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Friday, June 06, 2025

What does Ames portend for Skrmetti?

Ames v. Ohio Dept. of Youth Services unanimously held (per Justice Jackson) that a member of a non-historically disadvantaged group need not make a heightened showing to prove an employment discrimination claim. Ilya Somin argues that the decision unanimously reaffirms that discrimination against LGBTQ+ people constitutes discrimination because of sex. Ames alleged she was discriminated against because she is a straight woman, passed over for jobs in favor of a gay man and a lesbian woman; she argued discrimination because of her sexual orientation, not because she is a woman. Nevertheless, all nine justices accepted that this was a claim for gender discrimination.

What does that mean for Skrmetti, challenging a state ban on gender-affirming care for minors. The lower court treated this as something other than gender discrimination and applied rational-basis review. At the time of the cert grant, I predicted the Court would find that intermediate scrutiny applies and would remand for the lower court to apply that. If Ilya is right that Ames reflects unanimous acceptance that sexual orientation discrimination is sex discrimination, it must apply both ways--to discrimination against LGBTQ+ people and to discrimination against non-LGBTQ+ people. And that must include trans people and the medical services they can obtain.

Posted by Howard Wasserman on June 6, 2025 at 12:47 PM in Constitutional thoughts, Howard Wasserman | Permalink

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