil S. Siegel, David W. Ichel Distinguished Professor of Law and Professor of Political Science,  Duke Law School, siegel@law.duke.edu