Hecox May Still Hide In Justice Kennedy's Shadow |
There is nothing originalist about Footnote Four, animus, and suspect classes. Let it go already.
Josh Blackman | 1.16.2026 1:38 AM
When Skrmetti was decided, I was critical of Justice Barrett's concurrence. She rehabilitated Footnote 4, gave credence to Justice Kennedy's animus jurisprudence, and all but wrote that gays who were affected by a "legacy of de jure discrimination" are a suspect class. None of these doctrines are consistent with original meaning. Yet, Justice Barrett seemed intent on fitting the transgender case into Justice Kennedy's framework. As I wrote in Civitas, "the Court remains in the shadow of Justice Anthony Kennedy." And regrettably, Justice Thomas joined this opinion, even as he previously joined Justice Scalia in repudiating the Footnote 4 dictum.
Regrettably, like a groundhog, the Justices in Hecox appear to still be hiding in Justice Kennedy's shadow. Let's start with Justice Gorsuch.
JUSTICE GORSUCH: There's another way to think about the case that your friends on the other side posit, and that is that transgender status should be conceived of as a discrete and insular class subject to scrutiny, heightened scrutiny, in and of itself given the history of de jure discrimination against transgender individuals in this country over history in immigration and family law, cross-dressing statutes, they get a long laundry list. And I'd like you to respond to that.
Justice Gorsuch seems absolutely intent on recognizing transgender people as a suspect or quasi-suspect class. He said nothing at all about the issue in Skrmetti, because he didn't have to. The Chief dodged the status issue altogether by finding non-suspect classifications based on age and medical treatment. It was a typical Robertsian dodge, that merely postponed the day of reckoning.
Perhaps the best conservative defense of Bostock is that Gorsuch was simply persuaded by the hyper-technical textualist argument he adopted (I was not), but he was agnostic about the underlying merits issue. But this question suggest that Gorsuch was also moved by the LGBT policy arguments underlying the case. Remember, an argument that cut against Gorsuch's Bostock analysis was that it would be preposterous for the Congress in 1964 to have inadvertently prohibited discrimination against transgender people. Here, Gorsuch states clearly there is a history of de jure discrimination against those people. If governments banned cross-dressing, then would Congress prohibit employers from firing cross-dressers? Wouldn't that argument undermine Gorsuch's reading of Title VII?
Alan Hurst, the Idaho Solicitor General, responded to the de jure discrimination point:
MR. HURST: Certainly, the de jure discrimination........