abstract. Winning Through Losing, which I published almost fifteen years ago, focused on how social-movement actors can leverage litigation loss for productive internal and external effects. At the time, LGBTQ-movement lawyers, who provided some of the primary examples of winning through losing, were approaching litigation with caution and trying to avoid losses in court. Despite this careful orientation toward litigation, winning through losing can at times be invoked to insulate litigation decisions from critique. If even losing litigation can be used in ways to advance a social movement’s aims, then the costs of litigating may appear minimal. On this view, there is little at stake in decisions regarding whether and how to litigate.

This invocation of Winning Through Losing is misguided. Examining contemporary LGBTQ- movement litigation challenging bans on gender-affirming care for minors, this Essay shows how the concept of winning through losing only makes sense within a less juriscentric and more multidimensional approach to law and social change. Whereas much of the original article focused on the role of advocates after litigation loss, this Essay explores the circumstances surrounding United States v. Skrmetti to shed light on how advocates should think about the prospect of losing before litigating. The analysis of Skrmetti reveals key features of the legal and political context that shape advocates’ ex ante evaluation of the effects of a potential litigation loss. These include the concrete legal consequences of a negative decision, the opportunities for effective advocacy in nonjudicial arenas in the wake of a legal defeat, and the meanings that a loss in court could create both within the movement and outside of it. Advocates must consider these features in deciding whether to litigate and, if litigation is pursued, how to litigate. Even though the decision of whether to litigate is not completely within movement advocates’ control, judgments about how to litigate can still be interrogated. Decisions about where to sue, what claims to assert, and whether to appeal adverse judgments can expand or limit a lawsuit’s reach—win or lose.

Introduction

I published Winning Through Losing almost fifteen years ago, in 2011.1 At the time, LGBTQ-movement advocates were fighting for marriage equality. They were litigating in state courts, making state-law claims to both marital and nonmarital rights and recognition for same-sex couples.2 They were carefully orchestrating federal litigation challenging the Federal Defense of Marriage Act.3 Because these federal lawsuits were seeking to compel the federal government to recognize same-sex couples’ valid state-law marriages, favorable results would be limited—immediately affecting only states that already recognized same-sex couples’ marriages.4 LGBTQ-movement advocates were studiously avoiding federal litigation challenging state bans on marriage for same-sex couples, worried about seeking too much, too quickly, from the Supreme Court.

Yet they were also contending with a federal lawsuit that sought a nationwide ruling on marriage equality. Famed private-firm attorneys David Boies and Ted Olson had challenged California’s constitutional ban on same-sex marriage in federal court under the Federal Constitution.5 Unable to stop that lawsuit’s march to the Supreme Court, LGBTQ-movement lawyers sought to slow it down and limit its reach.6 They attempted to intervene in the district-court proceedings and advocated for a full trial rather than resolution at the preliminary-injunction stage. At the appellate level, they tried to frame the main question narrowly: whether California, which provided the state-law rights and obligations of marriage to same-sex couples through a domestic-partnership scheme, could withhold the label “marriage.”7 Even a Supreme Court decision resolving that question would directly affect only the handful of states that already offered civil unions and domestic partnerships to same-sex couples. At the time I published Winning Through Losing, therefore, LGBTQ-movement lawyers were approaching litigation with caution. Above all, they were trying to avoid losses in court.

It is against this backdrop that I focused on how social-movement actors can, and do, leverage litigation loss for productive internal and external effects.8 LGBTQ-movement lawyers seeking marriage equality supplied some of my primary examples of winning through losing. These lawyers viewed litigation cautiously and often consciously avoided going to court.9 They approached litigation as one tool among many, to be used carefully in connection with tactics in other arenas. Cognizant of courts’ limitations and the importance of change emanating from other venues, LGBTQ-movement lawyers attempted to use a loss in court to speak constructively to nonjudicial actors.10

Despite this thoughtful orientation toward litigation taken by the lawyers at the center of my account, at times commentators invoke the concept of winning through losing in ways that can insulate decisions about whether to litigate from critique and instead support a less cautious approach to court-based tactics.11 If even losing litigation can be used to advance a social movement’s aims, then the costs of litigating may appear minimal. On this view, there is little at stake in the decision of whether to go to court in the first place. Movements, on this account, win if they win and win if they lose.

This invocation of Winning Through Losing is misguided. Deciding whether to litigate is not a costless exercise. Losing litigation can and does negatively impact social movements. The concept of winning through losing only makes sense within a less court-centered and more multidimensional approach to law and social change. To show how, this Essay turns to a contemporary example of LGBTQ-movement litigation: challenges to bans on gender-affirming care for minors. Whereas much of my original article focused on the role of advocates after losing litigation, the litigation culminating in the Supreme Court’s recent decision in United States v. Skrmetti12 sheds light on how advocates think—and should think—about the prospect of losing before litigating.

This Essay proceeds in three Parts. In Part I, I return to my original article, emphasizing the qualified nature of my claim—that advocates may, in some circumstances, turn litigation loss into productive ends. I point out how a failure to appreciate the limited nature of my claim produces a juriscentric account that is at odds with the account of movement lawyering at the center of Winning Through Losing and that shields advocates’ decisions about litigation from criticism.

In Part II, I draw on Skrmetti to identify and examine key features of the legal and political context that shape advocates’ ex ante evaluation of the effects of a potential litigation loss. These include the concrete legal consequences of a negative decision, the opportunities for effective advocacy in nonjudicial arenas in the wake of a legal defeat, and the meanings that a loss in court could create both within the movement and outside of it. Advocates must consider these features in deciding whether to litigate and, if litigation is pursued, how to litigate.

Part III complicates the decision of whether to litigate by observing the lack of control that movement advocates face. Although scrutiny of litigation decisions should incorporate this observation, judgments about how to litigate can still be interrogated, as those largely remain in advocates’ control. Decisions about where to sue, what claims to assert, and whether to appeal adverse judgments can expand or limit a lawsuit’s reach—win or lose. To illustrate, I draw on state-court litigation challenging bans on gender-affirming care for minors, which is an inherently more limited approach than that taken in Skrmetti and one that remains open after that defeat.

Ultimately, winning through losing describes neither a simple reaction to loss in court nor a straightforward tool equally available in all settings. Instead, it describes a limited but possible response to litigation loss that advocates should, and typically do, consider as part of the analysis of whether and how to litigate in the first place. From this perspective, the prospect of winning through losing should not insulate advocates’ decisions about whether and how to litigate from scrutiny. Although I do not offer an assessment of the wisdom of any particular lawsuit, appreciating how winning through losing is contingent on several factors—many of which can be identified and assessed ex ante—contributes to a more clear-eyed assessment of litigation choices.

I. winning through losing

In this Part, I return to my original article, describing the concept of winning through losing and emphasizing the qualified nature of my claim—that advocates may, in some cases, cultivate positive effects from a loss in court. That is, advocates do not inevitably or necessarily win through losing. I then show how some commentators have obscured this feature of winning through losing in ways that insulate decisions about whether and how to litigate from scrutiny. This misuse of the concept runs counter to the account of law and social change and the model of movement lawyering at the core of Winning Through Losing.

A. Theorizing Litigation Loss

In Winning Through Losing, I offered a framework within which to evaluate the benefits and drawbacks of court-centered strategies for social change. The framework drew from sociolegal scholarship on the turn to law by social movements and the indirect effects of litigation. Scholars of legal mobilization had identified and elaborated the constructive role of litigation beyond court-ordered relief.13 They had shown how the process of litigating, as well as achieving a victory in court, can produce “radiating” effects14—mobilizing citizens, framing grievances, and pressuring elites both inside and outside the government.

Scholarship in this vein was criticized by, and in turn criticized, work by legal scholars and political scientists more skeptical of court-based strategies. Most famously, Gerald N. Rosenberg described litigation as a “hollow hope.”15 On his view, litigation is not only unlikely to produce reform directly through enforceable judgments, but also unlikely to generate positive indirect effects, such as mobilizing constituents, influencing public opinion, or motivating legislators.16

Putting these competing literatures in productive conversation rather than in conflict, Winning Through Losing showed how advocates deploy litigation loss in ways that work within the legal-mobilization framework but draw on insights from more pessimistic accounts of court-based change. Advocates, I showed, attempted to seize on the specific limitations of court-based strategies to advance their movement agendas.17

I identified internal movement effects that litigation loss may generate: loss can be used to construct organizational identity and mobilize constituents.18 I also examined potential external effects: loss can be used to convince actors in other arenas, such as legislatures and the executive branch, to act, and to persuade the public to respond to a countermajoritarian judiciary.19 Looking at social movements on both the left and the right, I supplied concrete examples of how advocates have, on some occasions, turned loss into new opportunities, ways of speaking, and strategies for change.

For example, in the wake of the Supreme Court’s decision in Bowers v. Hardwick upholding antisodomy laws against constitutional challenge, LGBTQ-movement lawyers successfully turned to state courts and state legislatures to strike down and repeal such laws.20 And after the California Supreme Court’s decision recognizing same-sex couples’ right to marry, Christian Right advocates successfully mobilized voters to amend the state constitution to exclude same-sex couples from marriage.21 These advocates used losses in court to speak to constituents, pressure nonjudicial state actors, and message to the public.

My argument was not that litigation loss inevitably yields beneficial indirect effects. Instead, my argument was that “[l]oss may yield . . . indirect effects.”22 In terms of internal effects, I argued that “[l]itigation loss may raise consciousness, mobilize constituents, build resolve, and raise funds.”23 In terms of external effects, I argued that “litigation loss . . . may prompt a shift to a more legislative or administrative strategy while also providing a useful way to communicate the need for action in these venues.”24As Catherine Albiston pointed out in an illuminating response to my article, “the key words in NeJaime’s argument, are ‘may,’ ‘might,’ ‘can,’ and the like.”25 Many of the scholars who have invoked and applied the concept of winning through losing have correctly characterized the claim as qualified.26 Advocates, too, have written about winning through losing on these terms.27

B. The Role of Litigation in Winning Through Losing

But not all invocations of winning through losing have been so careful. Some scholars have simply not emphasized the limited nature of my argument.28 Others have cited the article in claiming that losing “can be (more) effective” than winning.29 Going further, another scholar characterizes Winning Through Losing as “arguing that litigation is always good for social movements, even when activist plaintiffs lose.”30 These tenuous appeals to the concept of winning through losing can insulate court-based strategies from criticism. If even losing litigation can promote a movement’s ends—perhaps more effectively than winning—then litigation appears as an unmitigated good. On this reading, little is at stake in the decision as to whether and how to litigate in the first place.

If this were my argument, which it is not, then winning through losing would rely on and contribute to a “stereotyped vision of the naïve rights-crusading public interest lawyer”31—a vision that historically shaped prominent critiques of social-change litigation. If this were my argument, then winning through losing would begin from the premise that social-movement lawyers prioritize litigation over other, more promising tactics—a premise that has animated critics of contemporary public-interest lawyers.32 If this were my argument, then winning through losing would support a juriscentric model, in which advocates put their faith in courts over other institutions and avenues of change.

By contrast, litigation and courts play much more nuanced roles in my account of winning through losing. Given my attention to how advocates frame litigation loss to make change in nonjudicial arenas, winning through losing is at odds with a juriscentric view of social change. In the LGBTQ-rights work I used to illustrate winning through losing, social-movement advocates did not bring cases regardless of whether they expected to lose. Indeed, these lawyers were skeptical of litigation, even if they believed they would win. They made calculated decisions about whether to pursue their aims through litigation, and they viewed litigation as deeply connected to nonlitigation strategies.

Lawyers, in my account, approached litigation as just one component of what Scott L. Cummings and I labeled multidimensional advocacy—“advocacy across different domains (courts, legislatures, media), spanning different levels (federal, state, local), and deploying different tactics (litigation, legislative advocacy, public education).”33 In an article published the year before Winning Through Losing, we supplied a case study of California’s path to marriage equality that challenged key assumptions of the popular “backlash thesis” about the counterproductive effects of winning litigation. We showed that, in California, LGBTQ-movement lawyers “did not give litigation tactical priority,” but instead “generally sought to avoid affirmative litigation in favor of a legislative and public education approach—with litigation used defensively to block challenges to successfully enacted bills.”34 Of course, none of this meant that LGBTQ-movement advocates did not use litigation as a critical tool for social change. They simply did not view litigation as the primary mode of social change or as disconnected from other tactics.

In theorizing winning through losing, I argued that this “multidimensional-advocacy framework is central to an appreciation of the function of litigation loss.”35 Social-movement lawyers, I observed, “work closely with nonlawyer advocates to construct and implement a coherent strategy across a number of institutional fronts.”36 Because they “understand courts’ limitations and constraints and appreciate the importance of policy formation emanating from nonjudicial channels,” they “view litigation as an essential, but partial, strategy.”37 Although advocates hope to avoid losses in court, they are prepared to “use losses to shape strategies in other venues.”38Through this lens, winning through losing describes a potential dynamic that advocates operating across multiple institutional settings and levels of government seek to cultivate when the careful decision to litigate results in a judicial defeat.

In sum, there are two relevant and related features of Winning Through Losing. First, the original article made a qualified claim, arguing that litigation loss may have positive indirect effects for a movement. Second, the original article decentered litigation, situating court-based tactics as simply one part of a broader movement strategy and relating court-based activity to contestation in other arenas. With these two features in view, we can see, first, that winning through losing is not inevitable and, second, that the prospect of winning through losing depends in part on nonlitigation strategies.

Part II examines the Skrmetti39litigation from this perspective, identifying aspects of the legal and political context that sophisticated advocates should consider in evaluating the effects of a potential litigation loss. This evaluation should occur before litigation, shaping the decision of whether to litigate in the first place and how to litigate if one decides to pursue litigation. Advocates should then continue to assess the effects of a potential loss throughout the litigation and make key decisions—such as whether to appeal—in light of that assessment.

II. skrmetti and the prospect of losing: deciding whether and how to litigate

Today, LGBTQ-movement advocates confront a growing array of anti-LGBTQ laws and regulations at both the state and federal levels. The trans community in particular is under attack. Since taking office, President Trump has issued a series of executive orders undermining trans equality.40 State lawmakers across the country have limited the rights of their trans residents.41 Among these restrictions, healthcare has been a particularly popular target. In seeking to cut off federal funding for gender-affirming care for minors as well as research about such care, the President has purported to “protect[] children from chemical and surgical mutilation.”42 And at the state level, more than half of the states now ban gender-affirming care for minors.43 Lawyers at major LGBTQ-legal organizations have challenged many of these laws. The Supreme Court took up one such challenge in Skrmetti,44 a case initiated by the ACLU’s LGBTQ & HIV Project, in collaboration with the ACLU of Tennessee and Lambda Legal. The Biden Administration also joined the challengers.

While the case was pending at the Court, the lead ACLU lawyer, Chase Strangio, spoke with New York Magazine’s Irin Carmon: “[T]his fight has been a fight that almost every lawyer in every big LGBT org has been working on for the last four years. It’s a collective effort on behalf of our community.”45 For Strangio, “win or lose, that work will continue.”46 At the time, most observers assumed that the ACLU would lose—that the Court would reject the challenge and uphold Tennessee’s ban on gender-affirming care for minors. As Ian Millhiser wrote in Vox after oral argument, “The biggest question in Skrmetti . . . is likely to be how the Court finds a way to uphold Tennessee’s law, rather than whether the Court does so.”47

Carmon considered, from the perspective of trans advocates like Strangio, what might happen “if they lose.”48 In doing so, she turned to Winning Through Losing, writing that the article shows “the political gains that can counterintuitively come when a movement faces defeat in court. The clarity of a loss can generate new energy and strategies.”49 Carmon wisely noted that a defeat “can”—not will—generate political gains and movement energy.50 Still, she did not offer insights about how we know whether a loss can have these productive effects. Nor did she relate winning through losing to the assessment of whether and how to litigate in the first place. Pointing to the prospect of winning through losing after the decisions to litigate and to pursue a Supreme Court ruling have been made may simply justify those decisions, regardless of the outcome. In this sense, the invocation of Winning Through Losing may work to shield the decision to pursue Skrmetti from critique.

The ACLU did, in fact, lose. In a 6-3 ruling, the Court upheld Tennessee’s ban on gender-affirming care for minors.51 By situating the Court’s decision within the broader legal and political context in which the Skrmetti litigation unfolded, this Part identifies considerations that should inform an assessment of litigation loss before and throughout litigation. More specifically, I explain how concerns about the negative impact of a litigation loss should shape an evaluation of whether to litigate in the first place and how to litigate if one decides to go to court. Although I address the substance of the Court’s decision in Skrmetti, I emphasize how advocates might assess the prospect of losing before the Court’s decision—when lawyers decided to litigate in the first place and eventually to seek Supreme Court review. These decision points are key to the ex ante assessment of loss that advocates undertake. I do not offer a final judgment on the Skrmetti litigation but instead point to three important features of the legal and political context that stand out as relevant to these critical decision points.

A. Material Legal Consequences

The first feature of the legal and political context that shapes advocates’ ex ante assessment of a potential loss is perhaps the most obvious: a loss’s concrete material impact. Drawing on the labor movement, Catherine L. Fisk and Diana S. Reddy responded to my work on winning through losing by describing “losing through losing”52—the prospect that a litigation loss can significantly harm a movement. They attended specifically to the “material consequences”53 of a court’s decision—that is, “what a court’s judgment concretely yields.”54 A litigation loss obviously impairs the legal rights of the litigants themselves and others harmed by the challenged law. It also affects individuals who would challenge other laws based on doctrinal paths that the decision rejects or narrows.

Advocates approaching Skrmetti clearly had to grapple with the direct effects and scope of a potential adverse ruling. Skrmetti was filed in federal court and asserted federal constitutional claims. It eventually reached the Supreme Court after opponents of the law sought review of the Sixth Circuit’s adverse ruling. The Court’s decision has vast geographical and doctrinal reach.

With Skrmetti, laws in other states restricting gender-affirming care for minors are now understood as permissible.55 And federal and state lawmakers who have yet to restrict gender-affirming care for minors are authorized to do so. In fact, not long after the Court’s decision, New Hampshire lawmakers gave final passage to bills banning such care for the first time in the state.56 Advocates consider these kinds of direct consequences when deciding whether to litigate in federal court and whether to seek Supreme Court review.

The Skrmetti loss also reaches beyond the specific issue of bans on gender-affirming care for minors. The decision closes certain doctrinal paths to challenge other laws that restrict the rights of trans people.57 Of course, advocates cannot know beforehand exactly which paths might be closed. But they can anticipate the possibilities. The central issues the Court considered were whether the Tennessee law constitutes sex-based discrimination or otherwise impermissible discrimination against trans people. An adverse ruling on these questions can have far-reaching effects.

The Court found that the healthcare ban did not discriminate based on sex or transgender status. Instead, the Court analyzed the law as drawing distinctions based only on medical use and age that merited the most deferential form of equal-protection review.58 First, the Court held that the Tennessee law did not restrict the use of puberty blockers or hormones based on sex but rather based on medical purpose. Any boy or girl could access puberty blockers or hormones for certain medical conditions, but no boy or girl could access puberty blockers or hormones for gender dysphoria.59

Second, the Court held that the Tennessee law did not discriminate based on transgender status. In doing so, the Court relied on a largely discredited 1974 decision, Geduldig v. Aiello.60 There, the Court had held that a state insurance program that excluded pregnancy from coverage did not discriminate based on sex. The insurance program, the Court reasoned, distinguished between “pregnant women and nonpregnant persons.”61 Because women were included in both groups, there was no sex-based discrimination.62

In Skrmetti, the Court reasoned that the Tennessee law “divides minors into two groups: those who might seek puberty blockers or hormones to treat the excluded diagnoses, and those who might seek puberty blockers or hormones to treat other conditions.”63 The Court admitted that “only transgender individuals seek puberty blockers and hormones for the excluded diagnoses”—that is, “gender dysphoria, gender identity disorder, and gender incongruence.”64 But “the second group,” the Court insisted, “encompasses both transgender and nontransgender individuals.”65 Accordingly, “there is a ‘lack of identity’ between transgender status and the excluded medical diagnoses.”66

The Court’s refusal to find that the Tennessee law discriminates based on sex or transgender status can insulate other laws from meaningful constitutional scrutiny. Most obviously, the Court’s reasoning might authorize bans on gender-affirming care for adults. Lawmakers could draw the same distinction based on medical use without running afoul of equal-protection principles. Federal and state legislators have already begun targeting gender-affirming care for adults, though doing so through funding measures and health-insurance exclusions rather than outright bans.67 These types of measures, as well as more drastic ones, now seem presumptively constitutional.

Skrmetti can reach not only constitutional but also statutory claims. Consider the Eleventh Circuit’s approach to the exclusion of “sex change surgery” in a Georgia county’s health insurance plan covering employees.68 Before Skrmetti, a three-judge panel had found that the exclusion constituted impermissible sex discrimination under Title VII.69 After Skrmetti, the Eleventh Circuit sitting en banc upheld the policy, with the dissenting judge from the three-judge panel writing for the majority.70 Finding that “[t]he Supreme Court’s reasoning in Skrmetti applies equally here,” the court held that the policy does not constitute discrimination based on sex because “[t]he County’s policy does not pay for a sex change operation for anyone regardless of their biological sex.”71 The court also held that “the County’s plan does not facially discriminate based on transgender status,” observing that “the Supreme Court rejected a very similar argument in Skrmetti.”72 Instead, “[l]ike the law at issue in Skrmetti,” the court explained, “the County’s policy is a ‘classification based on medical use’” and thus is permissible under Title VII.73 Other federal courts may similarly follow Skrmetti to uphold exclusions of gender-affirming care from insurance on both constitutional and statutory grounds.

Before pursuing a case like Skrmetti, sophisticated advocates would assess the possibility of a negative decision authorizing additional discriminatory laws, not simply those of the kind at issue in the case. That is, movement lawyers typically consider how losing a particular lawsuit could hamper other court-based strategies and doctrinal arguments. As Gwendolyn Leachman found in her study of marriage-equality litigation:

The threat in bringing marriage arguments was not just that they could lose, and block possibilities for same-sex marriage in a particular state. It was also that a negative precedent on marriage could later be used against LGBT rights groups litigating other issues for the community collectively. Many noted how prior litigation losses on marriage had in the past (and could in the future) spill over into domestic partnership and parenting/family issues.74

Lawyers who had a historical perspective on the movement appreciated, as one lawyer told Leachman, “how the losses get used against us in other cases.”75 For example, after the Supreme Court upheld antisodomy laws in Bowers, advocates struggled to argue that discrimination against gays and lesbians was constitutionally impermissible. As the D.C. Circuit concluded the year after Bowers was decided, “[i]f the Court was unwilling to object to state laws that criminalize the behavior that defines the class, it is hardly open to a lower court to conclude that state sponsored discrimination against the class is invidious.”76These lessons resonated in working toward marriage equality. Because “losses could be used so broadly against LGBT rights groups—as past experience demonstrated,” advocates saw an “urgent need for cautious, incremental strategies.”77

We can observe this danger in the Skrmetti litigation. The trans community is facing a wave of discriminatory laws—from bans on open military service to restrictions on access to public bathrooms.78 Advocates will struggle to challenge these laws successfully in the face of Skrmetti. A future ruling on the constitutionality of laws that explicitly classify based on transgender status could make such challenges even more daunting.79 Because the Court held that Tennessee’s law did not discriminate based on transgender status, it did not decide whether laws that classify on that basis should be subject to heightened scrutiny for equal-protection purposes. Justice Barrett, however, wrote a concurring opinion solely to make clear that, in her view, “[t]he Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status.”80She engaged in extensive reasoning to explain her conclusion81—reasoning that lower courts might rely on when confronting the same question.82 In Barrett’s view, rational-basis review is appropriate, thus giving “legislatures flexibility” in “other areas of legitimate regulatory policy” relating to transgender status—from “access to restrooms to eligibility for boys’ and girls’ sports teams.”83 Given the hopes expressed by some observers that Barrett might be more open to claims of trans discrimination than some of her colleagues in the Court’s conservative supermajority,84 it is particularly noteworthy that she wrote separately solely to make clear her view that laws that turn on transgender status are presumptively constitutional.

Before appealing Skrmetti to the Supreme Court, lawyers had to consider the possibility that the Court would weaken the case for heightened scrutiny for laws that discriminate based on gender identity. Now, given Justice Barrett’s position, with which both Justices Thomas and Alito expressly agreed,85 it is difficult to imagine that the Court would strike down even laws that explicitly discriminate against trans people. Lower-court decisions finding that trans persons constitute a quasi-suspect class are suddenly on shakier ground.86 With Skrmetti erecting new barriers to challenging discriminatory measures, legislators may be emboldened to pass more such laws. Unsurprisingly, in Skrmetti’s wake, lawmakers in some states have sought to further restrict trans equality.87

Moreover, the effects of the loss in Skrmetti may be felt not only within the LGBTQ movement, but also outside of it. Clearly, the litigation raised the possibility of significantly limiting sex-discrimination claims not just on behalf of trans plaintiffs but more generally. Presenting the Court with sex-equality claims ran the risk of eroding longstanding legal principles against sex discrimination and setting back the adjacent women’s-rights movement. As legal scholar Naomi Schoenbaum bluntly put it after oral argument in Skrmetti, “The Supreme Court Case over Trans Youth Could Also Decimate Women’s Equality.”88 Yet, when asked whether the ACLU had consulted with women’s-rights groups before pursuing Skrmetti, the organization’s executive director, Anthony Romero, responded, “I don’t play ‘Mother May I?’ with a group of sister organizations.”89

The Court’s decision did significant damage to equal-protection law. The Court ruled that “mere reference to sex” is not enough to trigger heightened scrutiny for equal-protection purposes,90 and reasoned that so long as a “law does not prohibit conduct for one sex that it permits for the other,” it does not discriminate based on sex.91 This position flies in the face of key sex-equality precedents.92 As Justice Sotomayor explained in dissent, even if “not every legislative mention of sex triggers intermediate scrutiny,” the Tennessee law “defines an entire category of prohibited conduct based on inconsistency with sex.”93 “[I]t is hard to imagine a law that prohibits conduct ‘inconsistent with’ sex that could avoid intermediate scrutiny,” she reasoned.94After the decision, Schoenbaum explained that, “[b]y carving out an exception to the rule that any law that draws sex-based lines is subject to exacting scrutiny, Skrmetti opens the door to a judge’s discretion about whether a sex-based rule even merits a close look.”95

As we saw, Skrmetti also breathed new life into Geduldig.96 As Schoenbaum declared, “The Supreme Court Just Revived One of the Worst Anti-Woman Rulings of All Time.”97 Constitutional scholar Leah Litman observed that “[i]f the Republican appointees plan to revive this older case, they will take the law and the country back to a time when the government used the existence of ‘biological differences’ between men and women to excuse all kinds of discrimination against women.”98 Again, this potential retrenchment runs counter to decades of sex-equality jurisprudence. As Justice Sotomayor observed in dissent, “In no sense [do] the biological differences between the sexes relieve courts of the obligation to examine the sex classification with a careful constitutional eye.”99 Indeed, the Court’s 1993 decision in United States v. Virginia, Cary Franklin explains, “makes clear that anti-stereotyping doctrine governs all instances of sex-based state action, whether or not ‘real’ differences are involved.”100

Given the geographical and doctrinal reach of Skrmetti, the negative consequences of the loss are substantial. As a formal legal matter, the decision may be viewed to authorize not only bans on gender-affirming care for minors, but also other forms of trans discrimination. More broadly, the decision weakened longstanding sex-equality principles. These possibilities must inform the initial decision of whether to litigate in the first place—that is, whether to file a lawsuit challenging the Tennessee law.

If advocates decide to litigate, these possibilities also must inform decisions about how to litigate—whether to file in federal or state court, whether to bring state or federal claims, and whether to appeal, including to the Supreme Court. If a state court rejects a state constitutional challenge to a state law, the decision’s doctrinal reach is limited. It only directly affects the laws in that state. If the Sixth Circuit’s decision in Skrmetti had not been appealed to the Supreme Court, the decision’s doctrinal reach would be limited to the states within its jurisdiction. A Supreme Court ruling on a federal constitutional challenge to a state law resolves much more—giving more to those who win and taking more from those who lose.

B. The Political Opportunity Structure

The second feature of the legal and political context that is relevant to an ex ante assessment of litigation loss concerns the relative openness of nonjudicial arenas, including legislatures and the executive branch. Advocates make decisions about whether and how to litigate in the context of what social-movement theorists call the “political opportunity structure”— “the political environment in which a movement operates and with which it interacts.”101 The political opportunity structure accounts for “the degree of openness of the formal political structure to advocacy efforts, the nature of alignments between powerful ‘elites,’ actual alliances between movements and these elites, and the state’s ability and inclination to repress a movement.”102

Through the lens of the political opportunity structure, decisions about litigation are made in light of the openness of other venues, including the legislative and executive branches. Skrmetti arose at a time when opportunities in other arenas were limited. In some ways, this makes litigation more attractive, as other avenues for change are relatively closed. Yet this feature also may make it more difficult to leverage a litigation loss productively—as government officials in other branches appear unlikely to counter a negative judicial decision.

To assess the opportunities and constraints that would exist after a loss, advocates must consider the possibilities for countering an adverse ruling in other venues. As Albiston hypothesized, winning through losing would likely be more possible “under conditions of divided government when opposing factions control courts and legislatures.”103 In these circumstances, “alternative strategies such as legislative-override campaigns are more likely to arise and be successful.”104 For example, in Winning Through Losing, I drew on the example of the Lilly Ledbetter Fair Pay Act, the first piece of legislation signed by President Obama after his inauguration.105 The legislative and executive branches, newly in Democratic control, countered a Roberts Court decision rejecting an equal-pay claim under Title VII and narrowing the circumstances in which such claims could be brought.106

In contrast, Albiston explained, “when one party controls all three branches of government, not only are shifts to other venues less likely to be successful, but losses can be much more damaging because they solidify legal policy against the movement far into the future.”107 In Tennessee, where Skrmetti arose, the legislative and executive branches are tightly controlled by Republicans opposed to trans equality. Rather than act to counter the Court’s decision, the state’s governor, attorney general, and legislative leaders praised the ruling.108 The same is true in many of the states that enacted similar bans on gender-affirming care for minors. In these states, Republicans tend to control both the legislature and the executive branch. They are unlikely to be persuaded that they should undo discrimination that has been expressly authorized by the Supreme Court. In fact, they may be emboldened to enact additional discriminatory measures. Again, New Hampshire lawmakers advanced a ban on gender-affirming care for minors in Skrmetti’s wake.109

The situation at the federal level is equally dismal for trans advocates. Today, Republicans control both Congress and the presidency. This was not true at the time that the Skrmetti litigation was initiated or the petition for certiorari was filed. Advocates may not know which party will control the other branches of government at the time of an eventual judicial decision, but they can consider the likelihood of various electoral outcomes as they assess the dangers of a judicial defeat. For years, the Republican Party has pushed federal, state, and local measures restricting trans rights.110 President Trump has taken many steps to restrict trans equality.111 Congress has also pursued measures that discriminate against the trans community.112 Under these conditions, the possibility of leveraging a Supreme Court loss in legislative or administrative arenas at the federal level appears vanishingly small. In Skrmetti’s wake, Attorney General Pamela Bondi “applaud[ed]” the decision, vowed that the “Department of Justice will continue [to] fight to protect America’s children,” and “encourage[d]” other states to follow Tennessee’s lead.113

Skrmetti also comes at a particularly fraught time for the alliance between trans advocates and the Democratic Party. Although Democratic leaders may have been more openly supportive at the outset of the Skrmetti litigation, Democratic strategists have urged the party to scale back its support for trans rights to better reflect the views of the median voter.114 Indeed, three governors seen to be leading contenders for the 2028 Democratic presidential nomination “said they were not issuing any statements on the decision.”115 With presumably sympathetic political leaders refusing to speak, advocates will struggle to cultivate effective responses to the Court’s ruling.

Ultimately, when litigation loss confirms the prevailing views of the dominant political party and the minority party’s sympathies seem to be waning, the prospects of meaningfully using the loss to pursue change in nonjudicial arenas seem dim. This point informs an assessment of the negative effects of a litigation loss that advocates must consider before proceeding in court. Again, advocates may not know the exact balance of power in advance of a court’s decision, but they can consider the likely possibilities.

These possibilities should inform decisions not only about whether to litigate, but also about how to litigate. In the face of a hostile federal government, federal litigation asserting federal constitutional claims may become less attractive, while state-court litigation asserting state constitutional claims may become more attractive. Advocates can choose among states based on the composition of the state courts as well as the balance of power in the state legislative and executive branches. The dynamics across these arenas should shape advocates’ assessments of how they might leverage a judicial victory and mitigate a judicial defeat.

C. Meaning-Making

The third feature of the legal and political context concerns the broader cultural and ideological landscape in which the litigation loss takes place. Scholars of legal mobilization describe law’s constitutive effects, which include the meanings that litigation, including litigation loss, can create.116 In a related literature, sociolegal scholars have examined legal consciousness, understanding how legal frames can shape everyday experiences in ways that can lead individuals to contest, or accept, their discriminatory treatment.117 This work takes cues from social-movement theory that focuses on framing, in which movement actors engage in “conscious strategic efforts . . . to fashion shared understandings of the world and of themselves that legitimate and motivate collective action.”118 A court decision can validate some frames and impede others.119

The decision in Skrmetti comes at a moment when anti-LGBTQ attitudes, and anti-trans attitudes in particular, are rampant.120 Lawmakers at federal and state levels seem eager to enact more and more policies that harm trans people. Even as support for trans rights has grown in some quarters, public support for major priorities of the LGBTQ movement is relatively low, or at least unstable. Polling after the 2024 election found Americans divided on the wisdom of laws like the one at issue in Skrmetti, banning gender-affirming care for minors.121 Indeed, support for such laws slightly increased among both Republicans and Democrats from 2022 to 2024.122

Under these conditions, an adverse ruling may consolidate and legitimate anti-trans sentiment. As Albiston contemplated, “[L]osing a case can delegitimize [a group’s] cause, marking it as beyond the protections and recognition of the law.”123 As a lawyer told Leachman in the marriage-equality context, the risk is that a negative “decision is taken as . . . ‘gay people don’t deserve the same treatment,’ even though, well, it was ‘just about marriage.’”124

Although movement actors will work to frame a loss as “oppression,” rather than “the proper exercise of authority,” they do not in fact have “control over how a particular issue is framed.”125 According to Albiston, “dominant cultural ideologies generally paint disfavored minorities in a negative light.”126 Against this backdrop, and in light of some Democratic leaders’ silence in Skrmetti’s wake, advocates representing the relatively small trans community might struggle to cultivate public outrage against the Court’s decision.

At a minimum, extensive work must be done to shape public and elite views about the underlying issues. Historically, the LGBTQ movement has emphasized the importance of social and cultural change alongside political and legal advocacy.127 Strategic litigation can serve public-education aims. As the legal director of a major LGBTQ-legal organization put it during the campaign for marriage equality, litigation was “part of a bigger strategy of changing the narrative of gay people.”128 But these aims need not be met by far-reaching litigation that seeks Supreme Court review. Instead, as Cummings and I showed in California, lawyers “assert[ed] relatively modest legal claims” to nonmarital rights that “replac[ed] abstract legal concepts with powerful stories of real human suffering.”129

Today, trans advocates may see a need for incremental strategies that serve public-education aims. Mara Keisling, who founded the National Center for Transgender Equality more than two decades ago, fears that activists “lost credibility with many Americans once they started accusing people of bigotry over sports.”130 Another longtime trans advocate worries that with this all-or-nothing strategy, potential allies are made to “feel stupid or condescended to.”131 Keisling urged advocates to “focus first on measures that reinforced the fundamental humanity of transgender people, such as hate-crime protections.”132

Internal movement research appears to support this approach, emphasizing the importance of messaging that “takes into account that most Americans do not know a lot about life as a transgender person, and reinforces the basic idea that transgender people want what everyone else wants: fairness, respect and love.”133 This more incremental approach would shape decisions about whether and how to litigate. Advocates would likely pursue more modest claims over more ambitious ones. And they would likely prioritize issues with wider appeal over those seen as more controversial.

Judicial decisions shape and reshape frames not only outside but also inside a movement. Strangio himself expressly acknowledged the constitutive effects of legal mobilization, including when litigation results in defeat. In speaking to legal journalist Chris Geidner before the Court decided Skrmetti, he explained:

I am just of the view that the fight itself is critical. It’s empowering. And I don’t proclaim to know the outcome of anything at the outset of the fight. . . . [T]he possibility of litigation, even if we can’t be successful 100% of the time, which nothing is successful 100% of the time, we need to be able to show people . . . that we’re trying in all sorts of different ways. So I am certainly not of the view that everything is going to turn out great in the courts, but I am of the view that we are absolutely going to put our best case forward every single time.134

At the same time, a decision determining that discrimination is permissible can disempower movement constituents and fuel feelings of resignation. In their analysis of the labor movement’s encounter with law, Fisk and Reddy observe that “a legal loss can cause hopelessness.”136 As Duncan Hosie argues, “repeated confrontation with an obdurate Court” may have “long-term demobilizing effect[s].”137 More practically, losses may make fundraising and organizing more challenging.

In the end, defeats in court create meanings, which movement advocates struggle to control. Even when advocates draw on a litigation loss to mobilize constituents and express solidarity, external actors may use the result in court to shore up popular and elite sentiment opposing the movement’s aims. Under these conditions, a litigation loss may be used to confirm, rather than challenge, a group’s subordination.

This possibility must be considered by advocates when they decide whether to litigate in the first place and, once they pursue litigation, how to litigate. A state-court decision adjudicating state-law claims will likely attract much less attention than a U.S. Supreme Court decision adjudicating federal claims. If advocates prevail in state court, the constitutive effects may be relatively limited. For example, community members in other states may be unaware of or unmoved by a decision in a distant state invalidating a state law. At the same time, if advocates lose in state court, the risks of demobilization may also be relatively limited. Again, community members in other states may be unaware of or undeterred by the decision.138 In this sense, the more likely a judicial defeat seems, the more appealing a state-court challenge may become.

III. complicating litigation decisions

These considerations—material legal consequences, strategic opportunities outside courts, and constitutive effects—should shape the assessment of potential litigation loss. This assessment of litigation loss is part of the broader assessment of whether to litigate in the first place. But none of this is to suggest that the decision whether to litigate is straightforward. These decisions are not made in isolation. In this Part, I complicate the decision of whether to litigate by identifying some of the limits on advocates’ control over litigation. More specifically, I consider how advocates can be drawn into litigation. Given that litigation may occur even when advocates think it is unwise, I consider how advocates might respond through decisions about how to litigate. If advocates who are skeptical of pursuing litigation nonetheless decide to do so, they can attempt to limit the litigation’s reach in various ways—by deciding where to file suit, what claims to make, and more generally how to proceed after initiating litigation. Such decisions can limit the effects of a potential loss—or win.

A. The Legal Mobilization Dilemma

Up to now, I have largely focused on features of the legal and political context that shape advocates’ assessment of potential loss as they consider whether and how to litigate. But advocates do not make decisions in a vacuum. They respond not only to the tactics of their adversaries, who may draw them into court, but also to the decisions of their allies, who may decide to litigate on their own. Even the most cautious movement lawyers may be pressured into litigating.

The ACLU’s decision of whether to challenge gender-affirming care bans in court was shaped by the actions of their adversaries. Today, conservative organizations have every reason to pursue litigation in the federal courts and to bring their claims to a sympathetic Supreme Court.139 Critics of the ACLU’s lawsuit, Strangio remarked in Skrmetti’s aftermath, “ignore[] the fact that it was a right-wing, billion-dollar movement that thrust these fights into the political and judicial spheres.”140 In this sense, the conservative push to enact and defend anti-trans laws shaped the ACLU’s decisions.

It is not just opponents who may exert pressure on advocates to litigate. The prospect of lawsuits by allies, both inside and outside the movement, shapes the decision whether to litigate. The ACLU is one of many legal organizations representing the interests of trans people. In addition to trans-specific organizations, other national LGBTQ-movement organizations, such as GLAD Law, the National Center for LGBTQ Rights (NCLR), and Lambda Legal, devote significant resources to trans advocacy. The explosion of state laws restricting access to gender-affirming care meant that these organizations and others faced a growing array of potential clients and lawsuits. Lawyers around the country stepped in to represent trans clients suing to invalidate anti-trans laws. In fact, Lambda Legal was co-counsel in Skrmetti,141 and lawyers from GLAD Law and NCLR challenged bans on gender-affirming care for minors in other states.142

It is reasonable for an organization of the ACLU’s size and stature to take a leading role in these challenges. Of course, such a role may serve the ACLU’s own organizational ends—confirming its leadership on these issues and supporting its fundraising. But ACLU lawyers may also feel an obligation to defend their trans constituents. As Strangio put it, “We are right on the law, and people deserve to feel that their rights are being defended in every possible way.”143 According to the ACLU’s Romero, “We are responding to demands for justice of people who walk into our front door.”144 This “client-service” perspective, 145 in which the focus is on legal advocacy on behalf of individual clients injured by the law, sounds more like the perspective of a private-firm lawyer than the head of an impact-litigation organization. But if other organizations are willing to litigate on behalf of the trans community and challenge these unjust laws, the ACLU likely feels a responsibility—and pressure—to do the same.

Of course, litigation is just one of many ways to advocate on behalf of a community. As compared to other venues, the hostile political climate in many states likely made courts more attractive. Courts’ distinctive qualities appeal to groups struggling to have their voices heard in politics.146 Courts are relatively open and accessible; they must address questions properly presented and provide reasons for their decisions. These distinctive features not only aid movements, but also provide opportunities for some movement actors or allies to challenge and upend the decisions of other movement actors not to litigate.147 From this perspective, declining to litigate, even in the face of likely defeat, may sacrifice strategic control. Other movement actors or allies may litigate instead. The more skeptical advocates would not only have their decision to avoid litigation upended, but they would also lack control over how the litigation proceeds.

As I argued in The Legal Mobilization Dilemma, published the year after Winning Through Losing, successful legal mobilization increases the likelihood that individuals will go to court, even against the advice of key movement leaders, in ways that jeopardize movement strategy.148 As I showed, “litigation poses a threat when tactical disagreement arises,” as a “single movement member can initiate a lawsuit that threatens to bind the entire movement.”149 The LGBTQ movement’s “sustained and successful legal mobilization may make litigation an especially appealing and powerful option through which to contest movement strategy,”150 as previous legal victories make subsequent lawsuits more attractive.

In Bostock v. Clayton County, a case in which the ACLU also represented a trans plaintiff, the Supreme Court ruled that Title VII’s prohibition on employment discrimination “because of sex” prohibits discrimination against transgender employees.151 This successful appeal to the Court made other challenges to trans discrimination appear more promising. If “sex” includes “gender identity” for purposes of Title VII, other statutes that use “sex” might also cover trans people. If “sex” includes “gender identity” for purposes of Title VII, constitutional proscriptions on sex discrimination might also cover trans people. Under these conditions, further litigation is appealing.

Given the seemingly straightforward doctrinal leap from Bostock to other forms of trans discrimination and given that Bostock was decided by a conservative Supreme Court, it may be easy to discount the long-term consequences of bringing claims before an increasingly conservative federal judiciary.152 As Leachman documented in the context of marriage-equality litigation, nonmovement lawyers, such as lawyers at private firms, failed to fully contemplate the consequences of losing. As one private-firm attorney put it, “Everyone on the team thought we were going to win. . . . So I don’t know if people really had deep thoughts about what a loss meant.”153 These attorneys, Leachman concluded, showed little appreciation for the broader consequences of a litigation loss for the movement and its long-term prospects. Instead, they justified their “involvement in marriage equality cases by focusing on the opportunity to win, rather than ‘what a loss meant’ outside their individual cases.”154

Bostock supplied an attractive logic in Skrmetti—a way to show that the Tennessee law constituted discrimination based on sex.155But the Court rejected the appeal to its earlier precedent, concluding that, “[u]nder the logic of Bostock, . . . sex is simply not a but-for cause of [the Tennessee law’s] operation.”156 Bostock provided an argument in favor of litigating Skrmetti to the Supreme Court. Yet there was always reason to worry about a decision limiting such an important precedent.157 In the absence of clarification from the Court, lower courts, as well as lawmakers and agencies, could interpret Bostock broadly. But in Skrmetti’s wake, arguments for expansive application of Bostock face new challenges.

Courts have begun to interpret Skrmetti not simply to limit the reach of Bostock’s logic in the equal-protection context, but also to constrain its application in the Title VII context itself. For example, the Eleventh Circuit relied on Skrmetti’s interpretation of Bostock to hold that an employer’s insurance policy excluding “sex change surgery” did not discriminate based on sex or transgender status under Title VII.158 A concurring judge made clear her view that “Skrmetti incorrectly applies Bostock’s test,”159 but, as the majority explained, “Skrmetti’s holding about the meaning of Bostock is binding on us unless and until the Supreme Court says otherwise. As lower court judges, we cannot shut our ears when the Supreme Court tells us how to apply its precedents.”160

None of this means that the decision to litigate Skrmetti and to rely on Bostock was wrong. The point here is that successful resort to courts—as exemplified by Bostock—can make additional court-based strategies more attractive. A precedent as groundbreaking as Bostock would be appealing to anyone contemplating challenges to anti-trans laws. Movement lawyers must then make decisions about whether to litigate in light of the increased likelihood of litigation by others. If lawyers around the country were going to pursue lawsuits based on Bostock, the ACLU, which had litigated that earlier case, might have reasonably believed its experienced litigators were better situated to handle such lawsuits.

B. Controlling How to Litigate

The decision whether to litigate, we have seen, is not solely within the control of any particular movement advocate or organization. Not only a movement’s opponents, but also other movement actors or allies may draw an organization into litigation. Yet this does not mean that advocates’ litigation decisions should be immune from scrutiny. Even if some advocates’ strategy not to litigate is upended, those advocates can respond in ways that mitigate the negative consequences of litigation, including a loss. Accordingly, like the decisions about whether to litigate, decisions about how to litigate are shaped by the broader legal and political context.

For several years, LGBTQ-movement advocates litigated marriage claims in carefully circumscribed ways. Their challenges to the Federal Defense of Marriage Act raised relatively limited claims in federal court. Their full-throated marriage-equality claims arose in state court and presented only state constitutional claims.161 They had decided not to pursue federal litigation seeking to block state laws excluding same-sex couples from marriage and sought to convince others not to file such suits. Eventually, though, their persuasion failed. When it did, movement lawyers used an array of tactics—from intervention to amicus participation—to slow down and limit federal litigation they viewed as premature or ill-advised.162

As the marriage-equality example shows, decisions about how to litigate are often as important as decisions about whether to litigate in the first place. Advocates must determine where to file suit (e.g., in federal or state court), what claims to bring (e.g., federal or state claims, constitutional or statutory claims), and how to proceed (e.g., whether to appeal an adverse judgment, whether to petition for certiorari). These decisions shape the consequences of the results in court, win or lose.

With bans on gender-affirming care for minors, LGBTQ-movement advocates faced important choices. Although they could simply not have challenged such bans in court, this path would become increasingly untenable as other lawyers decided to strike out on their own. As they did with marriage equality, they could have discouraged federal lawsuits asserting federal constitutional claims. Of course, as with marriage equality, movement lawyers may nonetheless have been drawn into federal litigation as other lawyers initiated lawsuits.

Even then, advocates would face choices about which claims to pursue and whether to appeal adverse rulings. A Supreme Court decision is not inevitable.163 Consider recent developments in litigation involving laws that prevent trans women and girls from competing in women’s and girls’ sports. After Skrmetti, the Supreme Court granted certiorari in a case challenging Idaho’s law, leading LGBTQ advocates to prepare for another defeat in the Court’s upcoming term. Eventually, though, the ACLU notified the Court that its client, a trans woman, “has voluntarily dismissed with prejudice her claims against petitioners in the district court.”164 The client, the ACLU explained to the Court, has “decided to permanently withdraw and refrain from playing any women’s sports” and “has firmly committed not to try out for or participate in any school-sponsored women’s sports.”165 Claiming that the client’s “unequivocal abandonment of her claims against petitioners renders this case moot,” the ACLU urged the Court to vacate the Ninth Circuit’s decision in her favor and “remand with instructions to dismiss the case.”166 If the Court agrees, the ACLU may avoid a nationwide ruling on the constitutionality of laws of this kind as well as the more far-reaching question of whether trans status constitutes a quasi-suspect classification.167

Under this approach, rules that advocates view as unjust would persist. But, as Hosie argues in urging a strategy of “[r]esistance through restraint,” declining to litigate in hostile federal courts can “prevent[] or delay[] the nationwide constitutionalization of those unjust rules through Supreme Court affirmation—or worse, nationwide constitutionalization paired with rollbacks of existing protections.”168

As with marriage equality, movement lawyers dealing with bans on gender-affirming care for minors could have pursued more limited legal challenges by filing suits only in state court under state law.169 State constitutions are documents of independent force and can provide protections that go beyond the Federal Constitution. In interpreting a state constitution, state courts can apply interpretive methods that are not currently favored by federal judges. Moreover, lawsuits in state courts raising only state-law claims are insulated from review by the Supreme Court.170 This might mitigate or minimize some of the negative effects of a loss—while also diminishing the positive impact of a win.

The same organizations that brought Skrmetti also pursued state-court litigation limited to state-law claims. In Ohio, a state appellate court struck down the state’s ban on gender-affirming care for minors based on the state constitution.171 The court began with “the principle that ‘[t]he Ohio Constitution is a document of independent force,’ which means that ‘state courts are unrestricted in according greater civil liberties and protections to individuals and groups’ under our own state’s constitution.”172 The Ohio Constitution offered a distinctive path for challenging the state’s ban on gender-affirming care for minors. It includes a Health Care Freedom Amendment, passed through a 2011 ballot initiative, that, among other things, prevents the state from “prohibit[ing] the purchase or sale of health care.”173 Under this provision, the court concluded, “[I]t is the constitutional right of Ohio citizens to be free to decide whether they receive health care services recommended by medical professionals and widely accepted by the professional medical community as the appropriate treatment protocols for an appropriately diagnosed medical condition.”174 Accordingly, regardless of what the U.S. Constitution would require, the Ohio Constitution provided state residents with a right to access gender-affirming care, including for minors.

Even without this distinctive state-constitutional provision, the appellate court found the Ohio law unconstitutional. Under the state constitution’s Due Course of Law Clause, which is analogous to the Federal Due Process Clause,175 parents enjoy a fundamental right to “make decisions concerning the care, custody, and control of their children.”176 Parents in Ohio argued that the ban violated this fundamental right. (Interestingly, the Supreme Court had not granted certiorari on this issue in Skrmetti.) The trial court had rejected the parental-rights claim. On appeal, the state urged the court to apply a narrow and restrictive approach to the “history and tradition” inquiry that shapes fundamental-rights analysis—one that tracked recent Supreme Court jurisprudence, and namely the Court’s analysis in Dobbs v. Jackson Women’s Health Organization.177 Just as the Dobbs Court had defined the right at stake at the most specific level,178 here the parents would need “to show a right to a particular treatment or a particular provider.”179

In interpreting the state constitution, however, the Ohio courts were “not bound to walk in lockstep with the federal courts.”180The appellate court adopted a more capacious approach to fundamental rights, refusing to frame the right at stake in terms of the specific medical procedure at issue.181 As it explained, “if this right was narrowly defined as the right to seek a specific medical treatment that is ‘deeply rooted in this Nation’s history and tradition,’ the entirety of modern medicine would fall outside of the scope of a parent’s right to control their children’s health care, as no such medical treatment could be shown to be deeply rooted in our nation’s history and tradition.”182 Only through reasoning at a higher level of generality could the parental right at stake truly be meaningful. As the court concluded, “a minor’s access to puberty blockers and hormone therapy to treat gender dysphoria—as recommended by an independent medical provider and given with the informed consent of their parents, assent of the minor, and in accordance with the prevailing standards of care—is the type of medical decision parents have a fundamental interest in making on behalf of their children.”183

At the time of this writing, it is unclear what the Ohio Supreme Court will do with the state’s ban on gender-affirming care for minors. Meanwhile, in Montana, advocates challenging that state’s ban in state court already achieved a favorable ruling from the state supreme court—a court that also featured prominently in Winning Through Losing. There, I charted Montana Supreme Court decisions after Bowers striking down the state’s antisodomy law and ordering access to benefits for same-sex couples.184 In Gryczan v. State, Lambda Legal and the ACLU challenged Montana’s antisodomy statute on state constitutional grounds.185 The Montana Supreme Court distinguished the Montana Constitution’s explicit protection for privacy from the Federal Constitution’s implicit protection and emphasized “that Montana’s Constitution affords citizens broader protection of their right to privacy than does the federal constitution.”186 The decision, of course, was not reviewable by the Supreme Court.

The Gryczan decision created an important precedent for eventual litigation over domestic-partner benefits. In Snetsinger v. Montana University System, Lambda Legal and the ACLU challenged the lack of health-insurance coverage for university employees’ same-sex partners.187 Once again, the Montana Supreme Court ruled in the plaintiffs’ favor, observing that the Montana Constitution “provides even more individual protection than the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution.”188

In the current moment, the Montana state courts have been addressing a state constitutional challenge, litigated by the ACLU and Lambda Legal, to the state’s ban on gender-affirming care for minors. In Cross v. State, the trial court granted a preliminary injunction against the law’s enforcement, and the Montana Supreme Court affirmed.189 Quoting Gryczan, the state supreme court remarked on the state constitution’s explicit protection for privacy: “That the right to privacy is separately protected in the Montana Constitution ‘reflects Montanans historical abhorrence and distrust of excessive governmental interference in their personal lives.’”190 Relying on another state-court precedent, the court observed that “the Legislature generally has no interest in restricting ‘an individual’s fundamental privacy right to obtain a particular lawful medical procedure from a health care provider that has been determined by the medical community to be competent to provide that service and who has been licensed to do so.’”191

When the trial court proceeded to adjudicate the merits, it granted summary judgment to the plaintiffs. In ruling that the ban impermissibly infringed the rights of minors in Montana, the court drew on a unique state constitutional provision guaranteeing “fundamental rights” to “persons under 18 years of age.”192 As the Montana Supreme Court had found, “minors have the same fundamental rights as adults” under the state constitution.193 Quoting Snetsinger, the earlier domestic-partner-benefits decision, the trial court explained that “the Montana Constitution provides even more individual protection than the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution.”194 Just a month before the Supreme Court subjected Tennessee’s law to rational-basis review in Skrmetti, the state court found that the Montana law must be subjected to strict scrutiny under the state constitution. The court found that the law infringed the right to privacy, discriminated based on sex, and discriminated based on transgender status, which the court treated as a suspect classification.195 The Montana Supreme Court could review the trial court’s decision, but that is where any appeal stops.

Obviously, the wins in Ohio and Montana are relatively limited. They are surely more limited than a victory in Skrmetti would have been. They directly affect only the bans in the specific states. At the same time, a loss in Ohio or Montana would also be relatively limited—again, surely more limited than the defeat in Skrmetti.

Conclusion

The analysis of Skrmetti suggests that winning through losing is, and should be, considered as part of the analysis of whether and how to litigate in the first place. Clearly, this is not a straightforward assessment. Social change is a dynamic, contingent, and unpredictable process. Nothing I have said suggests that advocates face obvious or clear-cut choices. Neither outcomes nor the decisions of other actors can be known with certainty. At the same time, the prospect of winning through losing should not insulate decisions about whether and how to litigate from scrutiny and criticism.

The main point is that winning through losing is contingent on several factors—many of which advocates can, and should, identify and assess at the outset, before litigation. These factors may very well lead savvy advocates simply not to litigate in the first place. Or advocates may litigate in a relatively limited fashion, attempting to avoid federal courts, federal claims, and Supreme Court review. None of this is to suggest that court-centered strategies are “bad” and nonlitigation strategies are “good.” Rather, litigation remains an important tool in movement work—a tool that sophisticated advocates deploy in connection with other tactics aimed at nonjudicial actors.196 Only when litigation is part of such a multidimensional approach might we expect litigation loss to be put to productive use. Only then might advocates be able to leverage litigation loss in ways that motivate legislatures, the executive branch, and the public to act. In this way, winning through losing depends on an approach to law and social change that is not court centered. From this perspective, decisions regarding whether and how to litigate can always be scrutinized. They are never costless.

Anne Urowsky Professor of Law, Yale Law School. For helpful comments, I thank Jessica Clarke, Chip Lupu, Naomi Schoenbaum, and Reva Siegel. For research assistance, I thank Jordan Cozby, Aidi Fan, Jesse Friedson, and Jacob Hervey. I also thank the editors of the Yale Law Journal Forum, especially Hannah Berkman and Gila Glattstein.