Yesterday was the Tenth Anniversary of the U.S. Supreme Court’s Obergefell decision holding that a state’s denial of a marriage license to two people of the same sex is a denial of equal protection under the Fourteenth Amendment’s Equal Protection Clause. However, nine days ago, the Court said the Equal Protection Clause was not at issue when a state’s law makes it unlawful to employ certain medical interventions to treat a girl’s or boy’s gender dysphoria. What in the world is going on with the word “sex” in relation to the Constitution!? What’s next?
To be honest and to cut to the chase, I don’t know. Yet. Here is why.
The Obergefell “marriage” decision (June 26, 2015) had to mean that biological sex is irrelevant—it’s not “a thing”—when it comes to what a marital relationship can mean under state marriage licensing schemes. The classification of persons as male and female are, for that purpose, interchangeable. Therefore, and according to the Court, not granting two men or two women a license is a form of discrimination in violation of the Equal Protect Clause.
Yet, nine days ago, in United States v. Skrmetti, the Court refused to say that state laws involving boys and girls with gender dysphoria had anything to do with classifications based on sex. The majority said the law was about (1) minors vis-a-vis adults, and (2) the freedom of states to decide whether certain medical treatments involving minors could be used to treat their gender dysphoria.
In a way that treatment of the law in Skrmetti is accurate. But did only the marriage license statute involve sex? Aren’t boys and girls sex classifications? And isn’t sex involved when a state says the bodies need to conform to their biological sex so long as minor’s bodies are concerned?
A justice’s concurring opinion can often provide helpful insight into what a majority opinion doesn’t say. That may be more important than what it does say. Sherlock Holmes often solved crimes because of what he didn’t find that he should have. That is why Justice Alito’s concurring opinion is helpful.
While Justice Alito agreed with the result, he alone stated affirmatively that the Court’s precedents have never equated “gender” with biological sex: “Our use of the term ‘gender’ [in prior precedents] had no substantive significance” relative to the treatment of sex under the Equal Protection Clause.
The majority opinion never said that. Not sure what to make of that if the composition of the Court changes before that question comes up.
Alito’s statement may also sound like he doesn’t buy into the gender-identity-is-a-real-thing proposition. But his very next sentence seemed to breath some life into that proposition. Quoting the Cambridge English Dictionary (2025), he wrote:
None of our equal protection decisions has used "gender" in the sense in which it is now sometimes used, i.e., to denote "a group of people in a society who share particular qualities or ways of behaving which that society associates with being male, female, or another identity.” (Emphasis supplied)
Seems to me he is saying there is a new way of understanding “gender” that the Court has not taken up in the past from an equal protection standpoint. Again, what it will mean when the issue comes up may depend on the composition of the Court.
After saying he won’t dwell on whether “SB1 classifies on the basis of transgender status or gender identity,” Justice Alito adds that “the argument that SB1 classifies on those grounds cannot easily be dismissed.” Sounds ominous. Indeed, Alito notes that transgender discrimination is an open question:
I would assume for the sake of argument that SB1 classifies on the basis of transgender status and move on to the question whether such a classification is either suspect or "quasi-suspect" and thus warrants some form of heightened scrutiny. That important question has divided the Courts of Appeals, and if we do not confront it now, we will almost certainly be required to do so very soon. (Emphasis supplied)
He is saying that at some point this Court will have to decide if state law classifications that “discriminate” between “transgendered persons” and “cisgendered persons” are subject to heightened scrutiny to make sure they are not a pretext for real discrimination..
Alito proceeded to explain why he didn’t think transgender classifications would merit heightened scrutiny. He signaled to Court observers that he would not give the three liberal justices a fourth or fifth vote to second-guess a state legislature that makes such classifications.
But what about Chief Justice Roberts or Justices Kavanaugh or Barrett? Based on what the majority opinion said about when “heightened scrutiny” is applied, I don’t think so.
But is that the end of the line for transgenderism? No.
What Justice Alito didn’t say in relation to the transgender-based classifications seems to present a problem from the standpoint of a Christian anthropological worldview. It seems to suggest that America’s jurisprudence has room to say that gender identity is a real thing different from biological sex.
This is where Obergefell comes back into my thinking. If the Court says state laws should not accord any relevance to male and female regarding the meaning of a marital relationship, why can’t a state’s law agree on the blurring of the line? Why can’t a state’s law affirm that gender identity and morphing from one gender to the other or to no gender is a real thing? Why would such a law be unjust?
These questions are hard to answer when law is precluded from taking into account the implications of humans being created in the image of a Triune God and by creation ex nihilo—according to the mind of God and His will. Under those conditions, stuff is all that is left. And why not let each state decide what it means. Biology can mean one thing and gender can mean another, if we say so.
