Jessica Clarke

Honored to find out that I am on this list of top-cited legal scholars again this year: papers.ssrn.com/sol3/papers..... Lots of others on this list whose work I deeply admire, including @jessicaclarke.bsky.social @miriamseifter.bsky.social @jdmortenson.bsky.social and many others! Congrats, all!

A Law School Dean Signed a Brief Defending Trans Rights. She Lost Her Job Because of It The revocation of Emily Suski’s job offer at the University of Arkansas sends a chilling message to law professors everywhere.

I wrote on the shameful situation re: the recession of a deanship to Emily Suski at the University of Arkansas Law. What was the reason? Prof. Suski signed an amicus brief supporting trans rights. The Arkansas legislators admitted that was it! Horrible outcome. ballsandstrikes.org/legal-cultur...

US Supreme Court's next transgender rights battle could affect more than sports A Supreme Court ruling upholding some state laws could determine the validity of an array of laws and policies that limit the rights of transgender people, legal experts say.

I spoke with Reuters about the transgender rights cases argued in the Supreme Court today. www.reuters.com/sports/us-su...

Watch my friend @mary-anne-case.bsky.social take on conservatives on their own terms in this debate over whether parents have a constitutional right to insist that schools misgender their children. fedsoc.org/conferences/...

California Supreme Court upholds misgendering law The decision, a reversal of a lower court's ruling, focuses on a law regulating the conduct of staff at certain health care facilities.

I'm honored that Chief Justice Guerrero of the California Supreme Court found my article helpful to this case. www.courthousenews.com/california-s...

The reason for this recommendation is that court centered strategies run into reasoning like this piece of obtuse cruelty from the US Supreme Court

Failed Assignments — Rethinking Sex Designations on Birth Certificates | NEJM Sex designations on birth certificates offer no clinical utility, and they can be harmful for intersex and transgender people. Moving such designations below the line of demarcation wouldn’t compro...

Public health authorities should reconsider the form birth certificate and make information about sex at birth private health data. www.nejm.org/doi/full/10....

189. The Breezy Inequity of Trump v. Orr The Supreme Court's latest grant of emergency relief to the Trump administration illustrates in technicolor the direct (and ugly) consequences of the two different ways it keeps messing up "equity."

Even though it mustered only 356 words to justify putting Trump's spiteful anti-trans passport policy back into effect, #SCOTUS managed to show us two of the flawed analytical moves it keeps making *only* in Trump cases to provide cover for granting emergency relief.

My latest, via "One First":

Preach, @jessicaclarke.bsky.social : "contrary to the claims of its proponents, formalism in equality law fails to ensure predictable results, does not meaningfully constrain judicial decisionmaking, and detracts from judicial accountability."

papers.ssrn.com/sol3/papers....

I've posted a draft article on the Supreme Court's Skrmetti decision on SSRN. I argue that this harmful decision represents the worst sort of legal formalism, but does not predetermine the results in other transgender rights cases or eviscerate sex discrimination law. papers.ssrn.com/sol3/papers....

Oh dear. RIP to one of the great ones, as a scholar and as a person.

Devastating

YouTube video by ucirvinelaw UC Irvine Law's 15th Annual Supreme Court Term in Review

It was an honor to be part of the UCI Law Supreme Court term in review event with Mario Barnes, Courtney Cahill, Erwin Chemerinsky, and Mark Joseph Stern. @mjsdc.bsky.social youtu.be/Zj3T7ZAxjYM?...

Trump Joins a Global War on ‘Gender Ideology’

To understand this moment, we need more investigative journalism into the right's "war on gender ideology," so we can better understand what led to this wave of anti-transgender laws and their connection to anti-feminist and LGBTQ rights movements more broadly. www.nytimes.com/2025/02/08/m...

I think the frame of not obeying in advance is exactly the way to think about it. As with so many other things, the vector is going in a bad direction. But slowing it down makes a huge difference in protecting real people right now.

My heart is with those who have been harmed by the Skrmetti decision and those who have no faith in this Supreme Court. This thread is meant to provide support for those who would continue to fight despite Skrmetti and those who wish to resist demands to obey in advance.

And Skrmetti says nothing about disability discrimination claims, like the one that prevailed in Williams v. Kincaid (4th Circuit). (Thanks to @ezrayoung.bsky.social for pointing this one out). glad-org-wpom.nyc3.cdn.digitaloceanspaces.com/wp-content/u... 2/2

Two more important notes on Skrmetti's limits. It does not mean that legislatures can simply frame rules enforcing sex stereotypes at a higher level of generality, i.e., requiring men and women to do jobs "consistent with their sexes," to avoid heightened scrutiny. It's limited to health care. 1/2

Great explanation from @chasestrangio.bsky.social on the legal arguments that remain to challenge anti-transgender policies after Skrmetti. Do not obey in advance!

I don't agree. Skrmetti applies narrowly to classifications based on "treatments" and "medical uses" for purposes of treating gender dysphoria. It is very important to the majority that this law targeted medical treatments that "are uniquely bound up in sex." We do not need to read this broadly.

As a matter of formalistic logic, a sex classification is a sex classification, even if the law contains other classifications. But on p.5 of the opinion, the Court says the age limit is important to its holding, even though no party contested it. So it must be doing work. Let's take them seriously.

An important thread on today’s Skrmetti decision from my colleague, @jessicaclarke.bsky.social—one of the leading sex discrimination scholars in the country.

Thank you David. Please everyone--do not overread Skrmetti, and do not obey in advance!

More later as I continue to process this opinion. End.

More in the weeds: Skrmetti does not endorse the "circular" reasoning of the Sixth Circuit that in order to constitute a sex classification, a law must also constitute stereotyping, invidious discrimination, or unfair treatment. Justice Sotomayor explains this in her dissent: 12/x

State of Washington et al v. Trump et al, No. 2:2025cv00244 - Document 161 (W.D. Wash. 2025) State of Washington et al v. Trump et al, No. 2:2025cv00244 - Document 161 (W.D. Wash. 2025) case opinion from the Western District of Washington U.S. Federal District Court

Nor does Skrmetti change the fact that many of Trump’s executive actions against transgender people violate our separation of powers—only Congress has the power to legislate and appropriate funds under our Constitution. 11/x law.justia.com/cases/federa...

It was very important to the Court that Tennessee’s laws seemed to be motivated by interests in children’s health. But we know the Trump Administration’s actions are motivated by sex stereotyping and transphobia, because they usually say the quiet parts out loud. 10/x

Skrmetti only holds that Tennessee’s law does not classify based on sex. Other laws and executive actions may still be invalid if they are motivated by sex stereotyping or transphobia, under Arlington Heights and Romer v. Evans. 9/x

Skrmetti does not reverse federal cases holding that transgender people are a suspect class. Only three justices--Alito, Thomas, and Barrett—reached the question of whether trans people are a suspect class. The Roberts opinion does not reach it: 8/x