Justice Thomas and Justice Barrett each wrote noteworthy concurring opinions in United States v. Skrmetti.
Thomas first explains why the reasoning of Bostock under Title VII should not be imported into the Equal Protection context. In particular: (1) The Equal Protection Clause doesn’t have the language that the Bostock majority relied on. (2) “Extending the Bostock framework here would depart dramatically from this Court’s Equal Protection Clause jurisprudence.” (3) Doing so would also “invite sweeping consequences.”
Thomas spends the bulk of his opinion explaining why the majority is right to reject “efforts by the United States [in the Biden administration] and the private plaintiffs to accord outsized credit to claims about medical consensus and expertise”:
There are several problems with appealing and deferring to the authority of the expert class. First, so-called experts have no license to countermand the “wisdom, fairness, or logic of legislative choices.” Second, contrary to the representations of the United States and the private plaintiffs, there is no medical consensus on how best to treat gender dysphoria in children. Third, notwithstanding the alleged experts’ view that young children can provide informed consent to irreversible sex-transition treatments, whether such consent is possible is a question of medical ethics that States must decide for themselves. Fourth, there are particularly good reasons to question the expert class here, as recent revelations suggest that leading voices in this area have relied on questionable evidence, and have allowed ideology to influence their medical guidance.
I’m especially pleased that Justice Thomas exposes the scandalous behavior of WPATH.
In her concurring opinion (which Justice Thomas joins), Justice Barrett spells out why transgender status does not qualify as a “suspect class” for purposes of the Equal Protection Clause and why classifications on the basis of transgender status are therefore subject to deferential rational-basis review. She and Justice Alito agree that their analyses are consistent.
The one quibble I have with Justice Barrett’s fine opinion concerns her suggestion in passing that laws and policies that govern “access to restrooms” and “eligibility for boys’ and girls’ sports teams” might coherently be thought to “classify based on transgender status.” Laws and policies that assign restroom access and sports participation by sex classify on the basis of sex and disregard transgender status. So in reviewing (and upholding) those laws and policies, courts should have no occasion to address the standard under the Equal Protection Clause for classifications on the basis of transgender status.