On Thursday, what could be the single most important transgender rights case in American history reached the Supreme Court.
West Virginia v. B.P.J. asks the Supreme Court to address whether any government discrimination against transgender people is inherently suspect under the Constitution, and thus must be subject to “heightened scrutiny” by the courts. If the Supreme Court reaches this question, it will be the justices’ first decision on whether the Constitution provides broad protection against anti-trans discrimination (although the Court has held that a federal statute prohibits such discrimination by employers).
The determination that a marginalized group is protected by this heightened scrutiny is one of the most consequential decisions the Supreme Court can make. While trans advocates could still lobby Congress and their state legislatures to pass trans rights legislation even if they lose the B.P.J. case, winning it would offer the immense power of being able to invoke the Constitution as a shield. B.P.J. could determine whether transgender people may demand equal treatment from each of the 50 states, even if those states are governed by anti-trans officials who enact discriminatory laws.
B.P.J. arises on the Court’s seemingly ever-growing shadow docket, a process that allows the Court to resolve cases on a very tight time frame — sometimes handing down a decision in days, and forgoing the months of briefing, argument, and deliberation that normally proceed a Supreme Court decision.
And that tight time frame could matter.
By sheer coincidence, another (hopefully less consequential) story involving the legal community’s approach to trans rights played out on the other side of the country the same day B.P.J. arrived at the Court.
Judge Kyle Duncan, a Trump appointee to a federal appeals court and an unusually outspoken opponent of transgender rights, delivered a talk at Stanford Law School where he was repeatedly heckled by students. The story has played out more or less the same way a zillion other debates about campus protests have played out, with Duncan demanding an apology (and receiving one from Stanford), and his allies claiming that “free speech is dead” and calling for a Stanford official to be fired.
Given the insularity of the elite legal world, it’s more than possible this incident will be on many of the justices’ minds as they read through the briefing in the B.P.J. case. Duncan was at Stanford as a guest of the campus chapter of the Federalist Society, the powerful conservative legal organization with close ties to most of the justices. And Duncan is a sitting federal judge, a profession that has historically been treated with obsequious regard by law schools, and one that the justices themselves belong to.
Duncan has also given at least two interviews to conservative media outlets, and the right-wing press provided sympathetic coverage of him all weekend.
So it’s easy to see why, in this moment when the Court is considering this high-stakes trans rights case, some of the justices could feel sympathy for a leading opponent of transgender rights. And why they might be inclined to view trans rights activists with suspicion.
There’s no reason why a minor story about a campus protest needs to impact the fate of transgender rights in the Supreme Court. The justices could simply decide to wave away the shadow docket motion that is currently before them, and wait to decide a case like B.P.J. until after it arrives on the Court’s regular docket through the ordinary, more deliberative process.
That wouldn’t guarantee the plaintiff in B.P.J. a win. It’s likely any trans rights plaintiff would already face an uphill battle in the current, very conservative Supreme Court. Republican appointees have a supermajority in this Court, at the same time that Republicans throughout the country are pushing legislation attacking transgender people.
Nevertheless, if one of the most consequential transgender rights cases that will ever be decided by the Supreme Court were decided hastily, that could be bad news for trans people. It is rarely a good thing if the Court races to decide an important issue, but it’s even worse if they do so because people in the justices’ own social and professional circles are busy ginning up a moral panic.
The B.P.J. case, briefly explained
The plaintiff in B.P.J. was a sixth grade student when she filed this lawsuit. She hoped to join the girls’ cross country and track teams at her school, but because she is transgender, she was not allowed to under a West Virginia law, which provides that school athletes must play for the team that corresponds with their “biological sex.” She sued to challenge this law.
The case has bounced around the lower courts since 2021, which have issued a series of contradictory rulings. A federal trial court temporarily blocked the law in 2021, but then it issued a final ruling last January holding that West Virginia’s law is “constitutionally permissible.” In February, a federal appeals court temporarily blocked the law once again, but this order will only remain in effect while the case is on appeal.
In its latest court filing, the state asked the Supreme Court to reinstate the law, at least temporarily while the case is litigated.
So what are the stakes in the case?
The plaintiff in B.P.J., who is identified by her initials because she is a minor, makes several legal arguments against the West Virginia law, including an argument that the law violates constitutional and statutory prohibitions on sex discrimination. One of her most significant arguments is that the Constitution casts an exceedingly skeptical eye on any law that discriminates against transgender people.
The mere fact that this law discriminates is not enough for B.P.J. to prevail, as the Constitution permits the government to engage in discrimination all the time. The government discriminates against people under the age of 65, for example, in deciding who is eligible for Medicare. Discrimination — that is, deciding who receives government benefits and who doesn’t, and who must go to jail and who must not — is an essential part of governance.
But certain kinds of discrimination are not allowed, and the Supreme Court has developed a rich jurisprudence laying out what types of discrimination are odious to the Constitution. As the Court held in Cleburne v. Cleburne Living Center (1985), groups that have experienced a “history of purposeful unequal treatment” which “frequently bears no relation to ability to perform or contribute to society,” should enjoy enhanced protections against discrimination. These enhanced protections are known as “heightened scrutiny.”
Discrimination on the basis of race or sex, for example, is subject to heightened scrutiny.
When a civil rights plaintiff benefits from heightened scrutiny (which comes in two forms: a stronger “strict” form and a somewhat weaker “intermediate” form) they arrive at court with a presumption that any governmental discrimination against them is unconstitutional. The state can potentially rebut this presumption. But, at a bare minimum, such a discrimination “fails unless it is substantially related to a sufficiently important governmental interest.”
Indeed, if the Court uses the B.P.J. case to resolve whether heightened scrutiny applies to anti-trans discrimination, it could prove to be the most consequential trans rights case the Supreme Court will ever decide. Heightened scrutiny is not an absolute shield against discrimination — the trial judge in this very case applied intermediate scrutiny and still upheld the West Virginia law — but the decision whether a marginalized group can invoke the protections of heightened scrutiny has monumental consequences.
Again, it will determine whether, every time an anti-trans law is challenged in court, the judge must start with a presumption that the law is unconstitutional.
In the best-case scenario for trans litigants, B.P.J. could set a baseline for transgender rights in much the same way that cases like Brown v. Board of Education (1954) established a legal baseline protecting against race discrimination. Brown did not end racism any more than B.P.J. can end transphobia. But a big victory for trans rights in B.P.J. would enlist the entire federal judiciary into the fight for transgender justice.
What does it mean that this case arose on the shadow docket?
Historically, the Supreme Court was very reluctant to issue orders second-guessing a lower court before an appeals court had issued its final decision on the case. Justices used to be so hostile to these sorts of requests that lawyers were reluctant to even make them. According to a November 2019 paper by University of Texas law professor Stephen Vladeck, “during the sixteen years of the George W. Bush and Obama Administrations, the Solicitor General filed a total of eight” Supreme Court applications seeking to stay a lower court’s decision — “averaging one every other Term.”
The Trump administration, however, abandoned this traditional reticence. As Vladeck wrote in his 2019 paper, Trump’s “Solicitor General has filed at least twenty-one applications for stays in the Supreme Court (including ten during the October 2018 Term alone).” And the conservative Court rewarded this behavior. Vladeck found that the Trump administration achieved a full or partial victory in about two-thirds of these cases.
This alternative pathway, where the justices sometimes express their views on a case much sooner than they would under the ordinary appellate process, was named the shadow docket by University of Chicago law professor William Baude in 2015.
Other conservative litigants have also had great success on the shadow docket, sometimes scoring major, precedent-setting decisions. In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), for example, the Court handed down a decision on its shadow docket that effectively gutted 30 years of precedent establishing that people who object to a state law on religious grounds must follow it if it is a “neutral law of general applicability” — meaning that the law applies on equal terms to religious and non-religious people.
So the Court will have to decide just how quickly it wants to move in B.P.J. It could simply deny the state’s request (which was the ordinary practice in the pre-Trump years). It could signal to lower court judges that it is skeptical that B.P.J. will prevail by granting the request without much of an explanation. And there’s at least some chance that the Court could issue a major precedent-setting decision right away.
There are no rules guiding which path the justices have to take. And the justices abandoned their old norms warning against overuse of the shadow docket during the Trump administration. So, if the justices are currently in an unusually ungenerous mood toward transgender rights activists, nothing but their own consciences prevent them from handing down a sweeping opinion after mere days of deliberation.
So what does any of this have to do with Stanford?
Kyle Duncan may be the most outspoken opponent of transgender rights within the federal government. He previously worked as general counsel to a leading Christian right law firm, and he litigated multiple cases seeking to restrict LGBTQ rights — including a case where he represented a school district seeking to prohibit a trans student from using the bathroom that aligns with his gender identity.
As a judge, Duncan authored a 2020 opinion where, after a transgender litigant requested that Duncan’s court refer to her using her proper pronouns, Duncan explained, at length, why he refuses to do so. Among other things, Duncan warned that, if he honored this litigant’s request, then he might also have to refer to some hypothetical future litigant using a more non-traditional pronoun. He even included a chart.
Duncan appears to have arrived on Stanford’s campus spoiling for a fight. One source told legal journalist David Lat that Duncan “walked into the law school filming protestors on his phone, looking more like a YouTuber storming the Capitol, than a federal judge coming to speak.” When students started to protest Duncan, “he started heckling back.”
Moreover, a brief video clip of the event shows Duncan berating law students who asked him to explain his opinion misgendering a litigant during the Q&A portion of the Stanford event.
Look, if you think Kyle Duncan is the "adult" in this exchange with a Stanford Law student, let alone a guy sincerely trying to have a civil dialogue with people with whom he disagrees, and definitely not trying to just get blurbed on Fox News primteime, ♂️ pic.twitter.com/ti5mMjMnYc— Jay Willis (@jaywillis) March 12, 2023
That said, there’s little doubt that many Stanford students rudely confronted this singularly rude judge. According to Lat, protesters started to boo and heckle Duncan as soon as he took the podium.
But what does any of this have to do with the B.P.J. case? The answer is that, if you tried to engineer a controversy in a lab with the goal of outraging a Court dominated by Federalist Society stalwarts, you would come up with something like this confrontation.
The Federalist Society is the linchpin of the conservative legal movement — a professional society where right-wing lawyers and judges can share ideas, stew in common grievances, and work to promote each others’ careers. It played an enormous role in shaping former President Donald Trump’s judicial appointments, including his Supreme Court justices.
The five most conservative members of the Supreme Court are all regular speakers at Federalist Society events, including at a banquet the Federalist Society hosts every year as part of its annual lawyer’s convention. Last fall, four justices attended that banquet — even though two of them weren’t even on the speakers’ list.
Yet, while the Federalist Society is arguably the most powerful political organization in the United States, the organization’s gatherings frequently dwell on the insecurities of its members. The society’s most recent conference devoted all four of its plenary sessions to complaints that members of the Federalist Society often feel unwelcome within their own profession — and especially by law schools.
“Something momentous is happening” on law school campuses, one speaker told the society at a panel focused on “The Mission of Law Schools,” claiming that these schools have lost their commitment to “open inquiry based on argument and evidence” and are shunning conservative voices.
So, when a truncated video of the Stanford event featuring Judge Duncan was posted online Friday by conservative activist Ed Whelan, it’s easy to see how that video must have validated many Federalist Society members’ darkest fears.
Here's video of Stanford DEI dean Steinbach's remarks slamming Judge Duncan and setting forth university policy on free speech while calling its soundness into question and stating that it might need to be reconsidered. /8https://t.co/PrfovwmMYj— Ed Whelan (@EdWhelanEPPC) March 10, 2023
That video, which doesn’t actually depict Duncan’s remarks, shows Stanford associate dean Tirien Steinbach addressing the audience at Duncan’s event after Duncan requested that a law school administrator intervene to quiet the protesting students.
In her remarks to the protesters, Steinbach states the university’s position that Duncan should be allowed to deliver his remarks, telling Duncan that “it is my job to say you are invited into this space,” and she encourages students who are offended by Duncan to leave the room, telling them that “you do not need to stay here if this is not where you want to be.”
But Steinbach also spends at least as much time trying to explain to Duncan why much of her community finds his presence hurtful. And she also implied that whatever benefit the Federalist Society hoped to gain from inviting Duncan to speak was not worth the divisions his presence created on campus, twice asking whether “the juice [is] worth the squeeze.”
It is easy to see, in other words, why this incident appeared to confirm many Federalist Society members’ deepest fears. A representative of one of the nation’s leading law schools seemed to be telling a prominent member of the Federalist Society — a sitting federal judge! — that his ideas will only be begrudgingly tolerated on Stanford’s campus.
Notably, the university has since disavowed Steinbach’s remarks. In an apology letter to Duncan signed by the university’s president and the law school’s dean, the two senior administrators tell Duncan that “staff members ... intervened in inappropriate ways that are not aligned with the university’s commitment to free speech.”
Even so, it’s doubtful this apology will mollify Federalist Society members who have spent years listening to warnings at Federalist Society events that gains for progressive causes, like LGBTQ rights, will come at the expense of social conservatives being excluded from institutions like universities.
If that resentment and fear percolates up to the Court’s justices as they consider whether to rule in B.P.J. immediately, that could be bad news.
We should all hope that the nine justices prove more capable than Duncan of separating their personal feelings from their role as jurists. And we should certainly hope that they won’t draw grand conclusions about how to interpret the Constitution from the rude behavior of some university students. But judges are people. And they are as capable of being influenced by the outrage they hear from people in their social and professional circles as anyone else.
All of which is a long way of saying that supporters of transgender rights should hope that the Supreme Court decides to wait for a little while before it decides the B.P.J. case. That won’t guarantee a good outcome for trans people, but such an important case should be decided with full briefing and oral argument. And it should be decided with months of deliberation, not mere days.