This year, the Bureau of Prison determined that "sex-trait-modification surgeries, hormone interventions in general, and social accommodations could no longer be justified as treatment for gender dysphoria." The lower court enjoined this policy, and the Solicitor General sought an emergency stay. Today the Supreme Court denied a stay in Trump v. Kingdom by a 7-2 vote. Justices Thomas and Alito noted they would have granted the application, though there was no written opinion.
I have some thoughts.
First, just yesterday Justice Kagan noted that the Trump appointees rule against President Trump as proof that they are not hacks. And she surely knew this case would come down as further proof of this point. Kagan's point seems to be that ruling against the President that appoints you makes you a fair justice. That premise is only true if in fact that law does not support the appointing President's policy. If a Justice simply rules against the President who appoints him for the sake of optics, then the Justice is no longer a judge.
Justice Alito made this point well in his new book, summarized in the Wall Street Journal.
Insecure originalists may worry that they are subconsciously engaging in "judicial activism" in the service of their own policy preferences. As a result, they may welcome occasions when their originalist analysis leads to results they dislike. They experience a brief catharsis, a release of their anxiety about succumbing to temptation.
Twenty-first-century originalists should shed this insecure mindset.
I wonder if Justice Alito thinks that Justice Scalia's constant praise of his vote in Texas v. Johnson was evidence of this "catharsis." Justice Kavanaugh used to praise the Nixon appointees who ruled against Nixon in the Watergate Tapes case. That premise reinforces the wrong image. I've come to believe that United States v. Nixon was a travesty, and the Justices who joined that were caught up in the Watergate swamp fever. The decision has not held up well over the past five decades.
Let's stop praising how often the Trump appointees rule against Trump. The more useful metric, in my view, is when the Court's two most conservative members (Thomas and Alito) are alone in dissent. I updated my wall of receipts in July 2026 as a recent accounting.
Second, how do we reconcile Mahmoud, B.P.J., and Skrmetti on the one hand and Bostock and Kingdom on the other? For sure, all of these cases presented different legal issues. Mahmoud was a Free Exercise challenge, Skrmetti presented an Equal Protection issue, B.P.J. was about Title IX, Bostock was an interpretation of Title VII, and Kingdom was an APA challenge on the interim orders docket. Yet all of these cases were really about transgender rights. Back in April I wrote that the transgender tide was turning. Was I wrong? Why did all of the recent cases turn out one way but Kingdom turns out the other?
Well, the Court is certainly concerned about transitioning children. They upheld bans on gender transition surgeries in Skrmetti. They required opt-outs from transgender-related indoctrination in Maryland public schools. (Had the story books been only about gay marriage, I don't know that the case would have come out the same way.) The Justices allowed the exclusion of biologically male athletes from female sports. I could add to that list Mirabelli v. Bonta, which prohibited schools from secretly transitioning children.
It's possible that Justice Gorsuch simply saw the light after Bostock, but maybe there is another explanation: he cares more about children than he cares about transgender rights. So his equities tilted to the right. But in a case where adults seek this treatment, Gorsuch cut the other way. Moreover, when those consenting adults are prisoners, Justice Gorsuch's equities are far clearer. For a libertarian, how could the carceral state deny this treatment to incarcerated persons who can't go elsewhere to get it?
Third, I'm struggling with Justice Kavanaugh's position here. He had a free vote, as the split was 7-2. He could have at least written a separate opinion explaining why relief was not appropriate here, but when the case returns on the merits, the outcome may be different. He does that sort of thing all the time in far less controversial cases. But here, we only have the sound of silence. I think he is signaling the government loses on the merits here. Maybe he suspects Trump will be out of office by the time this case returns to the Court, and the policy will be abandoned.
Fourth, I'm sure Justice Barrett figured out some procedural reason why the federal government must remove healthy reproductive organs from prisoners. That is, unless she agrees with the Respondent's arguments that BOP's position is "pretextual and [was] reverse-engineered to implement" President Trump's order. So we're back to pretext, and trying to divine the President's real motivations. Trump v. Cook established that Trump does not get the presumption of regularity. Barrett dissented in that case, through she may not disagree with the broader premise.
Fifth, the application was filed on September 28, briefing concluded on October 9, and the order was issued on October 21. What took so long if this was a straight-up denial without any writings? I suspect that Justices Alito and Thomas were hopeful they could scrounge more votes but could not. Maybe they even circulated a dissent but withdrew it. Something behind the scenes happened here. If only we knew what happened? Thankfully reporters at CNN and the New York Times are no longer able to otbain leaks. The best they can do is ask KBJ's friends for comments and interview the Chief's neighbors in Maine.
The post Skrmetti, Mahmoud, and B.P.J, v. Bostock and Kingdom appeared first on Reason Magazine.