hi it's apparently important to note that this is a decision on the appeal of a district court ruling on a preliminary injunction, not the 9th ruling on the underlying case. erin's article omits this crucial fact, as have the posts i've seen so far.
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i still haven't gone all the way through it yet. i saw it being shared around, freaked out and rushed to read it (one thing erin IS always great at is linking primary sources), saw it was about an appeal of a PI ruling, then sighed and got this post up instead :(
i do believe her that the reasoning awful for us but i wish the headline everybody is going to read was accurate. there's enough to be max mad/scared about already without stuff like this. i'll get through it tonight
Honestly the reasoning is a disaster for us. Granted a facial challenge as opposed to an as applied wasn't great, but I read the decision and I don't think Erin is overreacting. I genuinely think it IS that bad. I'm sorry.
It tries to, certainly. In the short term the practical impact is the law takes effect. In the medium term, what scares me is (a) the casual way the Ninth Circuit just misgendered us in the opinion, and (b) the road map the court laid out for disregarding the impact these laws have on trans kids.
Now the Ninth Circuit can't *overrule* Bostock. But it is trying to limit its scope, and that's really worrying coming from what is supposed to be the most liberal court in the country.
Sure procedurally that’s accurate and it does mean that there will be another bite at the apple when the merits case gets before the court, but this is a serious blow and the reasoning in this opinion are both alarming and a strong signal of where the ultimate outcome will end up.
oh yeah, it was like a nine or ten post discussion, and I can easily see a couple of those posts getting quote-posted out of context into a whole dooming thing
I am mostly worried about how this decision throws a wrench in the ABA's "this is the easiest legal call you could possibly make" advocacy
Bostock is dripping with Gorsuch's frustration at being locked in a situation of giving the full effect to the text of a statute that does something he doesn't agree with, which is "prohibiting discrimination on the basis of sex"
this muddies the water and gives cover for Roberts if he wants it
not in direct effect, but rather because it gives him more room to argue that there is any kind of reasonable legal argument to be made here that does not rely on special pleading of "well of course you can discriminate against trans people, that's just common sense" to solve the tautology problem
the tautology problem being that discriminating against trans people is inherently about sex, which is why it's absolutely farcical to me that these cases are being heard as relates to "animus" instead of intermediate scrutiny as precedent requires for sex discrimination
i wish i could see an analysis of this decision without any exaggeration and in a way that the layman could understand. not asking that of op though, just stating this in general
Yea, I'm like crossing my fingers they'll be like, "Ok actually we acually listened to the lawyers argue and it turns out forcing trans kids to use a separate bathroom does, in fact, cause harm." But ugh, what are the odds of that?
Frankly it probably depends, as does everything right now, on how Skrmetti v. US goes, which while more likely than not to go in the transphobes and fascists’ favor, still has a decent chance of going our way
Apparently that decision is probably coming relatively soon?
Not sure how much Skrmetti matters here. If it goes our way, it will be a narrow ruling where Gorsuch and Barrett say that gender-affirming care restrictions are sex discrimination and need to be considered under heightened scrutiny. This is already being considered under heightened scrutiny.
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but yeah, there is a difference between losing on a preliminary injunction and losing on the merits
a preliminary injunction is usually hard to get; they have been racking up because of the more-obviously-illegal acts going on
https://web-cdn.bsky.app/profile/erininthemorning.com/post/3lktri3mdzc2r
I am mostly worried about how this decision throws a wrench in the ABA's "this is the easiest legal call you could possibly make" advocacy
this muddies the water and gives cover for Roberts if he wants it
Apparently that decision is probably coming relatively soon?
The chance of whether or not something like this will be able to be appealed at all is still in the balance, however