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ESSAY
TRANS SEX EQUALITY RIGHTS AFTER DOBBS
MARC SPINDELMANt
On July 8, 2023, in L.W v. Skrmetti, the U.S. Court of Appeals for the
Sixth Circuit provisionally gave Tennessee the green light to start enforcing
its new ban on gender-affirming medical care for transgender youth.1 The
split decision on an emergency motion, written by Chief Judge Jeffrey Sutton,
broke from an emerging judicial consensus treating trans medical care bans
as constitutionally defective.2 Notably, the L. W. majority rejects the argument
t Isadore and Isa Topper Professor of Law at The Ohio State University Moritz College of Law.
© 2023 by Marc Spindelman. All rights reserved. Reprint requests should be sent to
mspindelman@gmail.com. Thanks to Matthew Birkhold, Courtney Cahill, Chris Geidner, Brookes
Hammock, Jessie Hill, Catharine MacKinnon, Solangel Maldonado, and Deb Tuerkheimer for very
helpful feedback on earlier drafts. Thanks also to Ryan Ackerman and Sophie Krueger for excellent
research assistance and to Matt Cooper for deft help with some sources.
1 L. W. ex rel. Williams v. Skrmetti, 73 F.4th 408, 412-13 (6th Cir. 2023); Tenn. Code Ann.
§ 68-33-101 (West 2023). The Sixth Circuit panel has since extended its positions in L. W in a ruling
on an emergency stay motion in another case, Doe t v. Thornbury, No. 23-5609, 2023 WL 4861984,
at *1-*2 (6th Cir. July 31, 2023), which has been joined with L. W on appeal. The extension of the
L. W ruling similarly greenlights Kentucky's ban on gender-affirming care. Ky. Rev. Stat. § 311.372(2)
(West 2023). The observations here are also pertinent to the Eleventh Circuit's recent decision
concerning Alabama's ban on gender-affirming care for trans youth in Eknes-Tucker v. Alabama, 2023
WL 5344981, at *14-17 (11th Cir. Aug. 21, 2023), including that decision's analysis of the trans sex
equality rights claims in the case.
2 L. W, 73 F.4th at 412-14, 421. For commentary noting the consensus and L. W's break from
it, see Mary Ziegler, The Surprising Second Life of the Supreme Court's Abortion Decision, CNN (July 12,
2023), https://www.cnn.com/2023/o7/12/opinions/tennessee-trans-law-sixth-circuit-abortion-
ziegler/index.html [https://perma.cc/8MZ6-6ELH]. Additional perspective is offered by Mary
Ziegler, Fresh Fallout from the Supreme Court's Dobbs Ruling Just Hit Trans People, SLATE (July 19,
2023), https://slate.com/news-and-politics/2023/o7/supreme-court-dobbs-ruling-trans-
backlash.html [https://perma.cc/QY8S-2A92]. For a recent key set of deep reflections on trans sex
equality in social theory and under law that strengthens the foundations of existing and future trans
sex equality rights, see Catharine A. MacKinnon, Exploring Transgender Law and Policy, SIGNS: J.
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