The Normative Mask
How the Supreme Court and the Federal Judiciary Built a Dual State for Trans Erasure
On May 6, 2025, the Supreme Court of the United States lifted a nationwide injunction blocking the Trump administration from discharging every openly transgender service member in the United States military.[1] The Court issued no opinion. It offered no reasoning. The order was unsigned. Hours later, Defense Secretary Pete Hegseth posted on social media: “No more dudes in dresses. We are done with that shit.”[2]
This is the sound of the prerogative state. Not argument. Not law. Just power, exercised without justification, sanctioned by the highest court in the country through tacit approval.
This is my attempt to describe the machinery that the Supreme Court of the United States and the broader federal judiciary has constructed across multiple terms, multiple dockets, and multiple procedural vehicles. This machinery was constructed specifically to enable the systematic elimination of transgender people from American public life. The project is not about sports. It is not about protecting children. It is not about medical uncertainty, medical evidence, or standards of care. It is about whether transgender people will be permitted to exist in society as themselves, and the federal courts have answered that question with increasing clarity: No.
The Dual State
Ernst Fraenkel’s The Dual State described a political structure in which two systems of governance operate simultaneously.[3] The normative state maintains the apparatus of law: courts function, statutes are interpreted, precedent is cited. It provides the regime with the appearance of legality and the vocabulary of neutral principle. The prerogative state operates alongside it, exercising arbitrary power unconstrained by legal norms—but it does so through, and under cover of, the normative state’s institutions.[4] The normative state does not restrain the prerogative state. It effectively launders it.
Fraenkel was writing about the nazi regime, and I am not drawing a direct equivalence. I am drawing a structural analogy. The Supreme Court’s treatment of transgender rights over the past eighteen months follows the dual-state pattern with a disturbing sense of fidelity. The Court has maintained, at every turn, the language and form of neutral legal reasoning—rational basis review, facial classification analysis, statutory interpretation, the party presentation principle. It has cited precedent. It has parsed text. It has performed the work of the normative state. And at every turn, these normative operations have produced outcomes that advance a single substantive project: the legal and social erasure of transgender people from American life. Healthcare denied. Military service prohibited. Identity documents revoked. Children forcibly outed to hostile parents. And the legal architecture that could challenge any of it—dismantled, piece by piece, through the very legal forms that are supposed to protect against arbitrary state action.
The dual-state framework clarifies what single-case analysis obscures. Examined individually, each decision has a doctrinal logic. Skrmetti is about the standard of review for medical regulations.[5] Anderson is about Medicaid coverage.[6] Shilling is about military deference. Orr is about passport administration.[7] Mirabelli is about parental rights.[8] B.P.J. is about Title IX and athletics.[9] Chiles is about professional speech.[10] Examined together, a different picture emerges. The Court is constructing an interlocking doctrinal architecture in which the state may: deny transgender people medical care and allow the state to coercively discourage transition; expel them from the military; force them to carry identity documents that contradict who they are; compel schools to expose their identities to potentially hostile families; and, if Chiles goes the way oral argument suggests, strip away state-level protections against conversion therapy. There is no domain of public life that this architecture leaves untouched. And at no point in this process has the Court acknowledged what it is doing. It is gaslighting of the highest order that the Court maintains the pretense that these cases are disconnected discrete issues that are not substantially related.
The Normative Machinery: How Neutral Principles Produce Targeted Results
The doctrinal engine of trans erasure runs on a single conceptual move, perfected in Skrmetti and now proliferating through the lower courts: the disaggregation of transgender identity from the regulations that target it. Under this framework, a law that denies coverage for gender-affirming care does not classify based on transgender status, it classifies based on medical diagnosis.[11] A law that bans treatments for gender dysphoria does not target transgender people, it targets a condition. A passport policy that forces transgender people to carry documents listing their sex assigned at birth does not discriminate, it merely attests to a historical fact.[12]
This is Fraenkel’s normative state at work. The reasoning is formally coherent. It has the shape of law. It processes inputs and produces outputs in recognizable doctrinal patterns. And it is a fiction.
Consider the analytical structure. In Geduldig v. Aiello, the Supreme Court held that excluding pregnancy from disability insurance did not constitute sex discrimination because the classification was between “pregnant women and nonpregnant persons.”[13] The fact that only women could become pregnant did not make the exclusion sex-based.[14] Skrmetti imported this logic wholesale into the transgender context: excluding treatments for gender dysphoria does not discriminate based on transgender status because the classification is between “those who seek treatment for the excluded diagnoses” and everyone else.[15] The fact that only transgender people experience gender dysphoria is, under this framework, legally irrelevant. I will be blunt, Geduldig was wrong the day it was decided. It is an inherently toxic precedent that has no place in our jurisprudence.
Now watch what the Fourth Circuit did with this tool in Anderson v. Crouch, decided on March 10, 2026. The panel took Skrmetti’s framework, which addressed a categorical legislative ban on medical treatments for minors, and extended it to a Medicaid coverage exclusion for adults. It then went further. In footnote 12, Judge Richardson constructed a taxonomy of covered versus uncovered conditions. Conditions involving “physical injury, disease, or congenital absence of genitalia” qualify for coverage. Gender dysphoria—characterized as producing only “psychosocial or emotional symptoms,” does not.[16] This is not about a coverage determination but rather an ontological claim about the nature of gender dysphoria, embedded in circuit precedent, available for citation in every future case touching transgender healthcare, bathroom access, identity documents, or employment benefits. The opinion classifies dysphoria as fundamentally psychological rather than physical, a characterization that contradicts the medical consensus but, more importantly, provides the conceptual foundation for treating every transgender claim as categorically different from claims involving “real” medical conditions.
And then there is the “appreciate their sex” language. In Skrmetti, the Court cited Tennessee’s legislative finding that the state had an interest in helping minors “appreciate their sex” and not “become disdainful of their sex.”[17] The Anderson panel generalized this into a freestanding rational basis for any state action: it is “not irrational for a legislature to encourage citizens ‘to appreciate their sex’ and not ‘become disdainful of their sex’ by refusing to fund experimental procedures that may have the opposite effect.”[18] Read that sentence again. Under this formulation, the state has a legitimate interest in preventing its citizens from rejecting their assigned sex. There is no limiting principle. A state interest in making people “appreciate their sex” can justify restrictions on identity documents. It can justify bathroom bans. It can justify dress code enforcement. It can justify conditioning public benefits on gender conformity. It can justify, in its most coercive application, making the very act of social transition a basis for state disapproval.
This is how the normative state builds infrastructure for the prerogative state. Every one of these doctrinal moves is framed in the language of neutrality: medical diagnosis, cost-benefit analysis, rational basis, historical fact. Every one of them produces a rule that can be deployed, in future cases, to deny transgender people access to another dimension of public life. The neutrality is the mechanism. The erasure is the product.
The Prerogative State: Procedural Manipulation and the Shadow Docket
If the normative state operates through doctrine, the prerogative state operates through procedure and the Supreme Court’s procedural behavior in transgender rights cases is not simply aggressive, it is systematically asymmetric in ways that cannot be explained by any meaningfully neutral legal principle.
The Shadow Docket as Weapon. The Court has resolved three major transgender rights disputes on its emergency docket: Shilling v. Trump (military ban, May 2025), Trump v. Orr (passport policy, November 2025), and Mirabelli v. Bonta (forced outing in schools, March 2026). In each case, the six conservative justices lifted lower court injunctions that protected transgender people, allowing discriminatory policies to take immediate effect. In each case, the Court acted without full briefing, without oral argument, and without the deliberative process that merits adjudication provides. In Shilling and Orr, the orders were unsigned and unexplained. In Orr, the decision was over Justice Jackson’s dissent observing that “[t]he Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”[19] In Mirabelli, the Court issued a more extensive per curiam opinion—but only because the procedural irregularity was so glaring that even Justice Barrett felt compelled to write separately to defend it.[20]
The procedural irregularity Justice Kagan identified in Mirabelli deserves emphasis. The Court had before it, on its merits docket, a case raising the identical legal question: Foote v. Ludlow School Committee, pending since November 2025, with eight consecutive relists.[21] The Court apparently could not muster four votes to grant cert in Foote. But six justices were willing to resolve the same issue on the shadow docket in Mirabelli, without full briefing or argument. As Kagan wrote: the Court “already knows what it thinks, and insists on getting everything over quickly.”[22] The shadow docket is not functioning as an emergency mechanism. It is functioning as a fast track for outcomes the conservative majority wants to reach without the transparency and accountability that merits review demands.
Selective Case Selection. The Court’s management of its merits docket is equally revealing. This term, the Court is hearing B.P.J. (transgender sports ban),[23] Little v. Hecox (same),[24] and Chiles (conversion therapy ban). All three cases were brought by plaintiffs or states seeking to restrict transgender rights. All three were selected by the Court in configurations favorable to anti-transgender outcomes. Chiles was taken in a pre-enforcement posture as the plaintiff has never actually counseled an LGBTQ youth, which mirrors the Court’s approach in 303 Creative v. Elenis, where it adjudicated a free speech challenge to an anti-discrimination law based on a hypothetical injury.[25] This pre-enforcement vehicle allows the Court to reach sweeping conclusions about the constitutional status of conversion therapy bans without a factual record of actual harm to actual children.
Meanwhile, the Court has not granted certiorari in a single case brought by transgender plaintiffs seeking protection. In Kadel/Anderson, where the Fourth Circuit had ruled for transgender Medicaid recipients, the Court vacated the victory and sent it back for the predictable reversal that arrived this week.[26] In Foote, where parents challenged a school’s transgender-affirming policy, the Court sat on the petition for months rather than granting cert, then resolved the same issue on the shadow docket in Mirabelli when a configuration favorable to anti-transgender parents arrived. The pattern is consistent: cases that would expand transgender rights are either denied, vacated and remanded, or left to languish; cases that would restrict transgender rights are granted, fast-tracked, or resolved on the shadow docket.
The Parental Rights Asymmetry. The Court’s treatment of parental rights claims completes the picture. In Skrmetti, the individual plaintiffs, parents of transgender minors, filed a separate certiorari petition raising a substantive due process claim: that Tennessee’s ban violated their fundamental right to direct their children’s medical care. The Court declined to grant certiorari on that question.[27] Days after deciding Skrmetti on the merits, the Court denied certiorari in L.W. v. Skrmetti and Doe 1 v. Commonwealth of Kentucky, the companion cases that would have presented the parental rights question directly.[28] No justice wrote a word. The message was unambiguous: when parents of transgender children invoke their constitutional right to make medical decisions on behalf of their children, the Court will not hear them. But when parents invoke parental rights against their transgender children—to override a child’s expressed gender identity, to compel schools to disclose a child’s identity regardless of the risk of abuse—the Court acts with urgency. In Mahmoud v. Taylor, the Court held that parents had a free exercise right to opt out of LGBTQ-inclusive curriculum.[29] In Mirabelli, the Court invoked both free exercise and substantive due process to require schools to disclose children’s gender identities to parents, on the shadow docket, without full briefing, while a merits vehicle sat untouched.[30] Parental rights, it turns out, are a constitutional sword only when wielded against transgender children. When wielded on their behalf, they do not exist.
The Animus Blind Spot. Perhaps the most telling procedural asymmetry is the Court’s treatment of government animus. The executive order underlying Orr described transgender identity as “false” and “corrosive” to American society.[31] The Defense Secretary publicly celebrated the military ban with language too vulgar and dehumanizing to warrant repetition. The administration has systematically used the machinery of federal government to target transgender people across every domain—healthcare, military service, identification, education, prison conditions, public accommodations. In any other equal protection context, this quantum of evidence would be dispositive. When the state announces, in the text of its own executive orders, that a class of people is “corrosive” to society, and then proceeds to exclude them from institution after institution, that is textbook animus under Romer v. Evans[32] and United States v. Windsor.[33]
But the Court has not engaged with the animus evidence in a single transgender case. In Shilling, it wrote nothing at all. In Orr, the majority characterized the passport policy as merely “attesting to a historical fact.” In Skrmetti, the Court found that the medical regulation framework provided “legitimate, nondiscriminatory reasons” sufficient to defeat any presumption of discriminatory intent—without addressing the broader political context in which these regulations were enacted.[34] The normative state provides the vocabulary of neutral principle. The prerogative state provides the motivation. And the Court has built a doctrinal architecture in which the motivation is always invisible, because the vocabulary is always available.
The Speech Asymmetry. The pattern extends beyond the Supreme Court and into the circuit courts, where the First Amendment itself has become a one-directional instrument. In Meriwether v. Hartop, the Sixth Circuit held that a public university professor had a First Amendment right to refuse to use a transgender student’s pronouns, reasoning that titles and pronouns “carry a message” and the state cannot compel a speaker to affirm views about gender identity that he rejects.[35] In November 2025, the en banc Sixth Circuit extended this principle to K–12 students in Parents Defending Education v. Olentangy Local School District, holding 10–7 that a school district’s policy prohibiting the deliberate and repeated misgendering of transgender classmates constituted unconstitutional viewpoint discrimination and compelled speech.[36] Under the Sixth Circuit’s framework, misgendering a transgender person is constitutionally protected expression on a matter of public concern.
Now consider the mirror image. In Wood v. Florida Department of Education, decided in July 2025, a split Eleventh Circuit panel held that a transgender high school teacher had no First Amendment right to refer to herself by her own pronouns and the honorific “Ms.” in her classroom.[37] The majority reasoned that because Wood was addressing students during class hours, she was acting as a government employee, and her self-referential use of pronouns constituted regulable government speech. Florida’s statute, which expressly declares it “false to associate to a person a pronoun that does not correspond to such person’s sex,” could therefore be enforced to compel her to misgender herself. In dissent, Judge Jordan identified the contradiction directly: the emerging caselaw holds that teachers have a free speech right to misgender their transgender students, but transgender teachers have no free speech right to gender themselves correctly.[38]
The doctrinal incoherence is the point. In one circuit, pronoun use is expressive speech on a matter of public concern that the state cannot regulate; in the other, it is government speech that the state can compel. When the speaker is a cisgender person asserting that biological sex is immutable, the First Amendment protects the assertion. When the speaker is a transgender person asserting her own identity, the First Amendment does not apply. The only consistent principal among these decisions is that the outcomes harm transgender people.
The Architecture of Erasure: What the Cases Build Together
Taken together, here is what the Supreme Court and the broader federal judiciary has authorized, enabled, or is poised to do by the end of this year:
Healthcare. States may categorically exclude gender-affirming medical treatment from Medicaid coverage for adults and may ban such treatments entirely for trans adults and minors.[39] These holdings survive rational basis review on the basis of “cost” and “medical uncertainty”—rationales so deferential that they can justify virtually any exclusion. The characterization of gender-affirming care as “experimental,” for surgeries with decades of clinical practice, is now embedded in circuit precedent.[40] The Eleventh Circuit has already extended this framework to employer-provided insurance under Title VII.[41]
Military Service. The administration may discharge every openly transgender service member and prohibit future enlistment. The ban’s justification that gender dysphoria threatens “military effectiveness and lethality” was contradicted by the Defense Department’s own prior studies and by four years of open service under the Biden administration. No matter. The Court lifted the injunction without comment.
Identity Documents. The administration may force transgender, nonbinary, and intersex people to carry passports listing their sex assigned at birth, exposing them to harassment, violence, and invasive searches every time they travel. The majority’s framing that this is simply “attesting to a historical fact” erases the lived reality of what it means to be forcibly outed by your own government-issued identification.[42]
Education. Schools may be required to disclose students’ gender identity to parents, regardless of the student’s wishes and regardless of the risk of abuse, rejection, or homelessness.[43] The B.P.J. and Little v. Hecox decisions, expected by June, are likely to uphold categorical bans on transgender students participating in school sports.[44] The reasoning in these opinions will almost certainly reach beyond athletics. Any holding that “sex” in Title IX means only biological sex assigned at birth provides the doctrinal foundation for bathroom bans, locker room exclusions, and dress code enforcement in every federally funded school in the country. The Court’s citation of Mahmoud v. Taylor in Mirabelli further signals that parental religious objections to a child’s gender identity may receive constitutional protection as a matter of free exercise.[45]
Conversion Therapy. If the Court rules for the petitioner in Chiles v. Salazar, it will strike down conversion therapy bans in over twenty states by recharacterizing a regulated medical practice as protected speech. This would be the final piece: having denied transgender people healthcare, military service, accurate identification, school participation, and privacy, the state would then be constitutionally prohibited from banning the practice of trying to make them stop being transgender in the first place. An additional cruelty is that many bans on gender affirming care include prohibitions on referrals to care outside of the state. Increasingly, states such as Texas are interpreting their bans to include a complete prohibition on affirming trans youth at all by medical professionals, which in effect creates a viewpoint discriminatory regime over trans healthcare.
Read that inventory again. There is no dimension of transgender public existence that remains untouched. The architecture is comprehensive, and it was built in eighteen months.
What the Dual State Demands
The dual-state framework may be a helpful analytical tool in this context but it is also a diagnosis, and the diagnosis has implications for strategy.
First, it means that further appeals to the normative state—to the Court’s own doctrinal logic, to its claimed neutrality—are unlikely to produce different results. The normative state is functioning exactly as designed. The legal architecture that produces these outcomes is internally coherent; it simply begins from premises that: transgender identity is not a classification, gender dysphoria is psychological, and “appreciating one’s sex” is a legitimate state interest. The conclusion is already formalized. Filing better briefs or formulating better arguments will not fix this. The doctrinal structure is the problem, and this Court built it deliberately.
Second, it means that the critical terrain is now outside the federal courts. State constitutions. State legislatures. State courts interpreting state equal protection clauses that are not bound by Skrmetti. This is where reproductive rights migrated after Dobbs,[46] and it is where transgender rights must migrate now. The geography of protection will be uneven and unjust, it will leave the most vulnerable people, in the most hostile states, with the least protection. That is the reality. Building the state-level infrastructure to protect who can be protected, while preserving the doctrinal arguments for a future federal judiciary, is the work of a generation.
Third, it means that the fight over language matters as much as the fight over outcomes. The Anderson opinion’s characterization of gender dysphoria as “psychosocial.” The “appreciate their sex” formulation. The Orr majority’s “historical fact.” These are ontological claims about who transgender people are, laundered through judicial authority. Every one of them will be cited in future cases to justify restrictions that the authors of these opinions may not have intended or may have. The dicta is the doctrine. Getting counter-language on the record, through dissents, through en banc petitions, through state court opinions, is not symbolic. It is how you build the materials for eventual reconstruction in a more favorable judiciary.
Finally, it means we must call this what it is. This is not a series of discrete policy disagreements about sports eligibility or insurance coverage or military readiness. It is a coordinated campaign, spanning the executive branch, state legislatures, and the federal judiciary, to make transgender existence in public life functionally impossible. The Supreme Court has not failed to stop it, rather, it has deliberately enabled it. Through its normative machinery—its doctrinal innovations, its procedural manipulations, its selective docketing, its strategic silences—it has enabled it, accelerated it, and provided it with the imprimatur of constitutional legitimacy.
The normative mask makes this easier to ignore. The opinions are measured. The language is technical. The conclusions are presented as following inevitably from precedent. This is the function of the normative state: to make the exercise of arbitrary power look like law. To make erasure look like interpretation. To make a campaign of social elimination look like a series of reasoned legal doctrine and policy choices.
It is none of those things. And we should stop pretending that it is.
[1] Shilling v. Trump, No. 24A___ (U.S. May 6, 2025) (per curiam) (lifting nationwide preliminary injunction blocking enforcement of transgender military service ban).
[2] Pete Hegseth (@PeteHegseth), X (May 6, 2025). Earlier that day, Hegseth stated in a Defense Department video: “No more dudes in dresses. We are done with that shit.”
[3] Ernst Fraenkel, The Dual State: A Contribution to the Theory of Dictatorship (E.A. Shils trans., Oxford Univ. Press 1941).
[4] Fraenkel, supra note 3, at 3 (“By the Prerogative State we mean that governmental system which exercises unlimited arbitrariness and violence unchecked by any legal guarantees, and by the Normative State an administrative body endowed with elaborate powers for safeguarding the legal order as expressed in statutes, decisions, and the activities of the administrative agencies.”).
[5] United States v. Skrmetti, 605 U.S. 495 (2025).
[6] Anderson v. Crouch, No. 22-1927, slip op. (4th Cir. Mar. 10, 2026) (Richardson, J.).
[7] Trump v. Orr, 607 U.S. ___ (2025).
[8] Mirabelli v. Bonta, No. 25A810 (U.S. Mar. 2, 2026) (per curiam).
[9] West Virginia v. B.P.J., No. 24-43 (argued Jan. 13, 2026).
[10] Chiles v. Salazar, No. 24-539 (argued Oct. 7, 2025).
[11] Skrmetti, 605 U.S. at 518–19.
[12] Trump v. Orr, 607 U.S. ___, slip op. at 2 (2025) (“Displaying passport holders’ sex at birth no more offends equal protection principles than displaying their country of birth—in both cases, the Government is merely attesting to a historical fact without subjecting anyone to differential treatment.”).
[13] Geduldig v. Aiello, 417 U.S. 484 (1974).
[14] Id. at 496 n.20.
[15] Skrmetti, 605 U.S. at 518–19.
[16] Anderson, slip op. at 21 n.12 (distinguishing between conditions involving “physical injury, disease, or congenital absence of genitalia” and those with only “psychosocial or emotional symptoms”).
[17] Skrmetti, 605 U.S. at 516–17.
[18] Id. at 27 (quoting Skrmetti, 605 U.S. at 516–17).
[19] Trump v. Orr, 607 U.S. ___, slip op. at 1 (Jackson, J., dissenting, joined by Sotomayor and Kagan, JJ.) (“The Court has once again paved the way for the immediate infliction of injury without adequate (or, really, any) justification.”).
[20] Mirabelli, No. 25A810, slip op. at 1 (Barrett, J., concurring, joined by Roberts, C.J., and Kavanaugh, J.).
[21] Foote v. Ludlow Sch. Comm., 128 F.4th 336 (1st Cir. 2025) (per curiam), cert. pending, No. 25-77.
[22] Mirabelli, No. 25A810, slip op. at 2 (Kagan, J., dissenting).
[23] West Virginia v. B.P.J., No. 24-43 (argued Jan. 13, 2026).
[24] Little v. Hecox, No. 24-79 (argued Jan. 13, 2026).
[25] 303 Creative LLC v. Elenis, 600 U.S. 570 (2023).
[26] Kadel v. Folwell, 100 F.4th 122 (4th Cir. 2024) (en banc), vacated, 145 S. Ct. 2838 (2025); Crouch v. Anderson, 145 S. Ct. 2835 (2025).
[27] The individual plaintiffs in L.W. v. Skrmetti filed a separate petition for certiorari raising, inter alia, a substantive due process claim that SB1 violated their fundamental right as parents to direct their children’s medical care. The Court granted the government’s petition on the equal protection question only. See United States v. Skrmetti, No. 23-477, cert. granted, 144 S. Ct. 2672 (2024); L.W. v. Skrmetti, No. 23-466, cert. denied (2024).
[28] L.W. v. Skrmetti, No. 23-466, cert. denied (June 20, 2025); Doe 1 v. Commonwealth of Kentucky ex rel. Cameron, No. 23-492, cert. denied (June 20, 2025). No justice noted a dissent from either denial. On the same day, the Court GVR’d four cases in which appellate courts had ruled for transgender plaintiffs. See, e.g., Folwell v. Kadel, 145 S. Ct. 2838 (2025); Crouch v. Anderson, 145 S. Ct. 2835 (2025). The asymmetry is structural: victories for transgender plaintiffs were vacated; losses were allowed to stand.
[29] Mahmoud v. Taylor, 604 U.S. ___ (2025).
[30] Mirabelli v. Bonta, No. 25A810 (U.S. Mar. 2, 2026) (per curiam).
[31] Exec. Order No. 14,168, 90 Fed. Reg. 8,615 (Jan. 20, 2025) (characterizing transgender identity as “false” and “corrosive” to American society).
[32] Romer v. Evans, 517 U.S. 620 (1996).
[33] United States v. Windsor, 570 U.S. 744 (2013).
[34] Skrmetti, 605 U.S. at 522–24.
[35] Meriwether v. Hartop, 992 F.3d 492, 508–10 (6th Cir. 2021) (holding that a public university professor’s refusal to use a transgender student’s preferred pronouns constituted protected speech on a matter of public concern under the Pickering-Connick framework).
[36] Parents Defending Educ. v. Olentangy Loc. Sch. Dist. Bd. of Educ., No. 23-3966 (6th Cir. Nov. 6, 2025) (en banc) (10–7 decision holding that a school district’s policy prohibiting intentional misgendering of transgender students likely violated the First Amendment as viewpoint discrimination and compelled speech).
[37] Wood v. Fla. Dep’t of Educ., No. 24-12800 (11th Cir. July 2, 2025) (2–1 decision) (holding that a transgender teacher’s use of her preferred honorific “Ms.” and pronouns “she/her” in the classroom constituted government-employee speech regulable under Garcetti v. Ceballos, 547 U.S. 410 (2006), and was not protected by the First Amendment).
[38] Id. (Jordan, J., dissenting) (“The statute at issue here, § 1000.071(3), has nothing to do with curriculum and everything to do with Florida attempting to silence those with whom it disagrees on the matter of transgender identity and status.”). Judge Jordan expressly noted the contradiction with the Sixth Circuit’s Meriwether line of cases, observing that the emerging framework protects speech rights only when exercised against transgender people, not by them.
[39] Anderson, slip op. at 24–26.
[40] Anderson, slip op. at 25–27 (characterizing gender-affirming surgeries as arguably “ineffective and dangerous” and “experimental” despite decades of clinical use); see also Skrmetti, 605 U.S. at 524 (“Recent developments only underscore the need for legislative flexibility in this area.”).
[41] Lange v. Houston County, 152 F.4th 1245, 1255 (11th Cir. 2025) (en banc) (holding that excluding transgender treatments from employer-provided insurance did not violate Title VII in light of Skrmetti).
[42] Trump v. Orr, 607 U.S. ___ (2025).
[43] See Mirabelli, No. 25A810, slip op. at 3 (per curiam); Opp’n to Application to Vacate at 12, Mirabelli v. Bonta, No. 25A810 (U.S. filed Jan. 22, 2026) (“The district court’s injunction would allow no exceptions, even for extreme cases where students or teachers reasonably fear that the student will suffer physical or mental abuse.”).
[44] Amy Howe, Supreme Court Appears Likely to Uphold Transgender Athlete Bans, SCOTUSblog (Jan. 13, 2026).
[45] Mahmoud v. Taylor, 604 U.S. ___ (2025).
[46] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).
