“The arc of the moral universe is long, but it bends toward justice.” Progressive like to cite this maxim because, in their view, the arc inevitably bends in one direction: to the left. Except when it doesn’t.
Over just six years, the American public’s perception of transgender rights has swung like a pendulum from the left to the right. Perhaps nothing illustrates this movement more clearly than six recent Supreme Court decisions recognizing that parents and governments may indeed preserve traditional understandings of gender.
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It’s a long way from 2020. Back then, the coronavirus pandemic was upending American life—masks were mandated, schools and churches were closed, “mostly peaceful protests” raged on, and DEI reigned. Not even the ostensibly conservative Supreme Court was spared from the Great Awokening.
In Bostock v. Clayton County, the Supreme Court found that the Civil Rights Act of 1964 prohibited discrimination based on sexual orientation. Such an interpretation would have surprised anyone alive in the 1960s, when the federal government routinely fired employees even suspected of being gay. But this aspect of the ruling wasn’t that controversial in 2020. Most Americans supported same-sex marriage and, outside of certain religious employers, few businesses had any reason to fire workers because of their sexual orientation.
But Bostock included a companion case that led to a far more sweeping ruling. A Michigan funeral home employed a biological male who later experienced gender dysphoria and decided to “live and work full-time as a woman,” including by wearing female attire. Concerned about how grieving families might react to a man dressed as a woman, the funeral home fired the employee. The Court’s majority, in an opinion by Neil Gorsuch, held that federal civil rights law prohibits terminations based on gender identity. Mourners, in effect, would have to get with the times.
The gender-identity aspect of Bostock immediately raised pressing legal questions. Did Title IX require schools to allow biological males to compete on female teams? Did the Constitution’s Equal Protection Clause bar bans on “gender-affirming” surgeries for minors? Did the law require religious hospitals to remove healthy reproductive organs to facilitate gender transitions?
In the wake of Bostock, the answer to these questions, and others, seemed to be yes. Society was expected to “affirm” gender identity, support adolescents seeking puberty blockers, and accommodate social transition. Parents faced pressure to accept their child’s transition; public schools were said to have duties to adopt gender-identity curricula, manage student transitions, and permit biological males to compete in female sports. Those who resisted risked being labeled bigots.
But then the “arc of the moral universe” began bending rightward. After Bostock, state legislatures across the country prohibited medical gender procedures for minors, even with parental consent. Sports fans objected to biologically male athletes like Lia Thomas winning against female athletes. Even some who accepted Bostock’s sexual-orientation holding grew uneasy with its implications for gender identity.
Perhaps the most effective political ad of the 2024 presidential election spoke to this issue: “Kamala is for they/them. President Trump is for you.” On Inauguration Day, President Trump signed an executive order declaring, “It is the policy of the United States to recognize two sexes, male and female.” Critics may have thought the order was mere symbolism, but Trump’s policy reflected the position around which public opinion had coalesced—that asserting biological truth does not constitute bigotry.
The Supreme Court soon adapted to this shift. Consider six rulings over the past year that all point in the same direction.
United States v. Shilling allowed the Department of Defense to discharge transgender service members.
United States v. Skrmetti held that states could prohibit medical gender treatments for minors.
Mahmoud v. Taylor ruled that parents have a religious-liberty right to opt their children out of learning about “LGBTQ-inclusive books.”
Trump v. Orr allowed the State Department to print passports that list only a person’s biological sex.
Mirabelli v. Bonta found that schools cannot secretly transition students to another gender without telling their parents.
Chiles v. Salazar held that Colorado could not prohibit therapists from counseling people to be comfortable with their biological sex.
Finally, in a seventh, still-pending case, West Virginia v. B.P.J., the Court will likely rule that colleges can exclude biological males from female sports.
These seven cases implicate different legal doctrines. Shilling involved the commander-in-chief’s power over the military. Skrmetti concerned the Equal Protection Clause of the Fourteenth Amendment. Mahmoud addressed the Free Exercise Clause of the First Amendment. Mirabelli dealt with the Due Process Clause of the Fourteenth Amendment. At issue in Orr was the government’s control over a travel document, while in Chiles it was the Free Speech Clause of the First Amendment. The matter in B.J.P. concerns Title IX, a federal educational law passed in 1972. Yet a common theme emerges in all seven cases: the Court has allowed (or likely soon will allow) parents and governments to enforce traditional understandings of gender.
These six (and likely seven) rulings would have been unthinkable in the immediate aftermath of Bostock. Indeed, the Supreme Court rejected a case identical to Chiles as recently as 2023. But times changed. Votes changed, too. Chief Justice John Roberts and Justice Neil Gorsuch, who joined the majority in Bostock, were also in the majority of the six recently decided cases and seem likely to do so as well in B.J.P.
Nor did all these cases involve a typical 6-3, conservative-liberal split. In Skrmetti, Justice Elena Kagan dissented but did not actually state that the Tennessee law was unconstitutional. (She would have reviewed the law with a more rigorous test than the majority did.) In Mirabelli, Justices Kagan and Ketanji Brown Jackson rejected the Supreme Court’s interim ruling on the emergency docket but offered no defense of California’s law. Indeed, Justice Kagan was surprisingly sympathetic to the claims of the parents. The vote in Chiles was 8-1, with Justices Kagan and Sonia Sotomayor writing separately to argue that Justice Jackson misunderstood Free Speech law. I suspect that the vote in B.J.P. could be 7-2, 8-1, or even 9-0.
Like pendulums, moral arcs can swing in both directions. At some point, restrictions on transgender rights may go too far. The goal should be an equilibrium that preserves the freedom to adhere to traditional understandings of biological sex.