New in City Journal: "The Transgender Tide Has Turned at the Supreme Court"

City Journal has published my new essay, “The Transgender Tide Has Turned at the Supreme Court.” This piece was largely inspired by the lopsided ruling in Chiles v. Salazar, but reflected some of my observations over the past year about Schilling, Skrmetti, Mahmoud, Orr, Mirabelli, and B.P.J. Here is the introduction:

“The arc of the moral universe is long, but it bends toward justice.” Progressive like to cite this maxim because, in their view, the arc inevitably bends in one direction: to the left. Except when it doesn’t.

Over just six years, the American public’s perception of transgender rights has swung like a pendulum from the left to the right. Perhaps nothing illustrates this movement more clearly than six recent Supreme Court decisions recognizing that parents and governments may indeed preserve traditional understandings of gender.

And the conclusion:

These six (and likely seven) rulings would have been unthinkable in the immediate aftermath of Bostock. Indeed, the Supreme Court rejected a case identical to Chiles as recently as 2023. But times changed. Votes changed, too. Chief Justice John Roberts and Justice Neil Gorsuch, who joined the majority in Bostock, were also in the majority of the six recently decided cases and seem likely to do so as well in B.J.P.

Nor did all these cases involve a typical 6-3, conservative-liberal split. In Skrmetti, Justice Elena Kagan dissented but did not actually state that the Tennessee law was unconstitutional. (She would have reviewed the law with a more rigorous test than the majority did.) In Mirabelli, Justices Kagan and Ketanji Brown Jackson rejected the Supreme Court’s interim ruling on the emergency docket but offered no defense of California’s law. Indeed, Justice Kagan was surprisingly sympathetic to the claims of the parents. The vote in Chiles was 8-1, with Justices Kagan and Sonia Sotomayor writing separately to argue that Justice Jackson misunderstood Free Speech law. I suspect that the vote in B.J.P. could be 7-2, 8-1, or even 9-0.

Like pendulums, moral arcs can swing in both directions. At some point, restrictions on transgender rights may go too far. The goal should be an equilibrium that preserves the freedom to adhere to traditional understandings of biological sex.

I think this essay synthesizes a recent and important trend at the Court.

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