For transgender people and those who care about them, the last several months have been bleak.
In the past year, we’ve seen a wave of state laws targeting transgender athletes and even forbidding many trans people from receiving gender-affirming medical care. These laws, moreover, are part of a much broader legal assault on LGBTQ Americans, which includes attacks on drag performers, attempts to remove queer-themed books from libraries, and a simply astonishing array of anti-LGBTQ laws from the state of Florida alone.
Not that long ago, LGBTQ rights lawyers could have been fairly confident that these laws would be heavily scrutinized by the Supreme Court. Before then-President Donald Trump remade the Court by appointing a third of its members, an alliance of Justice Anthony Kennedy and four liberal justices struck down an array of laws driven by anti-LGBTQ animus. As Kennedy wrote in Romer v. Evans (1996), the first of these decisions, laws motivated by “a bare … desire to harm a politically unpopular group” are not constitutional.
But after Kennedy’s retirement in 2018 — and especially after Justice Ruth Bader Ginsburg’s death in 2020 gave Republican appointees a 6-3 majority on the Supreme Court — the future of LGBTQ rights looked grim. Many of the architects of today’s moral panic against queer people have spoken quite openly about their belief that the Court will no longer follow left-leaning precedents of all kinds. As Florida’s Republican Gov. Ron DeSantis said about one of the Court’s many 5-4 decisions where Kennedy joined the liberals in the majority, “we do not believe the Supreme Court, in its current iteration, would uphold it.”
But the picture that’s emerged since Kennedy let Trump choose his successor is more complicated than many court-watchers — including myself — predicted as we watched Trump fill the judiciary with Federalist Society stalwarts. In Bostock v. Clayton County (2020), conservative justices John…
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