Symposium

Wonderland Sentencing: Therapeutic Perspectives on Pretrial Provisional Sentences

In Alice’s Adventures in Wonderland, the Knave of Hearts is accused of stealing tarts. The Queen of Hearts insists that they should “[s]entence [the Knave] first” and hear the verdict afterwards. Alice derides “[t]he idea of having the sentence first” because, of course, nothing would be more absurd. In this Essay, I defend that absurd idea, at least provisionally.

While we certainly should not punish someone prior to conviction, we should carefully consider the benefits of “wonderland sentencing,” in which those accused of crimes are given provisional sentences prior to the decision to proceed to trial. Doing so enables defendants to make better informed, fairer decisions about whether and under what circumstances to plead guilty. The proposal supports goals of therapeutic jurisprudence by (1) reducing prosecutorial leverage that many legal scholars consider both excessive and a cause of disproportional sentencing; (2) allowing defendants to be and feel heard by an impartial judge; and (3) providing defendants better information about their future sentencing liability, not only as it affects plea decisions, but also as it affects the very stressful period before their cases are resolved.

We give defendants very limited information prospectively about punishments for various crimes. Wonderland sentences would help correct our general failure to provide advance notice of the consequences of criminal conduct. While wonderland sentencing is just one of many therapeutic policy changes we could implement, given that approximately ninety-five percent of non-dismissed cases are resolved by plea bargains, wonderland sentencing has the potential to do a lot of good for a lot of people.

Introduction

In Alice’s Adventures in Wonderland, the Knave of Hearts is accused of stealing tarts.1 1.Lewis Carroll, Alice’s Adventures in Wonderland 165–66 (London, MacMillan & Co. 1866).Show More The Queen of Hearts insists that they should “[s]entence [the Knave] first” and hear the verdict afterwards.2 2.Id. at 187.Show More Alice derides “[t]he idea of having the sentence first” in an exchange scholars frequently cite to illustrate an extraordinarily absurd attempt at justice.3 3.Id.; see, e.g., Charles H. Gustafson, Judicial Review of Jeopardy Tax Collection: Sentence First, Verdict Afterwards, 26 Case W. Rsrv. L. Rev. 315, 315–16, 315 n.* (1976); Robert S. Pasley, Sentence First—Verdict Afterwards: Dishonorable Discharges Without Trial by Court-Martial?, 41 Corn. L.Q. 545, 545–47 (1956).Show More In this Essay, I defend it (at least provisionally).

Of course, we shouldn’t punish anyone prior to conviction.4 4.But cf. Saul Smilansky,Determinism and Prepunishment: The Radical Nature of Compatibilism, 67 Analysis 347, 347–48 (2007) (arguing that the compatibilist view of free will held by many philosophers leads to the conclusion that we ought to pre-punish).Show More But there is much to be said for what I call “wonderland sentencing,” in which those accused of crimes are told, prior to deciding whether to plead guilty, what their sentence would likely be if convicted at trial. Doing so could enable defendants to make better informed, fairer, and more socially advantageous decisions about whether and under what circumstances to plead guilty.

There are many possible variations on wonderland sentencing. My goal isn’t to settle the details of one particular approach. Rather, I lay out the benefits of wonderland sentencing in general terms and then consider several ways to fill in the details, keeping in mind that any particular approach will have to coordinate with the varied sentencing laws in existing jurisdictions.

The impetus for wonderland sentencing comes from what is typically the most important decision defendants must make about their cases: whether to plead guilty in exchange for a lighter sentence. The decision can be extraordinarily difficult because defendants have limited relevant information. For example, they don’t know exactly what evidence the prosecution would introduce or how convincing it would be to potential jurors. They also don’t know how well their own witnesses would testify on their behalf.

Most importantly, however, even if defendants knew all the information that would be revealed at trial, they would still lack critical information about sentence severity. In many jurisdictions, judges have wide sentencing discretion, leaving defendants uncertain about how long their sentences are likely to be.5 5.See, e.g., United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987) (recognizing the broad sentencing discretion typically afforded to judges in non-guideline jurisdictions).Show More In others, there may be sentencing guidelines that limit judicial discretion.6 6.See, e.g., 18 U.S.C. § 3553(b)(1) (advising federal courts to ordinarily impose a sentence within the guideline range); Minn. Sent’g Guidelines & Comment. § 1.A (Minn. Sent’g Guidelines Comm’n 2024).Show More But even in those jurisdictions, judges still have significant sentencing discretion and are often called upon to interpret sentencing guidelines or the application of maxima and minima in ways that are hard for defense counsel to predict.7 7.Cf. United States v. Booker, 543 U.S. 220, 245, 250–51 (2005) (holding the federal sentencing guidelines to be advisory and emphasizing the importance of judicial discretion).Show More

Even when extraordinarily harsh sentences are unlikely, they can still weigh on a defendant’s decision-making.8 8.There is evidence in many domains, including mock criminal justice contexts, that vividly presented numbers can anchor people’s estimates and preferences. See, e.g., Stephanie A. Cardenas, Charged Up and Anchored Down: A Test of Two Pathways to Judgmental and Decisional Anchoring Biases in Plea Negotiations, 29 Psych. Pub. Pol’y & L. 435, 435–36 (2023) (discussing how the willingness to plead guilty or recommend guilty pleas of mock defendants and defense attorneys can be anchored by harsh potential sentences); Roland Imhoff & Christoph Nickolaus, Combined Anchoring: Prosecution and Defense Claims as Sequential Anchors in the Courtroom, 26 Legal & Criminological Psych. 215, 215, 223–24 (2021) (finding that law student experimental subjects were anchored in their mock sentencing determinations by the recommendations of both the prosecution and the defense).Show More For example, in 2024, Maine doctor Merideth Norris was found guilty of overprescribing painkillers.9 9.Shawn P. Sullivan, Kennebunk Doctor Convicted on Multiple Counts of Illegally Distributing Opioids, Portsmouth Herald (June 24, 2024, at 11:23 ET), https://www.seacoasto‌nline.com/story/news/local/york-star/2024/06/24/kennebunk-maine-doctor-merideth-norris-c‌onvicted-of-unlawfully-distributing-opioids/74191342007/ [https://perma.cc/K6LG-CPLC].Show More She was convicted on fifteen counts of unlawfully distributing controlled substances and faced a maximum of twenty years’ incarceration on each count.10 10.Id.Show More Predictably, Dr. Norris was said to face up to three hundred years’ incarceration.11 11.Id.Show More When she was ultimately sentenced, however, she received no prison time.12 12.Emily Allen, Kennebunk Doctor Will Not Serve Prison Time for Overprescribing Opioids, Portland Press Herald (May 16, 2025), https://www.pressherald.com/2025/05/15/ken‌nebunkport-doctor-will-not-serve-jail-time-for-overprescribing-opioids [https://perma.cc/7G‌4M-4C9R].Show More

In reality, Dr. Norris was never going to spend three hundred years incarcerated, and almost certainly, her attorney gave her more realistic estimates. But defendants can be traumatized simply by hearing that they face such extreme sentences. Federal judges are required to notify defendants of the maximum sentence they face under the law, but not the sentence the judge expects to assign or the sentence she considers the highest she would be likely to assign if the case were to proceed to a verdict at trial.13 13.See Fed. R. Crim. P. 11(b)(1)(H).Show More Knowledge of theoretical sentencing maxima may be particularly influential and misleading when clients distrust their often court-appointed attorneys. Moreover, even with attorney estimates, defendants may face wide plausible sentencing ranges.

Prosecutors pressure defendants to plead guilty not only by threatening long sentences but also by making strategic use of uncertainty. Rational choice theory suggests that the uncertainty of sentences will drive risk-averse defendants to plead guilty to avoid trial. The more risk-averse the defendant, the more we expect risk to drive guilty pleas. Moreover, given that risk tolerance is associated with criminal and other antisocial behaviors,14 14.SeeTim Friehe & Hannah Schildberg-Hörisch, Predicting Norm Enforcement: The Individual and Joint Predictive Power of Economic Preferences, Personality, and Self-Control, 45 Eur. J.L. & Econ. 127, 137–38 (2018); see also Thomas Epper et al., Preferences Predict Who Commits Crime Among Young Men, PNAS, Jan. 31, 2022, at 1, 5 (finding a statistically significant positive correlation between risk tolerance and criminality for property crimes, though not for violent, drug, or sexual crimes).Show More greater uncertainty at sentencing is likely to put more pressure on prosocial defendants to plead guilty than antisocial defendants—precisely the opposite of the direction we seek. Since prosocial defendants are less likely to be guilty than antisocial defendants as a general rule, uncertainty at sentencing has the perverse effect of pushing innocent defendants to plead guilty with greater force than it pushes guilty defendants to do the same.15 15.See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1948–49 (1992).Show More Wonderland sentencing provides a way to make sentences fairer and reduce erroneous convictions by allowing defendants to make less risky, better informed decisions about whether to plead guilty.

Imagine if we lived in a world of wonderland sentencing, where defendants made plea bargaining decisions with relatively accurate potential sentence information. In such a world, I suspect, a proposal to eliminate wonderland sentencing and hide such information from defendants would strike us as about as absurd as the Queen of Hearts’s proposal. And unlike some prior proposals to give judges a larger role in plea processes,16 16.See, e.g., Daniel S. McConkie, Judges as Framers of Plea Bargaining, 26 Stan. L. & Pol’y Rev. 61, 65 (2015).Show More wonderland sentencing is unlikely to offend rules against judicial participation in plea bargaining. In fact, there may be no legal impediments to the implementation of wonderland sentencing; judges could start the process today, and it probably already occurs from time to time.

In Part I, I discuss in more detail how wonderland sentencing could work. In Part II, I analyze wonderland sentencing from traditional retributivist and consequentialist perspectives. I also discuss how those perspectives could be modified to address what I call “therapeutic retributivism” and “therapeutic consequentialism.” I conclude that while it is too soon to decide that wonderland sentencing will necessarily improve the criminal legal system, we have more than enough reason to pilot studies to gather more information.

  1.  Lewis Carroll, Alice’s Adventures in Wonderland 165–66 (London, MacMillan & Co. 1866). ↑
  2.  Id. at 187. ↑
  3.  Id.; see, e.g., Charles H. Gustafson, Judicial Review of Jeopardy Tax Collection: Sentence First, Verdict Afterwards, 26 Case W. Rsrv. L. Rev. 315, 315–16, 315 n.* (1976); Robert S. Pasley, Sentence First—Verdict Afterwards: Dishonorable Discharges Without Trial by Court-Martial?, 41 Corn. L.Q. 545, 545–47 (1956). ↑
  4.  But cf. Saul Smilansky, Determinism and Prepunishment: The Radical Nature of Compatibilism, 67 Analysis 347, 347–48 (2007) (arguing that the compatibilist view of free will held by many philosophers leads to the conclusion that we ought to pre-punish). ↑
  5.  See, e.g., United States v. Jackson, 835 F.2d 1195, 1197 (7th Cir. 1987) (recognizing the broad sentencing discretion typically afforded to judges in non-guideline jurisdictions). ↑
  6.  See, e.g., 18 U.S.C. § 3553(b)(1) (advising federal courts to ordinarily impose a sentence within the guideline range); Minn. Sent’g Guidelines & Comment. § 1.A (Minn. Sent’g Guidelines Comm’n 2024). ↑
  7.  Cf. United States v. Booker, 543 U.S. 220, 245, 250–51 (2005) (holding the federal sentencing guidelines to be advisory and emphasizing the importance of judicial discretion). ↑
  8.  There is evidence in many domains, including mock criminal justice contexts, that vividly presented numbers can anchor people’s estimates and preferences. See, e.g., Stephanie A. Cardenas, Charged Up and Anchored Down: A Test of Two Pathways to Judgmental and Decisional Anchoring Biases in Plea Negotiations, 29 Psych. Pub. Pol’y & L. 435, 435–36 (2023) (discussing how the willingness to plead guilty or recommend guilty pleas of mock defendants and defense attorneys can be anchored by harsh potential sentences); Roland Imhoff & Christoph Nickolaus, Combined Anchoring: Prosecution and Defense Claims as Sequential Anchors in the Courtroom, 26 Legal & Criminological Psych. 215, 215, 223–24 (2021) (finding that law student experimental subjects were anchored in their mock sentencing determinations by the recommendations of both the prosecution and the defense). ↑
  9.  Shawn P. Sullivan, Kennebunk Doctor Convicted on Multiple Counts of Illegally Distributing Opioids, Portsmouth Herald (June 24, 2024, at 11:23 ET), https://www.seacoasto‌nline.com/story/news/local/york-star/2024/06/24/kennebunk-maine-doctor-merideth-norris-c‌onvicted-of-unlawfully-distributing-opioids/74191342007/ [https://perma.cc/K6LG-CPLC]. ↑
  10.  Id. ↑
  11.  Id. ↑
  12.  Emily Allen, Kennebunk Doctor Will Not Serve Prison Time for Overprescribing Opioids, Portland Press Herald (May 16, 2025), https://www.pressherald.com/2025/05/15/ken‌nebunkport-doctor-will-not-serve-jail-time-for-overprescribing-opioids [https://perma.cc/7G‌4M-4C9R]. ↑
  13.  See Fed. R. Crim. P. 11(b)(1)(H). ↑
  14.  See Tim Friehe & Hannah Schildberg-Hörisch, Predicting Norm Enforcement: The Individual and Joint Predictive Power of Economic Preferences, Personality, and Self-Control, 45 Eur. J.L. & Econ. 127, 137–38 (2018); see also Thomas Epper et al., Preferences Predict Who Commits Crime Among Young Men, PNAS, Jan. 31, 2022, at 1, 5 (finding a statistically significant positive correlation between risk tolerance and criminality for property crimes, though not for violent, drug, or sexual crimes). ↑
  15.  See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1948–49 (1992). ↑

  16.  See, e.g., Daniel S. McConkie, Judges as Framers of Plea Bargaining, 26 Stan. L. & Pol’y Rev. 61, 65 (2015). ↑

Medicaid Act Protections for Gender-Affirming Care

Introduction

As of June 2024, ten states explicitly and categorically exclude coverage of gender-affirming care (“GAC”)1 1.GAC is not just treatment for transgender people; it is also sought by cisgender patients. See Theodore E. Schall & Jacob D. Moses, Gender-Affirming Care for Cisgender People, 53 Hastings Ctr. Rep. 15, 16, 20–21 (2023), https://doi.org/10.1002/hast.1486 [https://perma.cc/L‌QA4-EY84]. However, for the sake of clarity, in this Essay “GAC” and/or “gender-affirming treatments” refer to treatments for transgender patients.Show More for transgender Medicaid beneficiaries of all ages.2 2.Healthcare Laws and Policies: Medicaid Coverage for Transgender-Related Health Care, Movement Advancement Project, https://www.lgbtmap.org/img/maps/citations-medicaid.pdf [https://perma.cc/42RD-CNGA] [hereinafter Medicaid Coverage Map] (last updated May 21, 2024).Show More Another two states exclude coverage for transgender minor beneficiaries but presumably approve medically necessary treatment for adults.3 3.Id.Show More Coverage policies are unclear or not explicit in another eleven states and four U.S. territories.4 4.Id.Show More In total, at least twelve states5 5.Id. Exclusions that were blocked by federal courts are pending further litigation in four states: Arkansas, Florida, North Carolina, and West Virginia. Id.Show More deny medically necessary GAC based solely on the diagnosis for which beneficiaries seek treatment: gender dysphoria. Yet several states provide coverage to cisgender beneficiaries for the same gender-affirming procedures to treat other diagnoses.6 6.See, e.g., Kadel v. Folwell, 100 F.4th 122, 140 (4th Cir. 2024) (finding that West Virginia’s Medicaid program covers many GAC procedures for diagnoses other than gender dysphoria). See generally Dannie Dai et al., Prevalence of Gender-Affirming Surgical Procedures Among Minors and Adults in the US, 7 JAMA Network Open 2 (2024) (the majority of gender-affirming surgeries are chest-related procedures, and the majority of those are performed on cisgender males).Show More These exclusions violate the Medicaid Act’s (the “Act”) availability and comparability requirements, which mandate equality of coverage for medically necessary treatments without discrimination on the basis of diagnosis, type of illness, or condition.7 7.42 U.S.C.A. § 1396a(a)(10)(A)–(B) (West 2024); see Cruz v. Zucker, 116 F. Supp. 3d 334, 343–45 (S.D.N.Y. 2015).Show More Over the past decade, at least five courts heard challenges to GAC exclusions and held that they violate the Act because GAC is the consensus treatment for gender dysphoria and is medically necessary.8 8.See infra Section III.B. See generally Medical Organization Statements, Advocs. for Trans Equal., https://transhealthproject.org/resources/medical-organization-statements/ [https://per‌ma.cc/2U2S-EKKP] (last visited Sept. 27, 2024) (listing thirty major U.S. and global medical associations and societies endorsing the medical necessity of GAC).Show More To the Author’s knowledge, no court has held otherwise during that time. At the time of writing, a petition for a writ of certiorari on the issue is pending before the Supreme Court.9 9.Petition for Writ of Certiorari, Crouch v. Anderson, No. 24-90 (U.S. July 25, 2024).Show More

Exclusions differ in form between jurisdictions. Some states exclude coverage statutorily, some through agency regulations or guidance, and still others through shadow bans, unpromulgated policies generally known only within state Medicaid medical review offices.10 10.Christy Mallory & Will Tentindo, Williams Inst., UCLA Sch. of L., Medicaid Coverage for Gender Affirming Care 3–4 (2022).Show More Regardless of the form, these exclusions violate the Act.11 11.See infra Section III.B.Show More

Two issues are at the heart of these cases. A challenger must show that coverage for the categorically excluded treatment falls under a mandatory service category in the Act or that the state covers the treatment for diagnoses other than gender dysphoria. Upon that showing, the first issue is whether the excluded GAC treatment is medically necessary for the treatment of gender dysphoria. The second is whether the exclusion is a legitimate utilization control procedure.

This Essay proceeds in three Parts. First, it reviews the history of GAC coverage in state Medicaid plans. Second, it describes the availability and comparability jurisprudence requiring coverage of medically necessary care and equality of benefits. Third, it analyzes cases applying that jurisprudence in challenges to GAC exclusions, demonstrating a unanimous trend of finding the exclusions unlawful under the Act. While the Supreme Court is expected to decide only the broader issue of whether GAC bans violate the Equal Protection Clause of the Fourteenth Amendment in its anticipated United States v. Skrmetti opinion,12 12.L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 491 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024).Show More the Medicaid Act framework and reasoning should be part of that broader consideration, as it demonstrates the arbitrariness of GAC bans regardless of whether transgender people are a suspect class entitled to heightened scrutiny.

  1.  GAC is not just treatment for transgender people; it is also sought by cisgender patients. See Theodore E. Schall & Jacob D. Moses, Gender-Affirming Care for Cisgender People, 53 Hastings Ctr. Rep. 15, 16, 20–21 (2023), https://doi.org/10.1002/hast.1486 [https://perma.cc/L‌QA4-EY84]. However, for the sake of clarity, in this Essay “GAC” and/or “gender-affirming treatments” refer to treatments for transgender patients. ↑
  2.  Healthcare Laws and Policies: Medicaid Coverage for Transgender-Related Health Care
    ,

    Movement Advancement Project, https://www.lgbtmap.org/img/maps/citations-medicaid.pdf [https://perma.cc/42RD-CNGA] [hereinafter Medicaid Coverage Map] (last updated May 21, 2024). ↑

  3.  Id. ↑
  4.  Id. ↑
  5.  Id. Exclusions that were blocked by federal courts are pending further litigation in four states: Arkansas, Florida, North Carolina, and West Virginia. Id. ↑
  6.  See, e.g., Kadel v. Folwell, 100 F.4th 122, 140 (4th Cir. 2024) (finding that West Virginia’s Medicaid program covers many GAC procedures for diagnoses other than gender dysphoria). See generally Dannie Dai et al., Prevalence of Gender-Affirming Surgical Procedures Among Minors and Adults in the US, 7 JAMA Network Open 2 (2024) (the majority of gender-affirming surgeries are chest-related procedures, and the majority of those are performed on cisgender males). ↑
  7.  42 U.S.C.A. § 1396a(a)(10)(A)–(B) (West 2024); see Cruz v. Zucker, 116 F. Supp. 3d 334, 343–45 (S.D.N.Y. 2015). ↑
  8.  See infra Section III.B. See generally Medical Organization Statements, Advocs. for Trans Equal., https://transhealthproject.org/resources/medical-organization-statements/ [https://per‌ma.cc/2U2S-EKKP] (last visited Sept. 27, 2024) (listing thirty major U.S. and global medical associations and societies endorsing the medical necessity of GAC). ↑
  9.  Petition for Writ of Certiorari, Crouch v. Anderson, No. 24-90 (U.S. July 25, 2024). ↑
  10.  Christy Mallory & Will Tentindo, Williams Inst., UCLA Sch. of L., Medicaid Coverage for Gender Affirming Care 3–4 (2022). ↑
  11.  See infra Section III.B. ↑

  12.  L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 491 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024). ↑

Congressional Enforcement of Transgender Rights: Remedying Anti-Transgender Constitutional Harms Under the Enforcement Clause

Introduction

Over the past five years, trans Americans have faced a number of intrusions on their rights. States across the country have enacted laws that “bar trans participation on sports teams, ban the use of bathrooms consistent with one’s gender identity, prevent access to accurate identification documents, prohibit drag shows, prevent the discussion of queer identities in public schools, and ban queer books.”1 1.Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev. 965, 968 (2024).Show More Perhaps the most harmful and widespread of these laws are those banning trans youth from accessing gender-affirming care.2 2.See Kiara Alfonseca, Record Number of Anti-LGBTQ Legislation Filed in 2023, ABC News (Dec. 28, 2023, 5:59 AM), https://abcnews.go.com/US/record-number-anti-lgbtq-legis‌lationfiled-2023/story?id=105556010 [https://perma.cc/2VBX-K8F2] (“The vast majority of legislation passed across the country has impacted gender-affirming care for minors . . . .”); Christy Mallory & Elana Redfield, Williams Inst., UCLA Sch. of L., The Impact of 2023 Legislation on Transgender Youth 1, 4 (2023), https://williamsinstitute.law.ucla.edu/wp-cont‌ent/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/4X35-CQJQ].Show More Going through puberty is a difficult experience for any adolescent. But for trans youth, the experience can be excruciating. Without access to gender-affirming care, trans youth may face “severe mental health problems, including depression, social anxiety, and suicidal thoughts and behavior.”3 3.Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2168 (2021).Show More Thus, “[e]very major medical association and leading world health authority supports health care for transgender people and youth.”4 4.GLAAD, Medical Association Statements in Support of Health Care for Transgender People and Youth (June 26, 2024), https://glaad.org/medical-association-statements-supportin‌g-trans-youth-healthcare-and-against-discriminatory/ [https://perma.cc/4X38-T72T].Show More

Under current law, even if these gender-affirming care bans are found to be unconstitutional, trans youth will have no remedy for the harms they face until the laws are struck down. States enjoy sovereign immunity from most actions seeking monetary relief.5 5.See, e.g., Hans v. Louisiana, 134 U.S. 1, 21 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53 (1996).Show More With sovereign immunity in place, the only remedy available is prospective relief preventing the states from engaging in future unconstitutional conduct.6 6.See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury.” (citations omitted)).Show More Trans youth must therefore bear the costs of puberty, and of reversing the changes that puberty causes, on their own.7 7.Id.Show More

By enacting and enforcing anti-trans measures, however, states have opened the door—and their wallets—for congressional intervention. This Essay argues that, because the recent proliferation of anti-trans legislation amounts to violations of the Fourteenth Amendment’s substantive provisions, the states have invited Congress to exercise its power under the Enforcement Clause to abrogate states’ sovereign immunity. Using this power, Congress may permit trans people to, at a minimum, seek monetary relief for harms caused by unconstitutional bans on gender-affirming care.8 8.See infra Part II.Show More

Legislation under the Enforcement Clause to enforce the rights of trans people would not come without challenges.9 9.Id.Show More For example, the Supreme Court recently heard a challenge to bans on gender-affirming care for minors under the Fourteenth Amendment’s Equal Protection Clause. In United States v. Skrmetti, the Supreme Court will determine whether laws banning transgender youth from accessing gender-affirming care constitute unlawful sex or transgender status discrimination under the Equal Protection Clause.10 10.See L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom United States v. Skrmetti, 144 S. Ct. 2679 (2024); Petition for a Writ of Certiorari at I, United States v. Skrmetti, No. 23-477 (U.S. Nov. 6, 2023).Show More Depending on the outcome of Skrmetti, Congress’s power under the Enforcement Clause to enforce the rights of trans people may become much broader and powerful than it is now, or it may become more ambiguous and narrower. No matter the outcome of Skrmetti, however, the wave of anti-trans legislation throughout the nation is sufficient to enact some Enforcement Clause legislation.

Notwithstanding any difficulties Enforcement Clause legislation might face, Congress should seek to enact legislation enforcing the rights of trans people anyway. Enforcement Clause legislation would require the states, rather than trans people, to bear the cost of any constitutional violations. Similarly, Enforcement Clause legislation would deter states from enacting unconstitutional anti-trans legislation by opening the states to financial liability any time they cross the constitutional line.11 11.Cf. Russell M. Gold, Compensation’s Role in Deterrence, 91 Notre Dame L. Rev. 1997, 2003–07 (2016) (articulating the role of damages in deterring private actors from committing wrongdoing).Show More And, as a coequal branch of government, Congress should seek to exercise its Enforcement Clause power to participate in the process of defining the rights guaranteed by the Fourteenth Amendment and to preserve the Enforcement Clause power into the future.

The Essay proceeds as follows. Part I examines Congress’s power to abrogate state sovereign immunity under the Fourteenth Amendment’s Enforcement Clause. Part II addresses the potential avenues Congress will have for Enforcement Power legislation after Skrmetti. Part III addresses why Congress should enact legislation abrogating sovereign immunity in response to anti-trans legislation.

  1.  Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev
    .

    965, 968 (2024). ↑

  2.  See Kiara Alfonseca, Record Number of Anti-LGBTQ Legislation Filed in 2023, ABC News (Dec. 28, 2023, 5:59 AM), https://abcnews.go.com/US/record-number-anti-lgbtq-legis‌lationfiled-2023/story?id=105556010 [https://perma.cc/2VBX-K8F2] (“The vast majority of legislation passed across the country has impacted gender-affirming care for minors . . . .”); Christy Mallory & Elana Redfield, Williams Inst., UCLA Sch. of L., The Impact of 2023 Legislation on Transgender Youth 1, 4 (2023), https://williamsinstitute.law.ucla.edu/wp-cont‌ent/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/4X35-CQJQ]. ↑
  3.  Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2168 (2021). ↑
  4.  GLAAD, Medical Association Statements in Support of Health Care for Transgender People and Youth (June 26, 2024), https://glaad.org/medical-association-statements-supportin‌g-trans-youth-healthcare-and-against-discriminatory/ [https://perma.cc/4X38-T72T]. ↑
  5.  See, e.g., Hans v. Louisiana, 134 U.S. 1, 21 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53 (1996). ↑
  6.  See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury.” (citations omitted)). ↑
  7.  Id. ↑
  8.  See infra Part II. ↑
  9.  Id. ↑
  10.  See L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom United States v. Skrmetti, 144 S. Ct. 2679 (2024); Petition for a Writ of Certiorari at I, United States v. Skrmetti, No. 23-477 (U.S. Nov. 6, 2023). ↑

  11.  Cf. Russell M. Gold, Compensation’s Role in Deterrence, 91 Notre Dame L. Rev

    . 1997, 2003–07 (2016) (

    articulating the role of damages in deterring private actors from committing wrongdoing). ↑

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