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Last week, the Department of Justice submitted a short letter to the Supreme Court that, despite its brevity, stands to cause acute harm to numerous individuals. It also reflects how far the new administration is willing to go in its crusade against transgender people, including trying to sway the judiciary.
The DOJ’s letter addresses the ongoing litigation in U.S. v. Srkrmetti, in which the court is considering whether a Tennessee ban on providing gender-affirming care to minors called S.B. 1 violates the Constitution’s equal protection clause. The court held oral arguments in Skrmetti after Trump’s reelection but before his inauguration, when then–Solicitor General Elizabeth Prelogar tried to convince a court controlled by skeptical conservative justices that S.B. 1 unconstitutionally discriminates on the basis of sex. However, about a month later, a newly staffed DOJ asserted it was writing “to notify the Court that the government’s previously stated views no longer represent the United States’ position.” But the letter’s content is much more ambitious and disturbing than its stated purpose suggests.
The government’s reversed course would shock no one given the explicit plans for Trump’s victory in Project 2025 and his presidential campaign against transgender Americans. Yet, nothing makes this reversal more predictable than the postelection reprehensible barrage of anti-trans executive orders, including one that brutally targets the provision of gender-affirming care to patients younger than 19 years old. This order was just temporarily blocked by a federal judge in Maryland. In line with these humiliating actions, the letter regarding the litigation in Skrmetti announced that “the Department has now determined that SB1 does not deny equal protection on account of sex or any other characteristic.”
But then the letter concluded with an astonishing twist. Instead of acting on its stated determination and withdrawing from the litigation, the new DOJ chose to counsel the court not to dismiss the case, taking a position that can lead to a distorted legal process and devastating outcomes. Recall that when the Biden administration first intervened in Skrmetti, it did so to actively support the private plaintiffs who initiated it—minors diagnosed with gender dysphoria and their parents and doctors who have agreed that treatments were necessary. Then, when the Supreme Court granted the government’s petition for review without taking action on the private plaintiffs’ petitions, the government continued to stand by them, splitting with them its arguing time during oral arguments so they could at least voice some of their concerns.
At oral arguments, the court clarified that its review was limited to the discrimination claims brought by the government and, therefore, did not cover the argument raised by the private plaintiffs in their pending petitions: that S.B. 1 is not only discriminatory, as the government posited, but also severely infringes on their foundational parental rights to direct the medical treatment of their children. By the time the court ended the discussion, it seemed that the discrimination arguments were unlikely to convince the conservative justices, perhaps leaving parental rights, protected under the Constitution’s due process clause, as the only path to resuming treatments.
In its perplexing letter, the new DOJ not only brutally abandons the private plaintiffs but also dares to suggest that the court should slam its doors in their faces by deciding the case against them while the formal parties—the U.S. and Tennessee—now agree to harm their interests. Worse, although it renounced its status as an intervening plaintiff, the current administration also seeks to dictate what will happen next, particularly targeting the private plaintiffs’ petitions that include a parental rights challenge. It claims the court should neither grant them nor allow additional briefing on the matter. This troubling maneuver aims to prevent the court from considering the constitutionality of S.B. 1 adequately. It is an attempt to obstruct an examination of how it violates parental rights—an issue that some conservative justices who seemed willing to ignore discrimination problems might find harder to dismiss due to the long tradition of conservative reliance on those rights in matters like vaccine policies and homeschooling.
The critical question at this moment is whether the court would follow the DOJ’s unscrupulous demand for an immediate narrow decision that ignores the evident parental rights problem in Skrmetti. On this point, it is noteworthy that the court recently agreed to hear the parental rights claims of conservative parents, represented by the Becket Fund, who seek to block schools’ “instruction on gender and sexuality” by relying on their right to “direct the religious upbringing of their children.” It would be bluntly discriminatory for the court to follow the DOJ’s letter and consider only the pleas of conservative parents while ignoring those who care for trans adolescents.
Since the government moved to side with Tennessee, any court that follows the Constitution rather than obeying the executive branch should respond to this change by turning its attention to the true parties injured by S.B. 1 and considering all the violations of their constitutional rights, including the unprecedented infringement on parental rights.
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