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."
I just renewed my passport. The application asked for my hair color (despite the color picture). I debated continuing to use "brown" since that's what the last one said, but decided "gray" was more currently accurate. However, by the court's ruling, I suppose I should have put "blonde", since that was my hair color at birth. Their ruling makes as much sense as that. Given that passports are used in part as identification, it is absurd to require data that doesn't describe the current person.
In contrast, my husband, at 91, went to the DMV for an ID card--not a drivers license. In his prime he was 6'3" but at his last doctor's visit he was 5'11". It took 3 hours to get things straightened out with numerous ways that they checked to make sure that he was who he was. All that so that they could be accurate when giving this ID for how he was as he was presently presenting himself. Would you not think that the passport would be less accurate that his state ID license?
Why what possible harm could befall American citizens holding passports bearing evidence of gender fluidity etc if, for instance, local law requires that they immediately suffer the tortures of the damned. (What could go wrong?)
Because my daughter is transgender, today my heart ached for the lack of humanity she is afforded by these despicable creatures. And I wrote to her: I share this piece on the despicable morally and legally bankrupt SCOTUS6 decision today not to rub salt in the wounds but to underscore for you that there are far more of us than there are of those 6 POS, even if you add in their enablers and supporters. Far more of us here and everywhere. Never forget that. In the long and fruitful and wonderful life you deserve and will lead there will be a day when they will be no more than a dark stain of an asterisk, their names to live forever in infamy and disgrace as an affront to the honorable and good among us.
Why yes, it’s just like if the government required you to put down there on the passport “born a negro slave.” What’s the harm? Just an historical fact.
The second sentence in that paragraph is no better than the one you highlighted. What is the purpose of the administration’s policy, beyond a bare desire to harm a politically unpopular group? Tellingly, the majority doesn’t even attempt to say what it might be — because, of course, there is no other purpose for listing a passport holder’s sex at birth. What an utterly shameful and lawless ruling.
Indeed. Intermediate scrutiny is supposed to require an exceedingly persuasive justification before people are classified by sex. What is that exceedingly persuasive justification here? They identify none. And I am aware of none. "It's just the done thing" is not an exceedingly persuasive justification.
I guess we can add US v. Virginia to the growing pile of landmark precedents that have been cast into the oubliette of the MAGA Six's book-burning regime.
The Supreme Court ignoring extensive fact finding by lower courts is, to me, the most worrisome, now long-term, trend. Shelby stood out, for me, in this regard, And I fear the upcoming case dealing with Section 2 of the VRA will suffer similarly. To me, this deficiency, in particular, is why support for the court has collapsed - not [as so many defenders of the court contend] the decisions (ends), but the means falling so very far short of the best practices of jurisprudence established over centuries. All judges have to work with are facts and reason. Limiting, if not ignoring any, facts dooms their decisions to not be credible.
Forget about irreparable harm and balancing the equities. I wonder when Steve will start admitting that the SCOTUS-6 granted Trump emergency relief in this case because it advanced their extreme right wing policy preferences supporting an imperial Presidency to get rid of liberal legislation and Christian nationalism with its concomitant hatred of and discrimination against LGBT persons. Look out, Obergefel!
In terms of the SCOTUS legal reasoning in the Dobbs case, constitutional protection for gay marriage and interracial marriage is legally vulnerable, because those rights, like the abortion right, are inferred from the substantive due process clause of the 14th Amendment and in Dobbs, SCOTUS held you can't infer a right from the 14A due process clause unless it is a long-standing right. Obviously, gay and multiracial marriages are fairly new. The SCOTUS-6 are probably extreme right wing enough to get rid of protection for gay marriage, but not interracial marriage. You see, there’s enough law out there and the SCOTUS-6 can manipulate the facts, to they get to whatever result in a case is their preferred policy outcome.
I'm not certain they're even bothering to manipulate the facts anymore, let alone considering them. "Facts, shmacts, here is our ruling. Read it and weep."
Gay marriage (Obergefell v. Hodges) and interracial marriage (e.g., Loving v. Virginia) were deemed to be rights inferred from the Equal Protection clause and the Due Process clause of the Fourteenth Amendment. I don't think the former was relevant to the Dobbs case (I'm not a lawyer).
There's an obvious way in which the abortion issue is distinct from gay or interracial marriage; namely, the latter involve consenting adults (and the state) whereas the former involves the pregnant woman and a "potential life" (to use language from Roe v. Wade), the latter of which cannot possibly be consenting and cannot defend whatever constitutional rights it may have at various stages of the pregnancy. The majority in Roe v. Wade recognized that the state's interest in the potential life becomes compelling at some point in the pregnancy, which is why they essentially allowed states to regulate or ban non-therapeutic abortions after viability.
The liberal point of view seems to have changed dramatically since Roe v. Wade. It's common to claim that the "potential life" has no rights until it's born, or more radically, to claim that there *is* no "potential life", but only biological matter entirely devoid of moral value regardless of the stage of pregnancy.
"Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment."
Will passports now say Sex or Sex at Birth? If the former, then it is not a simple statement of fact.
That depends on how you define "sex". For example, at present "gender transitioning" doesn't involve genetic engineering, but only hormonal treatment and surgery.
What vile, hateful, odious “people” these justices are. Also pretty ignorant since there is no sexual identity available at conception. Just some random cells. If they had said “at birth” they would at least have some argument (still not good) for the position. I didn’t think my disgust towards the SCOTUS6 could get any deeper, but they managed to prove me wrong again.
You said, "from 2010 through this year, it allowed individuals to submit a doctor’s certification that they had received clinical treatment for gender transition."
Actually, in about 2022, the Biden administration stopped requiring people to submit a doctor's statement, & simply allowed all applicants to select the gender they wanted on their passports by checking the appropriate box on their application.
Exactly! The previous administration concluded that specifying a person's sex on their passport was so unimportant to foreign policy and other governmental interests that you could just choose whichever one you wanted.
One does wonder, at that point, why have a box at all-- and perhaps in retrospect just eliminating the box entirely would have been the better move to at least cast in sharp relief the way in which the Trump admin is needlessly classifying people by sex.
Thank you for covering this so thoroughly and so well. This decision has evaded the alt news radar. It's unfortunate because it's not just a transgender issue which by itself is important enough, but it's also a case in point regarding the dysfunction and irresponsibility of the Supreme Court's conservative majority.
Thanks for this incisive analysis. It brings to mind a (to me) more fundamental issue the SCOTUS majority keeps missing. The Preamble and the 10th Amendment remind us that the People are supreme in our government, yet the SCOTUS majority focuses on imagined harms to the “government” without considering the People at all (much less the people directly affected by the executive-branch policy).
Two decisions that the six SCOTUS justices in the majority issued one day apart in 2022 proved that they knew (and were and are knowingly violating) what our Constitution requires of them. The first was N.Y. State Rifle & Pistol Ass'n v. Bruen issued on June 23, 2022, The second was Dobbs v. Jackson Women's Health Org. issued on June 24, 2022.
In Bruen, SCOTUS highlighted much that needed to be said about how to understand our rights. Just ignore the particular right being discussed and think generally about how to see and defend our rights. SCOTUS emphasized how judges are required to think about our rights, including by emphasizing the government's burden of proof:
"[W]hen [an] Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of [the] regulation [of conduct]. Only if a [ ] regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside [an] Amendment’s" protections.
More generally, "the government must affirmatively prove that its [desired] regulation is part of the historical tradition that delimits the outer bounds of" our "right[s]." That makes sense because the people are sovereign, and we created our Constitution to secure our liberty. As the first words of our Constitution emphasized: "We the People" did "ordain and establish this Constitution" to "secure the Blessings of Liberty to ourselves."
Set aside that mere "historical tradition" clearly is not a standard that is consistent with our original Constitution or our Bill of Rights or the Reconstruction Amendments (13th, 14th and 15th) or the 19th Amendment (which were radical and revolutionary for their times). Just think generally about the more fundamental due process of law (who must bear the burden of proof) that SCOTUS said protected our enumerated rights.
Next, think about how the Ninth Amendment commands judges to construe our Constitution to see our rights: it "shall not be construed to deny or disparage others [other rights] retained by the people." The plain meaning of the plain text of the Ninth Amendment is that although the People who wrote and ratified our original Constitution decided that securing our liberty required an "enumeration in the Constitution, of certain rights," the decision (especially in the 1780's, but even in any subsequent decision) to enumerate some rights in our Constitution cannot be abused to purport to justify diminishing (in any way) "others" (other rights) that were "retained by the people."
The foregoing highlights the devious deception by the same six justices one day later in Dobbs. In Dobbs the majority opinion (twice) knowingly misrepresented that the Ninth Amendment was a "reservation of rights to the people." They did that by quoting Roe. Crucially, however, Roe used that misconception to support rights, including those that clearly were, in fact, expressly enumerated in our Constitution.
In contrast, the Dobbs majority abused that lie about the meaning of the Ninth Amendment to justify the following contention and conclusion (which blatantly violated the Ninth Amendment): "The Constitution makes no express reference to a right to [do something specific], and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text."
This is super simple and super straightforward. No judge (or lawyer) worthy of the title could read the Ninth Amendment and fail to see that it stated a clear command about how our "Constitution" absolutely "shall not be construed." Our "Constitution" NEVER can "be construed to deny or disparage" ANY rights "retained by the people" because of any mere "enumeration in the Constitution" of "certain rights."
The Dobbs majority blatantly violated the Ninth Amendment by focusing on the (irrelevant) fact that "[t]he Constitution makes no express reference to a right to [do something specific]" and then using the absence of an "express reference to a right to [do something specific]" to deceitfully pretend to justify shifting the burden of proof to people asserting our rights.
In Orr, the SCOTUS majority again pretended that the government did not need to bear the burden of proof as they had stated in Bruen.
I don't see why the Supreme Court can consider this an emergency issue to review in the first place? The adult US transgender population is at most 1%. With such numbers, they can't possibly have any significant effect on government operations. They should have the right to live as they choose and obtain passports under the previously accepted rules. BTW If the Democrats retake the White House, could this decision simply be overturned by another Executive Order?
Compared with yesterday's argument about tariffs, this case highlights the lack of fair processes for handling cases on the emergency docket. None of the procedural protections used to deliberate cases on the merits docket seem to apply, particularly the attention to lower court proceedings and the need to provide a rationale for the decision. The court seems to be quick to demand procedural justice in the lower courts while ignoring the need for fair procedures for deciding some of the most meaningful issues. Are these really interim decisions? In many cases they will be final, the products of a rush to judgment, ignoring reasoned judgments of lower courts. Justices, heal youselves.
I just renewed my passport. The application asked for my hair color (despite the color picture). I debated continuing to use "brown" since that's what the last one said, but decided "gray" was more currently accurate. However, by the court's ruling, I suppose I should have put "blonde", since that was my hair color at birth. Their ruling makes as much sense as that. Given that passports are used in part as identification, it is absurd to require data that doesn't describe the current person.
In contrast, my husband, at 91, went to the DMV for an ID card--not a drivers license. In his prime he was 6'3" but at his last doctor's visit he was 5'11". It took 3 hours to get things straightened out with numerous ways that they checked to make sure that he was who he was. All that so that they could be accurate when giving this ID for how he was as he was presently presenting himself. Would you not think that the passport would be less accurate that his state ID license?
Why what possible harm could befall American citizens holding passports bearing evidence of gender fluidity etc if, for instance, local law requires that they immediately suffer the tortures of the damned. (What could go wrong?)
I was bald at birth and now have gray and purple hair. Laugh or cry
Because my daughter is transgender, today my heart ached for the lack of humanity she is afforded by these despicable creatures. And I wrote to her: I share this piece on the despicable morally and legally bankrupt SCOTUS6 decision today not to rub salt in the wounds but to underscore for you that there are far more of us than there are of those 6 POS, even if you add in their enablers and supporters. Far more of us here and everywhere. Never forget that. In the long and fruitful and wonderful life you deserve and will lead there will be a day when they will be no more than a dark stain of an asterisk, their names to live forever in infamy and disgrace as an affront to the honorable and good among us.
Go Mom! (I hope your daughter inherited your writing talent.) So sorry this is happening in our country. As MY mother used to say, “It’s a sin.”
Why yes, it’s just like if the government required you to put down there on the passport “born a negro slave.” What’s the harm? Just an historical fact.
Keep the excellent analysis coming. Thank you for these extraordinary efforts.
The second sentence in that paragraph is no better than the one you highlighted. What is the purpose of the administration’s policy, beyond a bare desire to harm a politically unpopular group? Tellingly, the majority doesn’t even attempt to say what it might be — because, of course, there is no other purpose for listing a passport holder’s sex at birth. What an utterly shameful and lawless ruling.
Indeed. Intermediate scrutiny is supposed to require an exceedingly persuasive justification before people are classified by sex. What is that exceedingly persuasive justification here? They identify none. And I am aware of none. "It's just the done thing" is not an exceedingly persuasive justification.
I guess we can add US v. Virginia to the growing pile of landmark precedents that have been cast into the oubliette of the MAGA Six's book-burning regime.
The Supreme Court ignoring extensive fact finding by lower courts is, to me, the most worrisome, now long-term, trend. Shelby stood out, for me, in this regard, And I fear the upcoming case dealing with Section 2 of the VRA will suffer similarly. To me, this deficiency, in particular, is why support for the court has collapsed - not [as so many defenders of the court contend] the decisions (ends), but the means falling so very far short of the best practices of jurisprudence established over centuries. All judges have to work with are facts and reason. Limiting, if not ignoring any, facts dooms their decisions to not be credible.
Forget about irreparable harm and balancing the equities. I wonder when Steve will start admitting that the SCOTUS-6 granted Trump emergency relief in this case because it advanced their extreme right wing policy preferences supporting an imperial Presidency to get rid of liberal legislation and Christian nationalism with its concomitant hatred of and discrimination against LGBT persons. Look out, Obergefel!
I wonder if interracial marriage, which clearly was at one time illegal, will one day be a target. If that happens, I wonder how Thomas would "rule."
In terms of the SCOTUS legal reasoning in the Dobbs case, constitutional protection for gay marriage and interracial marriage is legally vulnerable, because those rights, like the abortion right, are inferred from the substantive due process clause of the 14th Amendment and in Dobbs, SCOTUS held you can't infer a right from the 14A due process clause unless it is a long-standing right. Obviously, gay and multiracial marriages are fairly new. The SCOTUS-6 are probably extreme right wing enough to get rid of protection for gay marriage, but not interracial marriage. You see, there’s enough law out there and the SCOTUS-6 can manipulate the facts, to they get to whatever result in a case is their preferred policy outcome.
I'm not certain they're even bothering to manipulate the facts anymore, let alone considering them. "Facts, shmacts, here is our ruling. Read it and weep."
Gay marriage (Obergefell v. Hodges) and interracial marriage (e.g., Loving v. Virginia) were deemed to be rights inferred from the Equal Protection clause and the Due Process clause of the Fourteenth Amendment. I don't think the former was relevant to the Dobbs case (I'm not a lawyer).
There's an obvious way in which the abortion issue is distinct from gay or interracial marriage; namely, the latter involve consenting adults (and the state) whereas the former involves the pregnant woman and a "potential life" (to use language from Roe v. Wade), the latter of which cannot possibly be consenting and cannot defend whatever constitutional rights it may have at various stages of the pregnancy. The majority in Roe v. Wade recognized that the state's interest in the potential life becomes compelling at some point in the pregnancy, which is why they essentially allowed states to regulate or ban non-therapeutic abortions after viability.
The liberal point of view seems to have changed dramatically since Roe v. Wade. It's common to claim that the "potential life" has no rights until it's born, or more radically, to claim that there *is* no "potential life", but only biological matter entirely devoid of moral value regardless of the stage of pregnancy.
Sadly....
"Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment."
Will passports now say Sex or Sex at Birth? If the former, then it is not a simple statement of fact.
Excellent point - and shd be dispositive!
Sex is immutable. It's the same thing for pete's sake.
That depends on how you define "sex". For example, at present "gender transitioning" doesn't involve genetic engineering, but only hormonal treatment and surgery.
What vile, hateful, odious “people” these justices are. Also pretty ignorant since there is no sexual identity available at conception. Just some random cells. If they had said “at birth” they would at least have some argument (still not good) for the position. I didn’t think my disgust towards the SCOTUS6 could get any deeper, but they managed to prove me wrong again.
You said, "from 2010 through this year, it allowed individuals to submit a doctor’s certification that they had received clinical treatment for gender transition."
Actually, in about 2022, the Biden administration stopped requiring people to submit a doctor's statement, & simply allowed all applicants to select the gender they wanted on their passports by checking the appropriate box on their application.
Indeed! Thanks for the clarification (which makes this even more maddening).
Exactly! The previous administration concluded that specifying a person's sex on their passport was so unimportant to foreign policy and other governmental interests that you could just choose whichever one you wanted.
One does wonder, at that point, why have a box at all-- and perhaps in retrospect just eliminating the box entirely would have been the better move to at least cast in sharp relief the way in which the Trump admin is needlessly classifying people by sex.
Hindsight is, of course, 20-20.
If it's an arbitrary personal choice, why include it at all? What was the Biden administration's answer?
Thank you for covering this so thoroughly and so well. This decision has evaded the alt news radar. It's unfortunate because it's not just a transgender issue which by itself is important enough, but it's also a case in point regarding the dysfunction and irresponsibility of the Supreme Court's conservative majority.
Thanks for this incisive analysis. It brings to mind a (to me) more fundamental issue the SCOTUS majority keeps missing. The Preamble and the 10th Amendment remind us that the People are supreme in our government, yet the SCOTUS majority focuses on imagined harms to the “government” without considering the People at all (much less the people directly affected by the executive-branch policy).
Two decisions that the six SCOTUS justices in the majority issued one day apart in 2022 proved that they knew (and were and are knowingly violating) what our Constitution requires of them. The first was N.Y. State Rifle & Pistol Ass'n v. Bruen issued on June 23, 2022, The second was Dobbs v. Jackson Women's Health Org. issued on June 24, 2022.
In Bruen, SCOTUS highlighted much that needed to be said about how to understand our rights. Just ignore the particular right being discussed and think generally about how to see and defend our rights. SCOTUS emphasized how judges are required to think about our rights, including by emphasizing the government's burden of proof:
"[W]hen [an] Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this Nation’s historical tradition of [the] regulation [of conduct]. Only if a [ ] regulation is consistent with this Nation’s historical tradition may a court conclude that the individual’s conduct falls outside [an] Amendment’s" protections.
More generally, "the government must affirmatively prove that its [desired] regulation is part of the historical tradition that delimits the outer bounds of" our "right[s]." That makes sense because the people are sovereign, and we created our Constitution to secure our liberty. As the first words of our Constitution emphasized: "We the People" did "ordain and establish this Constitution" to "secure the Blessings of Liberty to ourselves."
Set aside that mere "historical tradition" clearly is not a standard that is consistent with our original Constitution or our Bill of Rights or the Reconstruction Amendments (13th, 14th and 15th) or the 19th Amendment (which were radical and revolutionary for their times). Just think generally about the more fundamental due process of law (who must bear the burden of proof) that SCOTUS said protected our enumerated rights.
Next, think about how the Ninth Amendment commands judges to construe our Constitution to see our rights: it "shall not be construed to deny or disparage others [other rights] retained by the people." The plain meaning of the plain text of the Ninth Amendment is that although the People who wrote and ratified our original Constitution decided that securing our liberty required an "enumeration in the Constitution, of certain rights," the decision (especially in the 1780's, but even in any subsequent decision) to enumerate some rights in our Constitution cannot be abused to purport to justify diminishing (in any way) "others" (other rights) that were "retained by the people."
The foregoing highlights the devious deception by the same six justices one day later in Dobbs. In Dobbs the majority opinion (twice) knowingly misrepresented that the Ninth Amendment was a "reservation of rights to the people." They did that by quoting Roe. Crucially, however, Roe used that misconception to support rights, including those that clearly were, in fact, expressly enumerated in our Constitution.
In contrast, the Dobbs majority abused that lie about the meaning of the Ninth Amendment to justify the following contention and conclusion (which blatantly violated the Ninth Amendment): "The Constitution makes no express reference to a right to [do something specific], and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text."
In fact, the Ninth Amendment does not state a reservation of rights. It clearly states a rule of construction that expressly prohibits judges from doing what six SCOTUS justices did, above. For non-lawyers, a rule of construction is a rule about how to interpret and apply the law. See https://definitions.uslegal.com/r/rule-of-construction/#:~:text=Rule%20of%20Construction%20is%20a%20rule%20used%20for,mere%20customs%20not%20having%20the%20force%20of%20law.
This is super simple and super straightforward. No judge (or lawyer) worthy of the title could read the Ninth Amendment and fail to see that it stated a clear command about how our "Constitution" absolutely "shall not be construed." Our "Constitution" NEVER can "be construed to deny or disparage" ANY rights "retained by the people" because of any mere "enumeration in the Constitution" of "certain rights."
The Dobbs majority blatantly violated the Ninth Amendment by focusing on the (irrelevant) fact that "[t]he Constitution makes no express reference to a right to [do something specific]" and then using the absence of an "express reference to a right to [do something specific]" to deceitfully pretend to justify shifting the burden of proof to people asserting our rights.
In Orr, the SCOTUS majority again pretended that the government did not need to bear the burden of proof as they had stated in Bruen.
Thank you Jack. It's a grim day for Trans folk everywhere in the US. Your commentary makes it clear how outrageous the decision is.
I don't see why the Supreme Court can consider this an emergency issue to review in the first place? The adult US transgender population is at most 1%. With such numbers, they can't possibly have any significant effect on government operations. They should have the right to live as they choose and obtain passports under the previously accepted rules. BTW If the Democrats retake the White House, could this decision simply be overturned by another Executive Order?
Tom Willging
Compared with yesterday's argument about tariffs, this case highlights the lack of fair processes for handling cases on the emergency docket. None of the procedural protections used to deliberate cases on the merits docket seem to apply, particularly the attention to lower court proceedings and the need to provide a rationale for the decision. The court seems to be quick to demand procedural justice in the lower courts while ignoring the need for fair procedures for deciding some of the most meaningful issues. Are these really interim decisions? In many cases they will be final, the products of a rush to judgment, ignoring reasoned judgments of lower courts. Justices, heal youselves.
Thank you Steve
Thanks for weighing in quickly on this decision. The equities are way out of balance, again!