Jessica Clarke
@jessicaclarke.bsky.social
Chaired Professor at USC Gould School of Law
Research: www.ssrn.com/author=1325345
Research: www.ssrn.com/author=1325345
Pinned
Jessica Clarke
@jessicaclarke.bsky.social
· Aug 18
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....
I'm honored that Chief Justice Guerrero of the California Supreme Court found my article helpful to this case. www.courthousenews.com/california-s...
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.
www.courthousenews.com
November 10, 2025 at 3:44 PM
I'm honored that Chief Justice Guerrero of the California Supreme Court found my article helpful to this case. www.courthousenews.com/california-s...
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....
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...
www.nejm.org
November 7, 2025 at 4:42 PM
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....
Reposted by Jessica Clarke
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":
My latest, via "One First":
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."
www.stevevladeck.com
November 7, 2025 at 1:06 PM
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":
My latest, via "One First":
Reposted by Jessica Clarke
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....
papers.ssrn.com/sol3/papers....
Skrmetti's Shell Game
<p>In its landmark 2020 decision in <i>Bostock v. Clayton County</i>, the Supreme Court held that discrimination against transgender employees constitutes discr
papers.ssrn.com
October 15, 2025 at 1:19 AM
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....
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....
August 18, 2025 at 8:24 PM
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....
Reposted by Jessica Clarke
Oh dear. RIP to one of the great ones, as a scholar and as a person.
RIP Dick Fallon. A devastating loss professionally and personally.
July 14, 2025 at 5:16 PM
Oh dear. RIP to one of the great ones, as a scholar and as a person.
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?...
UC Irvine Law's 15th Annual Supreme Court Term in Review
YouTube video by ucirvinelaw
youtu.be
July 10, 2025 at 2:24 AM
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?...
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...
Trump Joins a Global War on ‘Gender Ideology’
www.nytimes.com
June 19, 2025 at 4:30 PM
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...
Reposted by Jessica Clarke
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.
June 19, 2025 at 1:45 PM
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.
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
June 19, 2025 at 2:23 AM
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!
OUT NOW - our episode on US v. Skrmetti, the case upholding TN’s ban on gender affirming care for minors.
With @chasestrangio.bsky.social
@profmmurray.bsky.social @kateshaw.bsky.social @leahlitman.bsky.social
crooked.com/podcast/scot...
With @chasestrangio.bsky.social
@profmmurray.bsky.social @kateshaw.bsky.social @leahlitman.bsky.social
crooked.com/podcast/scot...
June 19, 2025 at 1:55 AM
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.
Also, the TN law plainly discriminates by sex, as Sotomayor points out. This just provides a template set of magic words surrounding “gender dysphoria” that legislatures can now use to get a pass for their sex discrimination against trans people.
June 19, 2025 at 1:27 AM
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.
Appreciate the analysis, but can you explain how the overall ruling is limited by age? It reads to me as age not being a criteria which would warrant scrutiny on its own, which would then open the door to similarly configured adult care bans.
June 19, 2025 at 1:24 AM
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.
Reposted by Jessica Clarke
An important thread on today’s Skrmetti decision from my colleague, @jessicaclarke.bsky.social—one of the leading sex discrimination scholars in the country.
Today's Skrmetti opinion is devastating to transgender children and families who live in states with cruel laws barring gender affirming care. But it is very important to recognize this opinion does not give private entities, legislatures, or the President carte blanche to discriminate! 1/x
June 18, 2025 at 7:23 PM
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!
Important thread here about what Skrmetti does and doesn't do.
Today's Skrmetti opinion is devastating to transgender children and families who live in states with cruel laws barring gender affirming care. But it is very important to recognize this opinion does not give private entities, legislatures, or the President carte blanche to discriminate! 1/x
June 18, 2025 at 7:06 PM
Thank you David. Please everyone--do not overread Skrmetti, and do not obey in advance!
Today's Skrmetti opinion is devastating to transgender children and families who live in states with cruel laws barring gender affirming care. But it is very important to recognize this opinion does not give private entities, legislatures, or the President carte blanche to discriminate! 1/x
June 18, 2025 at 6:59 PM
Today's Skrmetti opinion is devastating to transgender children and families who live in states with cruel laws barring gender affirming care. But it is very important to recognize this opinion does not give private entities, legislatures, or the President carte blanche to discriminate! 1/x
I am so very sorry to everyone who is personally impacted by today's Skrmetti decision. It is both extremely damaging and limited in some important ways. I will have more to say when I finish processing.
June 18, 2025 at 3:40 PM
I am so very sorry to everyone who is personally impacted by today's Skrmetti decision. It is both extremely damaging and limited in some important ways. I will have more to say when I finish processing.
For context and critique of today's Skrmetti opinion, check out my article in the Chicago Law Review, Scrutinizing Sex. papers.ssrn.com/sol3/papers....
June 18, 2025 at 2:45 PM
For context and critique of today's Skrmetti opinion, check out my article in the Chicago Law Review, Scrutinizing Sex. papers.ssrn.com/sol3/papers....
Reposted by Jessica Clarke
"I have never seen a record where racial discrimination by the government is so palpable... Have we fallen so low? Have we no shame?" Judge Young (Reagan appointee) ruling in our favor against Trump research cuts.
Read more of the Judge's fiery language: www.ifyoucankeepit.org/p/breaking-n...
Read more of the Judge's fiery language: www.ifyoucankeepit.org/p/breaking-n...
NIH grant funding restored
Judge rules grant terminations on the basis of DEI and gender identity are discriminatory and illegal
www.ifyoucankeepit.org
June 16, 2025 at 9:27 PM
"I have never seen a record where racial discrimination by the government is so palpable... Have we fallen so low? Have we no shame?" Judge Young (Reagan appointee) ruling in our favor against Trump research cuts.
Read more of the Judge's fiery language: www.ifyoucankeepit.org/p/breaking-n...
Read more of the Judge's fiery language: www.ifyoucankeepit.org/p/breaking-n...
Reposted by Jessica Clarke
My piece on the havoc wrought by Trump's "Defending Women" executive order--it goes far beyond harming trans people.
www.newyorker.com/news/the-led...
www.newyorker.com/news/the-led...
Donald Trump’s War on Gender Is Also a War on Government
By forcing rigid definitions of sex across all federal agencies, Republicans are undermining the administrative state’s capacity to protect public health and safety.
www.newyorker.com
May 28, 2025 at 2:14 PM
My piece on the havoc wrought by Trump's "Defending Women" executive order--it goes far beyond harming trans people.
www.newyorker.com/news/the-led...
www.newyorker.com/news/the-led...
Good news from Montana--a state court has struck down a gender affirming care ban, calling the ban what it is: an ideological attack on transgender people. Many state constitutions offer more protection against gender discrimination than the federal one.
www.aclumontana.org/sites/defaul...
www.aclumontana.org/sites/defaul...
May 16, 2025 at 9:34 PM
Good news from Montana--a state court has struck down a gender affirming care ban, calling the ban what it is: an ideological attack on transgender people. Many state constitutions offer more protection against gender discrimination than the federal one.
www.aclumontana.org/sites/defaul...
www.aclumontana.org/sites/defaul...
Reposted by Jessica Clarke
COMPARE: the results of fighting back to the results of not fighting back
April 10, 2025 at 11:11 PM
COMPARE: the results of fighting back to the results of not fighting back
Reposted by Jessica Clarke
Working with an interdisciplinary team, we have developed a website to communicate how the White House's proposed cuts to health research would cause losses of $16B and 68,500 jobs.
Find out how your community may be impacted.
Explore more at SCIMaP: scienceimpacts.org
a 🧵
Find out how your community may be impacted.
Explore more at SCIMaP: scienceimpacts.org
a 🧵
March 28, 2025 at 2:15 AM
Working with an interdisciplinary team, we have developed a website to communicate how the White House's proposed cuts to health research would cause losses of $16B and 68,500 jobs.
Find out how your community may be impacted.
Explore more at SCIMaP: scienceimpacts.org
a 🧵
Find out how your community may be impacted.
Explore more at SCIMaP: scienceimpacts.org
a 🧵