On June 18, the Supreme Court upheld a Tennessee law that prohibits medical transitions transgender minors. In this episode, William Eskridge Jr. of Yale Law School and Christopher Green of The Ohio State University join to debate the decision and to discuss the meaning of the Equal Protection Clause of the 14th Amendment.
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Today’s episode was produced by Samson Mostashari, Griffin Richie, and Bill Pollock. It was engineered by Bill Pollock. Research was provided by Samson Mostashari, Griffin Richie, Cooper Smith, Gyuha Lee, and Tristan Worsham.
Participants
William N. Eskridge Jr. is the Alexander M. Bickel Professor of Public Law at Yale Law School. He is a graduate of Yale Law School. Eskridge has published a field-establishing casebook on sexuality, gender, and the law, and dozens of law review articles articulating a legal and political framework for proper state treatment of sexual and gender minorities.
Christopher Green is the associate director of the Chase Center for Civics, Culture, & Society at The Ohio State University. He is a graduate of Yale Law School and clerked for Judge Rhesa H. Barksdale on the Fifth Circuit. Green is the author of Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015) and a large number of articles and essays on constitutional theory and the 14th Amendment.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional Resources
- United States v. Skrmetti (2025)
- Christopher Green, Brief amici curiae, United States v. Skrmetti (Oct. 15, 2024)
- William Eskridge, et al., Brief amici curiae, United States v. Skrmetti (Sept. 3, 2024)
- Geduldig v. Aiello (1974)
- Bostock v. Clayton County (2020)
Christopher Green argues for a citizenship-based approach to equal protection which would replace formalistic tiers of scrutiny with a more historically grounded framework rooted in the government's duty to act as a trustee for all citizens.
Christopher Green: If you look at William Blackstone, if you look at Marbury versus Madison, it actually talks about the entitlement to receive the protection of the laws. That doesn't mean just equal laws in general. It means the entitlement to protection from violence. Paradigmatically during Reconstruction, Klan violence, protection from violence and the right to a remedy. Equality is a huge part, of course, of the 14th Amendment, but it's equality based on citizenship. And the model that I promote, and actually it's very similar to what Bill says in his amicus brief, is trustees and beneficiaries. So if I'm a trustee, if I've been put in charge of a pot of money for a bunch of my nieces and nephews or something, I have a duty to give impartial attention to the interests of everybody concerned. So Bill's brief ends with this quote from Charles Sumner about very much striking that theme. And I read that and I thought, oh my goodness, I wish I'd read that quote a year ago when I was putting together an article on that topic, because it's perfect. It's like exactly the vision that Harlan had about what it means to be a citizen, lots of other definitions.
And that's the kind of basis for equality doctrine, equal citizenship, that the Court…they can go there. Nobody really has pushed back on that view of the 14th Amendment history at all. Both sides, amicus briefs, suggest this kind of approach. And what it would mean would mean something more than rational basis scrutiny. It would mean looking at the government the way a court would look at a trustee and say, look, you are a trustee for the public good. That means the good of everybody. Are you genuinely benevolently concerned with everybody's flourishing or are you out to get people? So and of course, it wouldn't solve all the problems. It wouldn't decide how much risk tolerance do we need to have about Margaret Atwood fears and the like. But the court would, I think, be justified and say, look, it's not our job to eliminate risks that are that low, politically speaking. As Bill says, everything has risks and allowing majorities to regulate medicine, which we have done for a long, long, long time, including medicine that is used by children that the parents might want.
You have had that ever since you've had a government coming in and making decisions about what kind of commerce you have. Birth control, alcohol, just any kind of drugs are always been subject to regulation. Parents can't just override those because it's for it's for children. Given that tradition, given the tradition of pursuing the common good through paternalistic legislation, it seems like this this would pass that that kind of test. But the court didn't really ask that kind of question. So I'm hoping that in future cases, they will they will give it give a little bit of thought to replacing the tears of scrutiny, the kind of formalistic exception to formalistic rules that they've got now with something that's a little more supple and able to deal with shades of gray a little bit better. They really want things to be black and white. And they put together a bit of a kludge. It looks like it has rules, but it has a lot of a lot of wiggle room about how you can can manipulate it. A citizenship based approach to equality, I think, would be a lot better.
Excerpt from interview: William Eskridge criticizes the Court’s broad reading of Geduldig, arguing that it undermines sex discrimination protections because it could enable laws that target women or reproductive rights to evade heightened scrutiny by avoiding explicit references to sex.
William Eskridge: Well, the first thing I would say is that everybody is overreading Geduldig. If you actually read Geduldig, and I've also read the Justice's conference notes and so on and so forth, if you actually read it, the majority does seize upon footnote 20. That is a footnote. The main holding of Geduldig was that California claimed that its system of disability benefits would go bankrupt if pregnancy were included. And that was mainly what the majority talked about in Geduldig. But they do have that footnote exactly as Christopher is describing it. So Geduldig can be read narrowly or can be read broadly, and the Roberts Court is reading it as broadly as possible, if not beyond. So is this egregiously wrong? Well, of course it is. How can you, with a straight face or a transgender face, say that discrimination based upon pregnancy is anything but sex discrimination? Hey, indeed, Tennessee recognized that in the statute we're talking about. Can we read the statute again? Section 101M as in Mary of the Tennessee statute says that this state has a legitimate, substantial, and compelling interest in protecting the ability of minors to develop into adults who can create children of their own.
And again, I will repeat, Geduldig, the California statute did not use the word sex. It simply said, here's what we're covering, and we're not covering pregnancy. It did not say sex. The Tennessee statute says sex, sex, sex, sex, sex, all over the place in 101 and 103, which are the findings and the prohibitions. So it seems to me that this is severely objectionable. Now, here's the news, and that is if you are a Republican legislator who wants to conduct a war on contraception, make it difficult for women without resources, persecute transgender people, persecute gay people, get political points for this, political points for that, the Roberts Court has given you a pathway to Margaret Atwood's The Handmaid’s Tale. Okay? I'll give you an example. The Tennessee statute regulates birth control pills. Aha! How is that? Well, birth control pills, as I understand it, contain hormones. Hormones are forbidden to transgender youth under certain circumstances, so you'd have to figure that out. But they're perfectly okay under this statute for cisgender adolescents. I think there's another Tennessee statute that says you've got to get parental permission. But again, that would make it okay. So under the Roberts approach and Geduldig, you could say, hey, teenage girls generally cannot have access to birth control pills.
So no abortions, so limit birth control, state-regulate the conditions of pregnancy. And again, you don't use the word sex. The Tennessee statute repeatedly uses the word sex. You avoid that, and Geduldig gives you a roadmap toward The Handmaid’s Tale. Now, the Republican Party does not support The Handmaid’s Tale. I'm just saying that the Roberts Court is laying out a path which is a very dangerous one. I'll make this other point. You literally cannot believe Geduldig. I'll give you an example. The state is an employer. States employ a lot of people. If the state says, we will not hire women, we will hire men. Christopher, Jeff, I hope we would all agree that's sex discrimination, intermediate scrutiny. But what if the state says, oh, we'll hire women and men, but not mothers, right? In other words, women with children, say, under the age of 18. Is that not sex discrimination? It's gotta be, but it's not under Geduldig because it just says mothers with children under 18. And under the Skrmetti argumentation, that is not sex discrimination. Justice Alito says so explicitly. Chief Justice Roberts does not say so explicitly, but that would be an implication of the kind of analysis that you get if you take Geduldig's footnote 20 seriously. And I think the court probably would not press it in that direction, but I think the court is being inconsistent.
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