The case of U.S. v. Skrmetti represents an ongoing debate over the application of the Fourteenth Amendment’s Equal Protection Clause, specifically regarding the constitutional status of transgender individuals.1 The statute enacted by the state of Tennessee prohibted the medical professionals from administering procedures to “[e]nable the minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or “[t]reat purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”2 Even though the six-Justice majority opinion by Chief Justice John Roberts focused on a formalistic interpretation of Tennessee’s Senate Bill 1 (“SB1”) as a classification based on age and medical diagnosis, the concurring opinion of Justice Amy Coney Barrett challenged the recognition of transgender persons as a protected class.3 Justice Barrett, joined by Justice Thomas, argued that transgender individuals do not constitute a suspect or quasi-suspect class, asserting that transgender status lacks the “obvious, immutable, or distinguishing characteristics” of race or sex.4 I focus on two primary pillars of her reasoning: that (1) gender identity is not definitively ascertainable at birth; and (2) the transgender population is too amorphous and diverse to constitute a discrete group.5 But an analogous analysis of transgender status based upon legal precedent suggests that Justice Barrett’s interpretation of immutability is misguided.6 In addition, she defines “political powerlessness,” as “leav[ing] the affected persons altogether unable to protect themselves in the political process.”7 I argue that her definition of “political powerlessness” is also a radical departure from the Equal Protection Clause cases and threatens to undermine the protections afforded to other long-recognized suspect classes. This paper has four parts. Part I examines Skrmetti and its treatment of equal protection doctrine. Part II traces the development of the suspect-class framework and the role of immutability. Part III critiques the “amorphous group” fallacy. Finally, Part IV addresses the misunderstandings surrounding the political-powerlessness criterion in equal protection analysis.
I. Skrmetti
The case of U.S. v. Skrmetti concerned Tennessee’s SB 1, which prohibits healthcare providers from administering puberty blockers and hormone therapy to minors who intend to live in a gender identity inconsistent with their biological sex.8 The law had two primary classifications: an age-based restriction applying only to minors and a medical use restriction that permits the same treatments for non-transition purposes, such as precocious puberty or congenital defects.9 The transgender minors and their parents argued that the law violates the Equal Protection Clause by discriminating on the basis of sex and transgender status.10
The Sixth Circuit reversed a lower court’s preliminary injunction, holding that SB1 did not trigger heightened scrutiny because it did not classify based on sex or transgender status.11 The Sixth Circuit concluded that the statute satisfied rational basis review.12 The Supreme Court affirmed this ruling, and found that a mere reference to sex in a medical context is insufficient to trigger heightened scrutiny.13 The court reasoned that SB1 classified based upon “age” and “medical use,” concluding that “[n]either of the above classifications turns on sex.”14 The majority opinion, written by Chief Justice Roberts, reasoned that “[h]ealthcare providers may administer certain medical treatments to individuals ages 18 and older but not to minors”15 and “[h]ealthcare providers may administer puberty blockers or hormones to minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence.”16 Accordingly, Chief Justice Roberts concluded that “SB1 does not exclude any individual from medical treatments on the basis of transgender status” because it only “removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions.”17 Justice Barrett’s concurrence went further, aiming to close the door on future claims that transgender status should be treated as a suspect classification.18 She concluded that “[t]he Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status.”19
II. The Evolution of Suspect Class Doctrine and Immutability
This part examines how the suspect-class doctrine has evolved over time and whether the possibility of detransition presents a problem for the new understanding of immutability.
A. The Evolution of Suspect Class Doctrine
The concept of a suspect class originates in the Supreme Court’s attempt to identify groups that require judicial protection from majoritarian politics. Footnote Four of U.S. v. Carolene Products introduced the idea that “discrete and insular minorities” may require “a more exacting judicial scrutiny” when legislation targets them.20 Over time, the Court developed four primary factors in deciding whether a group is a suspect or quasi-suspect class: a history of purposeful discrimination, the possession of an immutable or highly visible characteristic, political powerlessness, and the irrelevance of the group’s distinguishing trait to their ability to contribute to society.21
Justice Barrett’s assertion that transgender status is not a suspect class because it is not “definitively ascertainable at the moment of birth”22 constitutes her most significant departure from established Equal Protection logic. By citing the Sixth Circuit’s reliance on Ondo v. City of Cleveland, she perceives suspect status as a single, biological snapshot taken at the time of delivery.23 This requirement is flawed as a matter of precedent. Unlike what Barrett claims, immutability has not always been tied to biological characteristics.24
The immutability factor was originally designed to ensure that the law does not penalize individuals for “accidents of birth” or traits that are morally irrelevant to an individual’s worth.25 But as the law evolved, the Court recognized that immutability should not be defined strictly as biological unchangeability but, rather, as a trait that an individual cannot change through reasonable efforts or should not be required to change because it is central to their personhood.26 Justice Barrett’s Skrmetti concurrence ignores this shift. Her concurrence focuses on a biological definition that rests on birth-based ascertainability.27
The Supreme Court attempted an early description of “immutable characteristics” in Frontiero v. Richardson. That description was the following:
[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility.28
The Court further noted that “what differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.29
But as additional characteristics were recognized, the old understanding of immutability—as strictly determined at birth—did not remain static as a legal precedent. Instead, courts increasingly adopted a broader conception of immutability that now appears throughout the case law.30 Immutability not only includes “a characteristic [that] members of the group either cannot change”, but also it includes characteristics that they “should not be required to change . . . because it is fundamental to their individual identities or consciences.”31
The new form of immutability was articulated by Judge William Norris in his concurrence in Watkins v. U.S. Army, a Ninth Circuit case challenging the military’s refusal to re–enlist a gay soldier.32 Judge Norris argued that immutability should not require that individuals be “physically unable to change or mask” a trait.33 Even if some people could alter characteristics such as sexual orientation through extreme measures, this possible measure did not make them meaningfully “mutable.” Many supposedly fixed traits—such as sex, citizenship, or race—can technically change, but usually only with “great difficulty” or a “traumatic change of identity,” making them effectively immutable.34 Having acknowledged that “[i]t may be that some heterosexuals and homosexuals can change their sexual orientation through extensive therapy, neurosurgery or shock treatment,” he concluded “the possibility of such a difficult and traumatic change does not make sexual orientation ‘mutable’ for equal protection purposes.”35 Judge Norris emphasized that immutability turns on identity rather than scientific proof of change. Traits should be protected when they are “so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change” them.36
One of the other obvious flaws in the “ascertainable at birth” requirement is that it fails to consider characteristics such as religion.37 Religion has long been recognized as a suspect classification, and discrimination against religious minorities is subject to strict scrutiny under the Equal Protection Clause.38 It is important to note that this protection is independent of First Amendment religious freedom: in Carolene Products, the Court did not identify religious minorities as protected merely because the First Amendment explicitly safeguards religion.39 That protection had already been recognized through religion’s presence in the Bill of Rights.40 Yet, religious identity is almost never definitively ascertainable at the moment of birth. While an individual may be born into a religious household, their personal faith is often a result of adult conversion, personal discovery, or secondary socialization.
If the government were to pass an antisemitic law that applied only to those who converted to Judaism as adults, such a law would clearly violate the Equal Protection Clause, even though the trait of “being Jewish” was not ascertainable at birth for those individuals.41 By elevating birth ascertainability to a constitutional prerequisite, Justice Barrett’s standard would logically strip religious converts—and potentially all religious minorities—of their status as a suspect class under the Fourteenth Amendment. The Court has historically protected religion under equal protection analysis not because it is fixed at birth, but because it is a fundamental aspect of identity.42 Regardless of when that religious belief becomes fixed, the State has no legitimate interest in coercing an alternative belief or penalizing it.43
Other suspect and quasi-suspect classes also fail the birth ascertainability test. Alienage triggers strict scrutiny when classified by states. Graham v. Richardson involved Arizona state statutes that withheld welfare benefits from resident noncitizens or from noncitizens who have not lived in the United States for a designated period of years.44 The Court held that these statutes violated the Fourteenth Amendment, explaining that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority. . . for whom such heightened judicial solicitude is appropriate.”45 Yet, alienage is a status that is may change years or decades after birth. A person born in a foreign country may enter the United States as an undocumented immigrant or a non–immigrant and later become a lawful permanent resident or a naturalized citizen. Their status as an “alien” is mutable and not permanently fixed at the moment of birth in the same way biological sex is purportedly fixed.46 Similarly, the status of an “illegitimate” child—which triggers intermediate scrutiny—may in some circumstances be changed through the subsequent marriage of the child’s parents or paternity claims, yet the Supreme Court continues to protect this class to prevent the State from penalizing children for circumstances around the “accident” of their birth.47
Even in cases where traditional heightened scrutiny did not apply, the Court was often hesitant to uphold laws that burdened individuals for certain circumstances beyond their control. In Plyler v. Doe, the Supreme Court invalidated a Texas law that denied public education to children who were undocumented immigrants.48 The Court recognized that undocumented status is not strictly immutable because it results from deliberate, though unlawful, conduct.49 But it emphasized that the statute effectively placed a discriminatory burden on children based on a legal status they had almost no ability to influence.50 Having acknowledged that “[u]ndocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a ‘constitutional irrelevancy,’” the Supreme Court held that “[the statute] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status.”51 Because Texas denied free education only to children of undocumented immigrants, the Court concluded that, “[i]f the State is to deny a discrete group of innocent children the free public education[,] . . . that denial must be justified by a showing that it furthers some substantial state interest.”52 The “substantial interest” standard was not part of the traditional heightened scrutiny framework in constitutional jurisprudence.53 Yet, the Supreme Court still protected the interests of individuals who had no control over their circumstances, such as children brought to the United States by their parents.54 Justice Barrett’s standard creates an arbitrary hierarchy that privileges biological traits over social and legal statuses. It implies that the Constitution only cares about accidents of birth that are visible to a doctor in a delivery room, rather than the broader set of fundamental characteristics that the State has a history of targeting for exclusion.55
Furthermore, Barrett’s narrow birth ascertainability standard might even implicate the incidents of racial discrimination. The United States has a long legal history of individuals contesting racial classification, shown in the Supreme Court’s decision in Plessy v. Ferguson. Homer Plessy claimed that his small amount of African ancestry—one Black grandparent—was not visible and therefore should not deprive him of the rights afforded to white citizens.56 Because his ancestry was not outwardly apparent, Plessy could potentially identify as Black, remain silent and be treated as white, or assert different identities in different contexts.57 This example shows the weakness of treating race as strictly immutable for constitutional analysis. If racial identity may depend partly on disclosure or social perception, limiting heightened scrutiny only to traits fixed at birth would lead to illogical results.58 This is why the Ninth Circuit Court of Appeals in Watkins reasoned the following: “Lighter skinned blacks can sometimes ‘pass’ for white, as can Latinos for Anglos, and some people can even change their racial appearance with pigment injections.”59 But racial discrimination would not become constitutional simply because a person could change or conceal their racial identity.60
B. Detransitioning and the Illusion of Identity Mutability: Immutability or Inflexibility?
Another question related to immutability that needs to be addressed is whether detransitioning defeats immutability. Justice Barrett claims that transgender status lacks immutability because some individuals detransition, returning to a gender identity that corresponds to their biological sex.61 She cites the acknowledgment of detransition by plaintiffs’ counsel during oral arguments as evidence that the trait is not unchanging, and she concludes “[a]ccordingly, transgender status does not turn on an ‘immutable . . . characteristi[c].’”62 This reasoning misconstrues the legal concept of immutability and ignores the documented causes of detransition.
While detransitioning is a phenomenon of significant clinical interest, it remains statistically rare. Prevalence estimates for detransitioning or transition regret vary depending on the criteria used, but most rigorous studies place the rate at least under 13.1%.63 More importantly, the decision to detransition is rarely driven by a change in the individual’s underlying gender identity. According to a large scale study published in LGBT Health, 82.5% of those who detransitioned cited at least one external factor, such as pressure from parents (35.5%), societal stigma (32.5%), or difficulty finding employment (26.8%).64 Only 2.4% of respondents attributed their detransition to actual doubt about their gender identity.65
By framing detransition as evidence of mutability, Justice Barrett penalizes a group for the very discrimination and social pressure they face. If a person stops identifying as transgender because they are threatened with job loss or family rejection, that does not mean their identity is “mutable” in a constitutional sense. It simply could mean their expression of that identity has been suppressed by the State or society. To use the survival strategies of a persecuted minority as a reason to deny constitutional protection is a wrong logic that might reward the successful exertion of societal pressure.
Legal immutability has never required population-wide inflexibility. As an example, in Obergefell v. Hodges, the Supreme Court noted that sexual orientation is “immutable,”66 even though some individuals may experience changes in attraction or identify differently over the course of their lives.67 The Court noted that, “in more recent years[,] . . . psychiatrists and others [have] recognized that sexual orientation is both a normal expression of human sexuality and immutable.”68 The Court’s focus was on the fact that orientation is a normal “expression” of “intimacy” and “personal bond” and that, for the vast majority of gay and lesbian people, it is a fixed and defining characteristic.69
Justice Barrett’s application of a “zero tolerance” for change standard would invalidate almost any identity-based suspect class. For instance, individuals may undergo spontaneous physical changes or social recategorization regarding their perceived race, yet race remains the most protected suspect classification because its historical use by the State has been to create a hierarchy of power.70 Likewise, the existence of so-called ex-gays does not necessarily undermine the immutability of sexual orientation. A claim of being ex-gay might be an initial misidentification of one’s sexuality or the influence of social or religious pressures, rather than a demonstration that sexual orientation itself is changeable.71 Thus, the existence of a small minority of people who move in and out of a class does not negate the discrete reality of the discrimination faced by the group as a whole.
III. The Amorphous Group Fallacy
Justice Barrett further contends that the transgender population is not a “discrete group” because it is “large, diverse, and amorphous.”72 She quotes WPATH and APA descriptions of “transgender” as an “umbrella term” encompassing a huge variety of gender identities and expressions, concluding that “[t]he boundaries of the group. . . are not defined by an easily ascertainable characteristic that is fixed and consistent across the group.”73 To support this, she draws an analogy to San Antonio Independent School District v. Rodriguez, where the Supreme Court declined to recognize the poor as a suspect class.74 In Rodriguez, the Court rejected the claim that children living in school districts with low property tax bases constituted a suspect class.75 The Court found that “the poor” were not a definable class because they did not share a single, distinguishing characteristic that had been historically excluded.76 Wealth is an economic metric that changes constantly, and people in low wealth districts were not necessarily “poor” in an absolute sense. In other words, many affluent people might also live in those districts.77 Accordingly, the court concluded, “[at best, this] system . . . allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts.”78
But transgender status is categorically different from economic wealth. Transgender individuals are united by a specific, clinical, and social trait: the incongruence between their internal gender identity and their assigned biological sex.79 This trait is the very thing that Tennessee’s SB1 uses to draw its legislative lines.80 When a law specifies that medical care is forbidden if it is for the purpose of identifying with a “purported identity inconsistent with the minor’s sex,”81 it has created the very “discrete group” that Justice Barrett claims does not exist. The State itself has identified the group, bounded it by its birth sex, and targeted it for a specific medical disability.
Justice Barrett’s requirement that a group must be “fixed and consistent”82 internally is a misreading of the “discrete and insular” requirements.83 If internal diversity were a bar to suspect status, then religion would not receive heightened constitutional protection. Religion is defined entirely by subjective, self-reported internal belief. There is no biological marker, no objective test, and no external authority that determines who sincerely holds a faith.84 It is also a vast umbrella category, which includes thousands of distinct traditions, and personal theologies. Yet courts have never hesitated to treat “religion” as a legally recognizable category because the discreteness inquiry asks whether the state can identify and target the group.85
The fact that the term “transgender” is an umbrella term is a feature of medical and social taxonomy,86 not a constitutional defect. The Supreme Court has long dealt with umbrella terms. “Race” is an umbrella term that includes thousands of different ethnic and cultural identities, yet the law treats it as a discrete category for the purpose of preventing racialized caste systems.87 By demanding a level of internal homogeneity that no large human group possesses, Justice Barrett sets an impossible standard that would effectively end the Supreme Court’s ability to protect any new minority groups. In addition, some of the confusion in Justice Barrett’s articulation appears to stem from an overly broad understanding of the term “transgender.”88 If the term were defined more narrowly—individuals whose gender identity is not similar with their biological sex, excluding categories such as nonbinary identities—it would easily satisfy the requirement that members of the class share a common defining trait. This definition contrasts plaintiffs’ counsel’s broad definition, which included “people who fall within a transgender identity who may not fit into a binary identity.”89
Another tension exists in the false analogies made concerning the difference between, on one hand, economic welfare and, on the other, the fundamental characteristics to one’s identity. In her concurrence, Justice Barrett relies on Lyng v. Castillo and Bowen v. Gilliard to argue that transgender status does not turn on an immutable characteristic.90 These cases, however, dealt with administrative classifications in the context of federal welfare benefits, which are fundamentally different from the identities traditionally protected by the Equal Protection Clause.91 Lyng v. Castillo was about a challenge to a food stamp regulation that required parents, children, and siblings living together to be treated as a single “household” for the purpose of determining benefit levels.92 The Supreme Court found that “close relatives” were not a suspect class because the grouping was for administrative convenience and did not “directly and substantially” interfere with family living arrangements.93 Similarly, Bowen v. Gilliard was concerned with a regulation in the Aid to Families with Dependent Children program that required families to assign child support payments to the State as a condition of eligibility.94 This requirement effectively resulted in treating the income of one child as the income of the entire household.95 The Court applied rational basis review, noting that the regulation was a rational way to distribute limited public funds among needy families.96
Justice Barrett’s use of these cases to analyze transgender identity is a significant categorical error. Household composition for the purpose of calculating food stamps is a transient, economic arrangement; gender identity is an intrinsic, pervasive aspect of a human being’s personhood. Being a “close relative” in a welfare filing is not a defining trait that has historically been used to justify systemic social degradation or the denial of fundamental civil rights.97 Similarly, the court in Rodriguez recognized that, “at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.”98 In contrast, transgender status is a trait that defines a person’s place in society. Comparing the two trivializes the nature of transgender status and suggests that gender identity is no more significant to the human experience than a child support assignment.
IV. The Misunderstanding of Political Powerlessness
Justice Barrett also claims that transgender status does not meet the “politically powerless” requirement for suspect status.99 But the “political powerlessness” factor does not require a group to have zero political influence;100 it asks whether they are so removed from the political mainstream that the traditional democratic process is unlikely to protect their fundamental rights.101
It is important to note that political powerlessness “does not require a showing that the group seeking recognition as a protected class is, in fact, without political power.”102 As the Connecticut Supreme Court held in 2008, “courts continue to apply heightened scrutiny to statutes that discriminate against women and racial minorities notwithstanding the great strides that both groups have made and continue to make in recent years in terms of their political strength.”103 Sex classification poses another relevant example. In Frontiero, the U.S. Supreme Court recognized sex as a quasi-suspect class.104 This recognition occurred after the Supreme Court acknowledged that “the position of women in America has improved markedly in recent decades,”105 and that, “when viewed in the abstract, women do not constitute a small and powerless minority.”106 The Court also recognized that Congress had increasingly demonstrated concern about classifications based on sex, as “women were not politically powerless in an absolute sense when they first were accorded heightened constitutional protection in the early 1970s.”107 Title VII of the Civil Rights Act of 1964 explicitly prohibited employers from discriminating against individuals on the basis of race, color, religion, sex, or national origin.108 Even after Title VII’s passage, the Supreme Court still held that women satisfy the political powerlessness requirement of a quasi-suspect class in the legal sense.109 Therefore, “political powerlessness” indicates “a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process.”110 This is quite contrary to how Justice Barrett explained “political powerlessness” in a literal way as “leav[ing] the affected persons altogether unable to protect themselves in the political process.”111 This articulation of “political powerlessness” is erroneous.
It is also noteworthy that the Sixth Circuit Court of Appeals opinion that Justice Barrett repeatedly relied on made a similar mistake by noting that “[a] national anti-discrimination law, Title VII, protects transgender individuals in the employment setting” in concluding that transgender individuals are not politically powerless.112 While it is accurate that Title VII protects transgender individuals from employment discrimination in the private sector, it is equally important to ask how that protection come into being. The answer is the Supreme Court’s decision in Bostock v. Clayton County, a case interpreting Title VII.113 In other words, that protection did not result from new legislation enacted by a political branch—say, Congress—but rather it emerged through judicial interpretation. This reality debunks the Sixth Circuit Court of Appeals’s reasoning: the protection for transgender individuals came from the courts, rather than from the ordinary political process.
The current legislative landscape is a textbook example of majoritarian overreach against a vulnerable minority. Over half of U.S. states have enacted comprehensive bans on gender affirming care for minors.114 The fact that legislatures are passing these laws with overwhelming majorities—and, often, overriding gubernatorial vetoes—demonstrates that transgender people lack the political power to defend themselves against the State.115 According to the Carolene Products framework,116 this situation is exactly when the judiciary is supposed to step in.117 Under this view, political process is systematically distorted that discrete and insular minorities are unable to protect their interests through ordinary political channels.118 Heightened scrutiny is appropriate not because courts are enforcing substantive moral judgments, but because certain groups are effectively excluded from meaningful participation in political decision-making.119 If the Supreme Court only protects groups that have already won political power, then the Equal Protection Clause becomes a reward for success, rather than a shield for the vulnerable.120
Conclusion
By characterizing the transgender population as an “insufficiently discrete and insular minority,” Justice Barrett would allow the State to ignore the specific harms caused by targeted legislation.121 She asserts that recognizing transgender persons as a suspect class would require courts to “oversee all manner of policy choices.”122 This is a classic floodgates argument used to justify judicial abdication.123 But the standard of heightened scrutiny does not strip legislatures of their power; it simply requires them to prove that their classifications are “substantially related” to an “important government interest.”124
Tennessee’s interest in “protecting minors” is a legitimate one,125 but under heightened scrutiny, the State would have to prove that banning hormones only for transgender youth—while allowing them for cisgender youth—is substantially related to achieving that goal.126 By applying only rational basis review, Justice Barrett allows the State to use phrases such as “concededly weak evidence”127 and “scientific uncertainty”128 as a pretext for identity-based exclusion. The standard of review incorporated by the courts is critical, as it will have significant impact on transgender rights in the near future.
* Mohammad Khalilzadeh is a J.S.D. candidate at the University of Illinois College of Law. He previously taught Law 500 (Legal Research and Writing) for graduate law students at the University of Illinois as an adjunct instructor. His scholarship focuses on constitutional law, constitutional design, equal protection, judicial review, and comparative constitutional law.
1. U.S. v. Skrmetti, 605 U.S. 495 (2025).
2. Tenn. Code Ann. §§ 68–33–103(b)(1)4 (A-B) (2023).
3. Id. at 547–57 (Barrett, J., concurring).
4. Id. at 550 (Barrett, J., concurring).
5. Id. at 550–51 (Barrett, J., concurring).
6. See infra Section II.B.
7. Id. at 556 (Barrett, J., concurring).
8. Id. at 505–506.
9. Id.
10. Id. at 507.
11. L.W. v. Skrmetti, 83 F.4th 460, 480 (6th Cir. 2023).
12. Id. at 486–87.
13. Skrmetti, 605 U.S. at 511–13.
14. Id. at 511.
15. Id.
16. Id. at 514 (emphasis added).
17. Id. at 518-19.
18. Id. at 547–57 (Barrett, J., concurring).
19. Id. at 557 (Barrett, J., concurring).
20. U.S. v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
21. Bowen v. Gilliard, 483 U.S. 587, 602-603 (1987); Frontiero v. Richardson, 411 U.S. 677, 686 (1973).
22. Skrmetti, 605 U.S. at 550 (Barrett, J., concurring).
23. Id.
24. See Marcy Strauss, Reevaluating Suspect Classifications, 35 Seattle U. L. Rev. 135, 162 (2011).
25. Frontiero, 411 U.S. at 686.
26. Tiffany C. Graham, The Shifting Doctrinal Face of Immutability, 19 Va. J. Soc. Pol’y & L. 169, 200 (2011). (describing the shift from a “traditional fault-based model to a new autonomy-based model”).
27. Skrmetti, 605 U.S. at 550 (Barrett, J., concurring).
28. Frontiero, 411 U.S. at 687.
29. Id.
30. Cabrera v. Garland, 100 F.4th 312, 321 (1st Cir. 2024); see Montoya-Lopez v. Garland, 80 F.4th 71, 82 (1st Cir. 2023); Macedo Templos v. Wilkinson, 987 F.3d 877, 882–83 (9th Cir. 2021).
31. Id.
32. Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989).
33. Id. at 726.
34. Id.
35. Id.
36. Id.
37. See Brief of Amici Curiae Professors of Constitutional Law in Support of Respondents at 11–12, Little v. Hecox & West Virginia v. B.P.J., Nos. 24-38, 24-43 (Nov. 17, 2025).
38. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (reasoning “[u]nless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations”); Burlington N. R.R. Co. v. Ford, 504 U.S. 648, 651 (1992) (describing classifications drawn along “suspect lines like race or religion”); see also Steven G. Calabresi & Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers, 65 Fla. L. Rev. 909 (2013) (arguing that “[r]eligion is a suspect classification such that discrimination on the basis of religion ought always to be subjected to strict scrutiny, which is strict in theory and fatal in fact.”).
39. Michael C. Dorf, Is Religion a Suspect Classification Independent of the First Amendment?, Dorf on Law (Nov. 21, 2025), https://www.dorfonlaw.org/2025/11/is-religion-suspect-classification.html [https://perma.cc/9V7E-TPS8].
40. Id.
41. Id.
42. Id.
43. See Latta v. Otter, 771 F.3d 456, 464 n.4 (9th Cir. 2014) (reasoning that “[w]e have recognized that ‘[s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them’” (quoting Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000)); De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015) (reasoning that “sexual orientation is so fundamental to a person’s identity that one ought not be forced to choose between one’s sexual orientation and one’s rights as an individual—even if one could make a choice”).
44. Graham v. Richardson, 403 U.S. 365, 367 (1971).
45. Id. at 372.
46. Id.
47. Clark v. Jeter, 486 U.S. 456, 461 (1988) (holding that classifications based on illegitimacy are subject to intermediate scrutiny); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972) (arguing that “visiting this condemnation on the head of an infant is illogical and unjust”).
48. Plyler v. Doe, 457 U.S. 202 (1982).
49. Id. at 223.
50. Id.
51. Id.
52. Id. at 230.
53. See Mary Jean Moltenbrey, Alternative Models of Equal Protection Analysis: Plyler v. Doe, 24 B.C.L. Rev. 1363, 1366 (1983) (reasoning that “[t]he Plyler opinion indicates a strong shift away from a strict two-tiered equal protection analysis and toward the use of a balancing approach”).
54. Id.
55. Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 15 (2015) (“Immutability is therefore not confined to biological traits; as this legitimacy example demonstrates, social categories too may be assigned at birth.”).
56. Plessy v. Ferguson, 163 U.S. 538 (1896). (Plessy reasoned “that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the white race by its constitution and laws.”).
57. Anthony R. Enriquez, Assuming Responsibility for Who You Are: The Right to Choose “Immutable” Identity Characteristics, 88 N.Y.U. L. Rev. 373, 383 (2013).
58. Id. at 384.
59. Watkins v. U.S. Army, 837 F.2d 1428, 1446 (9th Cir. 1988).
60. Id. (reasoning that “[r]acial discrimination, for example, would not suddenly become constitutional if medical science developed an easy, cheap, and painless method of changing one’s skin pigment”).
61. U.S. v. Skrmetti, 605 U.S. 495, 551 (2025) (Barrett, J., concurring).
62. Id.
63. Pablo Expósito-Campos et al., Gender Detransition: A Critical Review of the Literature, 51 Actas Esp. Psiquiatr. 98, 103 (2023).
64. Fenway Health, New Study Shows Discrimination, Stigma, and Family Pressure Drive “Detransition” Among Transgender People (Apr. 7, 2021), https://fenwayhealth.org/new-study-shows-discrimination-stigma-and-family-pressure-drive-detransition-among-transgender-people/ [https://perma.cc/JV2R-MCT9].
65. Id.
66. Obergefell v. Hodges, 576 U.S. 644, 661 (2015).
67. See Eliot T. Tracz, The Inscrutable Bisexual: An Essay on Bisexuality and Immutability, 21 Seattle J. Soc. Just. 917, 930 (2023) (questioning 100% inflexibility for “individuals who have experienced a lifelong attraction to people of the same sex only to discover later in life that they are, in fact, capable of attraction to someone of another sex or gender”).
68. Obergefell, 576 U.S. at 661.
69. Id. at 666 (“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”); see also Lawrence v. Texas, 539 U.S. 558, 567 (2003) (reasoning that, “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring”).
70. See Michael C. Dorf, The Roberts Court Puts a Velvet Glove on the Iron Fist of Anti-Trans Backlash, Justia Verdict (June 23, 2025), https://verdict.justia.com/2025/06/23/the-roberts-court-puts-a-velvet-glove-on-the-iron-fist-of-anti-trans-backlash [https://perma.cc/APG9-9Q3D].
71. Tracz, supra note 67.
72. U.S. v. Skrmetti, 605 U.S. 495, 551 (2025) (Barrett, J., concurring).
73. Id. (Barrett, J., concurring).
74. Id. at 550 (Barrett, J., concurring).
75. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).
76. Id. at 25 (reasoning that “the disadvantaged class is not susceptible of identification in traditional terms”); see id. at 28.
77. Id. at 23 (“Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts.”).
78. Id. at 28.
79. Transgender, Merriam-Webster, https://www.merriam-webster.com/dictionary/transgender [https://perma.cc/J3P3-4M5Q].
80. Skrmetti, 605 U.S. at 505–06.
81. Tenn. Code Ann. §§ 68–33–103(a)(1)(A), (a)(1)(B) (2023).
82. U.S. v. Skrmetti, 605 U.S. 495, 551 (Barrett, J., concurring).
83. U.S. v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
84. Thomas v. Review Board, 450 U.S. 707, 714 (1981) (reasoning that “the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question.”).
85. See supra note 38.
86. Transgender, supra note 79.
87. See Loving v. Virginia, 388 U.S. 1, 11 (1967); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995) (holding that racial classifications are subject to strict scrutiny).
88. Transcript of Oral Argument at 100, United States v. Skrmetti, No. 23-477 (Dec. 4, 2024).
89. Id.
90. Skrmetti, 605 U.S. at 550–01 (Barrett, J., concurring).
91. Lyng v. Castillo, 477 U.S. 635, 636 (1986); Bowen v. Gilliard, 483 U.S. 587, 591–94 (1987).
92. Lyng, 477 U.S. at 636.
93. Id. at 638.
94. Bowen, 483 U.S. at 591–94.
95. Id. at 594.
96. Id. at 603.
97. Lyng, 477 U.S. at 636; see Mass. Bd, of Retirement v. Murgia, 427 U.S. 307, 313–14 (1976).
98. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24 (1973).
99. U.S. v. Skrmetti, 605 U.S. 495, 556 (2025).
100. William N. Eskridge Jr., Is Political Powerlessness a Requirement for Heightened Equal Protection Scrutiny?, 50 Washburn L.J. 1, 18 (2010) (reasoning that “a minority group is totally powerless, because of social prejudice or pervasive stereotyping, the Equal Protection Clause will not protect that group”).
101. See Varnum v. Brien, 763 N.W.2d 862, 894 (Iowa 2009) (reasoning that “the political powerlessness factor of the level-of-scrutiny inquiry does not require a showing of absolute political powerlessness”).
102. Kerrigan v. Comm’r of Pub. Health, 289 Conn. 135, 196 (2008).
103. Id. at 191.
104. Frontiero v. Richardson, 411 U.S. 677, 685 (1973).
105. Id.
106. Id. at 686 n. 17.
107. Kerrigan, 289 Conn. at 196.
108. 42 U.S.C. § 2000e-2(a).
109. Frontiero, 411 U.S. at 687; see also Marcy Strauss, Reevaluating Suspect Classifications, 35 Seattle U. L. Rev. 135, 157 (2011) (describing the practice of measuring political powerlessness by the mere existence of “beneficial laws” as “naïve”).
110. Kerrigan, 289 Conn. at 197.
111. U.S. v. Skrmetti, 605 U.S. 495, 556 (2025).
112. L.W. v. Skrmetti, 83 F.4th 460, 487 (6th Cir. 2023).
113. Bostock v. Clayton Cnty., 590 U.S. 644, 683 (2020) (“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”).
114. Movement Advancement Project, Healthcare Laws and Policies: Bans on Gender-Affirming Care for Transgender Youth (2025); see also Jody L. Herman, Andrew R. Flores & Christy Mallory, The Impact of 2025 State Anti-Transgender Legislation on Youth 3 (Williams Inst., UCLA Sch. of L. 2026).
115. Morgan Chilson, Kansas Senate Overrides Governor’s Veto of Anti-Trans Bathroom Bill, Kan. Reflector (Feb. 17, 2026), https://kansasreflector.com/2026/02/17/kansas-senate-overrides-governors-veto-of-anti-trans-bathroom-bill/ [https://perma.cc/8ZSV-LR2A].
116. U.S. v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).
117. Katie Eyer, Anti-Transgender Constitutional Law, 77 Vand. L. Rev. 1113, 1128 (2024) (arguing that, after applying the traditional suspect-class test, it is difficult to deny that discrimination against transgender people demands quasi-suspect status)
118. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 83-86 (1980); see also David A. Strauss, Modernization and Representation Reinforcement: An Essay in Memory of John Hart Ely, 57 Stan. L. Rev. 761, 764–65 (2004).
119. See Ely, supra note 118. at 73-77; see also Strauss, supra note 118, 766.
120. See Ely, supra note 118, at 103–04 (arguing that judicial review is justified when the political process fails to protect vulnerable minorities).
121. U.S. v. Skrmetti, 605 U.S. 495, 557 (Barrett, J., concurring).
122. Id. at 551 (Barrett, J., concurring).
123. See Gene R. Nichol Jr., Judicial Abdication and Equal Access to the Civil Justice System, 60 Case W. Rsrv. L. Rev. 325, 359 (2010).
124. See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976) (holding that gender classifications must be “substantially related to achievement of important governmental objectives”).
125. See supra, Part II.
126. See supra, Part II.
127. Skrmetti, 605 U.S. at 547 (Thomas, J., concurring).
128. Id. at 540 (Thomas, J., concurring).
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