On July 8, 2023, in L.W. v. Skrmetti, the U.S. Court of Appeals for the Sixth Circuit provisionally gave Tennessee the green light to start enforcing its new ban on gender-affirming medical care for transgender youth.1 The split decision on an emergency motion, written by Chief Judge Jeffrey Sutton, broke from an emerging judicial consensus treating trans medical care bans as constitutionally defective.2 Notably, the L.W. majority rejects the argument that Tennessee’s new law violates Fourteenth Amendment sex equality guarantees based largely on the authority of last year’s Supreme Court decision in Dobbs v. Jackson Women’s Health Organization on abortion rights.3 In doing so, the L.W. majority highlights tensions between what Dobbs’ language might suggest about the future of constitutional sex equality rights at the Court and what Dobbs plainly told the public, including lower courts, about the scope of its own reach.4 How lower courts manage that tension—including in ongoing proceedings in L.W., now consolidated with a similar case from Kentucky—may impact not only the run of sex equality cases and protections, but also the Supreme Court’s institutional legitimacy and the American public’s faith in the rule of law.5
Although the parties in Dobbs did not themselves ground their arguments in or around constitutional sex equality defenses for abortion rights, the Dobbs majority nevertheless reached out to describe—and dismiss—them.6 In one brief paragraph, not strictly necessary to its decision to overturn Roe v. Wade, Dobbs observed that abortion was never formally part of the Court’s constitutional sex equality jurisprudence.7 Purporting merely to restate the rules of that body of law, Dobbs noted that heightened judicial skepticism about sex-based classifications ends where laws “simply” retrace biological sex differences.8 This, according to Dobbs, includes laws involving pregnancy or ending it, as by abortion, which, Dobbs adds, didn’t traditionally violate constitutional sex equality law’s demands.9
Dobbs’ description of the Supreme Court’s sex equality jurisprudence left some of the decision’s readers pondering the tea leaves. What did this perfunctory treatment of constitutional sex equality rules at the intersection of abortion rights portend for future cases at the Court? Some have seemed quietly confident this discussion prefigures a new conservative era in which the Court will soon begin placing new emphases on the limits to constitutional sex equality rights, which, before Dobbs and at the Court, had been dwindling in operative legal significance.10 These potential reversals of sex equality law’s fortunes might never come to pass, of course, not least of all in view of widespread public resistance to Dobbs. They are, however, broadly in keeping with Dobbs’ erasure of women’s and other pregnant people’s abortion rights, which materially sets back their individual and collective ability to participate in the nation’s economic and social life on equal terms with everyone else.11
Enter the L.W. majority opinion. This new ruling builds on Dobbs’ sex equality discussion to declare that Tennessee’s ban on gender-affirming medical care for trans youth is consistent with constitutional sex equality requirements, because the ban is biologically based and also applicable to “minors of both sexes.”12 As the opinion observes, “[t]he [Tennessee] ban . . . applies to all minors, regardless of their biological birth with male or female sex organs. That prohibition does not prefer one sex to the detriment of the other.”13 The legal upshot within the L.W. opinionis that, “[i]f a law restricting a medical procedure [like abortion] that applies only to women does not trigger heightened scrutiny, as in Dobbs, [then] a law equally applicable to all minors, no matter their sex at birth, does not require such scrutiny either.”14 One translation: Now that Dobbs allows women’s reproductive biology once again to be legally transformed into their social destinies without violating constitutional sex equality rules, those same rules can’t possibly block the government from locking transgender people, or at least transgender youth, into what the L.W. opinion terms their “biological birth” fate.15
However plausible as an extrapolation from Dobbs’ brief sex equality discussion, the L.W. opinion’s sex equality analysis runs headlong into at least two different, though related, obstacles found in Dobb.16 One involves how the L.W. decision overlooks Dobbs’ repeated insistence—its veritable promises—that abortion is unique and hence that “[n]othing in [the] opinion should be understood to cast doubt on precedents that do not concern abortion.”17 While many people simply place no stock in this kind of declaration from the Supreme Court, it nevertheless states binding law for lower courts to follow. The other problem relates to what Dobbs’ promises mean for how courts should analyze trans sex equality arguments under existing Supreme Court sex equality precedents in Dobbs’ wake, a problem that ultimately recasts Dobbs’ promises and the legal conditions they impose on lower courts in a new substantive light.
I. Dobbs’ Promises
Dobbs does not simply declare—it cross-your-heart swears—that it is a unique ruling about and only about abortion rights.18 Dobbs emphasizes abortion’s uniqueness as a practice that ends potential or actual human life along the way to announcing that its reasoning encompasses, but goes no further than, eliminating constitutional abortion protections.19
Dobbs affirms these limits and the reasons underlying them while spotlighting the implications of its conservative originalist method of decision—focused on history and tradition—for other substantive due process cases and the rights they cover.20 Evidently attempting to de-radicalize itself, Dobbs trumpets that, abortion aside, other substantive due process rights, no matter their historical and traditional pedigree, remain safe, both unaffected and undiminished by the new ruling.21 Dobbs’ position on this front includes ongoing protections for pro-LGBTQ substantive due process cases involving intimacy and marriage rights, as recognized in Lawrence v. Texas and Obergefell v. Hodges.22 Obergefell famously built on earlier pro-LGBTQ rights decisions, including Lawrence, to announce a far-reaching constitutional vision of individual liberties and equal civil rights for LGBTQ people.23 If the Court’s pro-LGBTQ substantive due process rulings, which condition this ambitious equal-liberty vision, are in fact unaffected and undiminished by Dobbs, it stands to reason that Dobbs does not impact or shrink LGBTQ rights encompassed by different Supreme Court doctrines, including—relevant for L.W.—the Court’s sex equality jurisprudence.24 Dobbs points to this same conclusion via another route. If abortion’s uniqueness underwrites Dobbs’ limits as a ruling only affecting constitutional abortion rights, then Dobbs’ brief discussion of constitutional sex equality principles, never more than dicta anyway, doesn’t announce any changes to the Court’s sex equality doctrine—at least not yet. Dobbs’ position surfaces prior Court holdings refusing to accept abortion rights as constitutional sex equality guarantees.25 Accepting Dobbs’ view that the Court’s sex equality jurisprudence has nothing to do with abortion rights, how could Dobbs, itself limited to abortion rights, alter constitutional sex equality protections? Harder to fathom is how Dobbs could reconfigure constitutional sex equality guarantees in ways that don’t merely capacitate but, as L.W. suggests, require lower courts to begin pursuing a newly energized and biologically focused conservatism on constitutional sex equality rights.26
This is not to deny that Dobbs could be setting the table for future Supreme Court decisions that will sap existing constitutional sex equality protections of their current strengths. These possibilities, however, potentially operationalized through future Court rulings announcing new biological limits to the Court’s existing sex equality jurisprudence, aren’t presently the law on the table for lower courts, including L.W., to follow.
What is on the table is Dobbs’ ruling that the reasons it gives for eliminating constitutional abortion protections are limited to that context. To the extent that cases like L.W. do not involve trans people’s abortion rights, and thus do not involve medical care that ends potential or actual life in that sense—or any other—Dobbs’ sex equality reasoning at present has no legal bearing on what constitutional sex equality rules mean for bans on gender-affirming medical care.27
II. L.W.’s Sex Equality Path
Against this backdrop, the L.W. opinion’s analysis of trans rights as sex equality rights starts down the wrong path. It practically but inadvisedly treats Dobbs as requiring lower courts to start actualizing the conservative constitutional moment in which biology becomes a newly activated—or, in view of the relevant history here, reactivated—basis for judges to impose novel constraints on constitutional sex equality rights.28 Until the Court makes that pronouncement clearly—an announcement that Dobbs doesn’t lock the Court into ever making—the sex equality approach that the L.W. court should have followed is the one found in Judge White’s separate opinion in the case, dissenting on this score.29
Appropriately, in light of Dobbs’ formal self-limitation to abortion rights, Judge White’s opinion follows the pre-Dobbs constitutional contouring of robust constitutional sex equality guarantees.30 In keeping with this contouring, and the dwindling significance at the Court of biological limits to constitutional sex equality rights, lower court decisions, including some from the Sixth Circuit, have, for years now, recognized and protected trans people’s legal rights in sex equality terms.31
Judge White’s L.W. opinion applies the Court’s constitutional sex equality machinery in conventional ways to reject Tennessee’s “equal application” argument.32 This was the position—seemingly approved by the L.W. majority—that the state’s ban on gender-affirming care for trans youth “appl[ies] equally to males and females,” and, therefore, doesn’t implicate constitutional sex equality protections.33 If correct, the state’s law would be analyzed in rational basis terms before likely being upheld.34
Dismissing this line of argument, Judge White’s opinion explains that Tennessee’s law actually “discriminates based on sex because ‘medical procedures that are permitted for a minor of one sex are prohibited for a minor of another sex.’”35 Clarifying while quoting from an Eighth Circuit ruling also involving trans youths’ rights to gender-affirming medical care, Judge White’s opinion takes up a formal but-for-sex sex-equality argument to explain that “a person identified male at birth could receive testosterone therapy to conform to a male identity, but a person identified female at birth could not.”36 Presumably the opinion’s thinking holds equally in another direction: A person “identified [fe]male at birth” might receive estrogen “therapy to conform to a [fe]male identity, while a person identified []male at birth could not.”37 In these terms, Tennessee’s “equal application” argument does not so much state conditions for finding no sex discrimination at all so much as it effectively concedes that its new ban on gender-affirming medical care for trans youth is sex discrimination at least twice over.38
The “but-for sex” logics that structure Judge White’s opinion’s sex equality analysis and drive its conclusions are not of her making. They reflect but one established sex equality analytic discoverable in pre-Dobbs cases as well as post-Dobbs rulings that, in different ways, have treated Dobbs as having generated no new constitutional obstacles to an otherwise established, and still developing, background jurisprudence of trans sex equality rights.39
The most significant decision in the relevant pre-Dobbs caselaw is the Supreme Court’s blockbuster 2020 ruling in Bostock v. Clayton County, holding that anti-gay and anti-trans discrimination are by definition sex discrimination under Title VII of the 1964 Civil Rights Act.40 Judge White’s opinion describes Bostock, which endorses but-for-sex sex-equality logics, as “directly on point here and highly persuasive” on the form that its own constitutional sex equality analysis should take.41 Not incidentally, Bostock validated lower court rulings, including one on appeal from the Sixth Circuit, which built on earlier rulings holding anti-trans discrimination to be sex discrimination under Title VII’s sex discrimination rules and the Fourteenth Amendment’s sex equality provisions.42
The L.W. majority squares off with Judge White’s sex equality discussion in different ways. One of the most significant involves the majority’s understanding of the implications for L.W. of a key Sixth Circuit precedent, Smith v. City of Salem, which figured anti-trans discrimination as sex discrimination under both Title VII of the 1964 Civil Rights Act and the Fourteenth Amendment’s Equal Protection Clause.43
The L.W. majority insists that the Smith decision cannot be extended to cover “every claim of transgender discrimination.”44 The reason ultimately offered by the L.W. majority opinion goes beyond anything that Smith itself states.45 Nor does the L.W. majority opinion engage Smith’s basic reaffirmation by, and its consistency with, the Supreme Court’s Bostock decision. No, the reason that the L.W. majority opinion finally offers for not applying Smith to the case at hand is the Supreme Court’s decision in Dobbs. As the L.W. majority puts it: “Dobbs prevents us from extending Smith [to cover a law like Tennessee’s], as [Dobbs] held that medical treatments that affect only one sex receive rational-basis review.”46
Leaving aside that what L.W. says Dobbs “held” was merely dicta, the deeper issue with the L.W. court relying on Dobbs to say that Smith cannot be read to place Tennessee’s new anti-trans law into doubt as constitutional sex discrimination triggering heightened scrutiny is the basic problem encountered before. Dobbs itself insists that it doesn’t extend beyond the status of constitutional abortion rights. Dobbs thus does not “prevent” a lower court from applying a pre-existing, pro-trans sex equality ruling like Smith in a principled fashion to another case, like L.W., involving another kind of anti-trans discrimination. By Dobbs’ own terms and logics, its sex equality reasoning has no implications for cases that are not about abortion rights.
III. Dobbs’ Institutional and Rule-of-Law Dimensions
Over and above the standard agency principles directing lower courts to heed Dobbs’ instruction that it is a ruling limited to abortion rights, Dobbs’ promises serve practical functions that should be considered in trans sex equality cases. The functions of Dobbs’ position on its own limits supply lower courts with additional reasons for continuing to recognize that anti-trans discrimination violates constitutional sex equality demands.
Dobbs’ position about abortion’s uniqueness and its own limits as constitutional precedent helped the Dobbs Court to manage the potential damage that its elimination of nearly fifty years of repeatedly reaffirmed constitutional precedents might have on both the Court’s institutional legitimacy and the American people’s ongoing faith in the rule of law. Dobbs’ pledge about its limited scope and its repeated promises that other constitutional protections remain safe in the ruling’s wake provide an institutionalist case—beyond a simplistic, order-taking literalism—for lower courts to uphold Dobbs’ word.
It isn’t just that cases like L.W.—ruling by attempting to predict where the Court has already taken or may yet take its sex equality jurisprudence post-Dobbs—tacitly expose Dobbs’ promises about abortion’s uniqueness and its own decisional limits as false. Far from innocuously joining others who, from different points of view, never credited Dobbs’ promises as anything but empty ones, judicial decisions like L.W. actively push the calculated constitutional equilibrium that Dobbs has established off its axis.47
To be sure, this is, at most or at best, an uneasy balance. It is also one that is already facing growing pressures on the Court to yield to its conservative constitutional originalist commitments even more deeply and ambitiously than in Dobbs. While the L.W. majority opinion might accurately be predicting where the Court is itself considering taking its sex equality jurisprudence, that doesn’t settle the matter. Nor does the possibility that the L.W. majority opinion might be correct that at least some justices are ready to impose new constraints on existing constitutional sex equality protections. Even accepting all that, if only arguendo, it does not—without more—mean the L.W. majority opinion is faithfully following the governing law about Dobbs’ limits that Dobbs has announced.
Consistent with what Dobbs has said, the prerogative of modifying or abandoning Dobbs’ promises, as true in the sex equality setting as anywhere else, belongs to the Court.48 In conventional legal terms, Dobbs’ promises also instruct legal actors bound by the ruling that the Court meant—and means—to keep hold of the constitutional reins where Dobbs’ meaning, and its potential impact on the Court’s institutional legitimacy and the nation’s faith in the rule of law, are concerned. Dobbs did not beckon lower courts to force its hand by translating its reasoning outside of, or beyond, the abortion setting.
Interestingly, and perhaps somewhat hopefully, the L.W. majority opinion ends on a humble and realist note. It says not once, but twice, that its conclusions are only “initial” ones.49 The court’s ruling in the case, the opinion explains, came quickly, in just a week’s time, on an emergency appeal.50 The standard of review that the court employed required the plaintiffs to satisfy the high burden of making a “clear showing” that the law was—and is—on their side.51 L.W. thus, by its own account, reflects a provisional legal judgment in the case, one the court expressly acknowledges may be in error, requiring a course correction as the case proceeds.52
With a fuller picture of Dobbs now in view and additional time to reflect upon its meaning and its implications for a case like L.W., the Sixth Circuit could yet choose to abandon its outlier status. It could still join other courts in similar cases to recognize that bans on gender-affirming medical care for trans youth implicate—and likely or actually run afoul of—established constitutional sex equality guarantees that Dobbs does not authorize, much less require, lower courts to cut back on. Preserving the pre-Dobbs status quo where sex equality rights, including trans sex equality rights, are at issue is and ought to be the path ahead in L.W. and other cases involving trans sex equality rights after Dobbs.