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.
