For the third time in the last year, the Supreme Court turned away an opportunity to make life much worse for trans youth.
For the third time in the last year, the Supreme Court unexpectedly turned away a case asking it to diminish the rights of young transgender Americans in much of the country.
On Tuesday, the Court announced that it would not hear Metropolitan School District v. A.C., a case asking whether public school districts may require transgender students to use bathrooms that align with their sex assigned at birth, as opposed to their gender identity.
In A.C., the United States Court of Appeals for the Seventh Circuit ruled in favor of three trans students — so these students may use the bathroom that aligns with their identity. Because the Supreme Court decided not to hear this case, this Seventh Circuit ruling will stand, at least for now. The Seventh Circuit has jurisdiction over federal legal disputes in Illinois, Indiana, and Wisconsin.
The Court turned this case away, moreover, despite the fact that it fits the criteria the justices normally use to decide which cases to hear. Among other things, the question of whether trans students have a right to use the bathroom that aligns with their gender identity has divided federal appeals courts, and the Supreme Court frequently steps in to resolve such disagreements.
The anti-trans side was also represented by Republican super-lawyer Paul Clement, a former US Solicitor General who has an unusual amount of influence over the Court’s right flank.
A.C. is also the second time in just over a month that the Court walked away from a major LGBTQ rights dispute that divided lower court judges. In December, the Court also announced that it would not hear Tingley v. Ferguson, a case challenging Washington state’s restrictions on “conversion therapy” — a technique that tries to turn LGBTQ patients into cisgender heterosexuals or prevent them from expressing their actual sexual orientation or gender identity.
As the lower court that upheld Washington’s restrictions noted in its opinion, “every major medical, psychiatric, psychological, and professional mental health organization opposes the use of conversion therapy.”
Additionally, last April — in a case called West Virginia v. B.P.J. — the Court decided not to kick a transgender student off of her middle school girl’s cross-country team. A lower court had blocked a West Virginia state law forbidding her from competing with other girls, and the Supreme Court rejected a request to temporarily reinstate that law while the case is being litigated. (This case could potentially reach the justices again in the future.)
These decisions are surprising for three reasons. One is that Republican appointees control six of the nine seats on the Supreme Court, and this Court is often exceedingly sympathetic to concerns raised by the religious right. Just last June, for example, the Court ruled that a conservative Christian website designer has a constitutional right to discriminate against LGBTQ customers.
Both A.C. and Tingley, moreover, satisfied the ordinary criteria the justices use to determine which cases to hear. In both cases, lower courts have divided on what federal law has to say about LGBTQ rights.
And, on top of all of this, in all three cases, the anti-LGBTQ side raised a plausible argument that existing law supports their preferred outcome. The Tingley case turns on contradictory language in a 2018 Supreme Court decision, which can be read to support either outcome in Tingley. Meanwhile, the A.C. and B.P.J. cases raise questions that the Court left open in its landmark LGBTQ rights decision in Bostock v. Clayton County (2020).
It sure appears, in other words, that the Court is running scared from transgender rights cases, at least for the moment.
Trans rights cases involving bathrooms and sports raise particularly challenging questions under current law
Bostock asked whether a federal law that forbids “sex” discrimination in the workplace also forbids discrimination against LGBTQ people. Six justices concluded that it does, and the Court held that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” If an employer fires a male employee for dating a man, for example, but permits female employees to date men, then that’s just ordinary sex discrimination because this employer permits women to do something that men may not.
Similarly, Bostock held that if an employer penalizes an “employee who was identified as female at birth” for presenting as a man or otherwise engaging in stereotypically male behavior, but does not penalize “a person identified as male at birth” for the same actions, that is also sex discrimination forbidden by federal law.
While this was a historic victory for transgender rights, it also left unresolved one of the most important questions that arises in such cases: whether the concept of “gender” exists separately, as a legal matter, from “status as either male or female [as] determined by reproductive biology.” Indeed, Bostock was decided “on the assumption that” the term “sex” refers exclusively to “biological distinctions between male and female.”
And yet, even if you assume that the law refers only to “biological” sex, Bostock still concluded that most forms of discrimination against trans people violate that law because they necessarily require treating men (or people assigned male at birth) differently than women (or people assigned female at birth).
Federal law, however, also permits sex discrimination in certain limited circumstances. The law forbidding sex discrimination in most educational facilities, for example, permits those facilities to maintain “separate living facilities for the different sexes.” Federal regulations also permit schools to have “separate toilet, locker room, and shower facilities on the basis of sex,” as long as the facilities “provided for students of one sex [are] comparable to such facilities provided for students of the other sex.”
Similarly, federal bans on sex discrimination have long been understood to permit sex-segregated sports teams — otherwise, women-only teams could not exist.
Cases like A.C. and B.P.J., in other words, raise a question that was not resolved in Bostock. Bostock was agnostic on whether a trans man is a man. In order to decide the A.C. case, by contrast, the Seventh Circuit had to resolve “who counts as a ‘boy’ for the boys’ rooms, and who counts as a ‘girl’ for the girls’ rooms.”
If you want a deeper dive into the legal arguments for and against requiring schools to treat trans girls just like any other girl (or trans boys just like any other boy), I wrote that deeper dive here. For now, I will simply add that the Supreme Court appears determined not to resolve this question, even though lower courts are divided on how it should be answered.
The pollsters got Iowa spot on. That means trouble for Trump’s rivals.
Donald Trump’s resounding victory in the 2024 Iowa caucuses should have been expected by just about everyone. You could have seen it coming based on his fundraising numbers, his campaign’s presence in the state, his refusal to debate his primary opponents — or you could have looked at just about any poll.
Since 2016 (and 2020), however, there’s been some apprehension about trusting polls. And even though the state-level polls were generally more accurate in the 2022 midterms than conventional wisdom holds, recent discourse about national polling of a Trump-Biden rematch has reignited those concerns.
Trump led the Republican field for the last year, hovering at about 50 percent in most polls in Iowa as far back as May 2023. And his final vote share, of 51 percent of the vote, is right in line with what most polls expected. And it’s not just Trump. Once all the votes were counted, it looks like the polling of Iowa was pretty accurate in the runup to Monday night’s caucuses. The topline numbers are nearly identical to the final results. And for that to be true in Iowa, with its fickle weather, low turnout, and tedious caucus system, is a victory for pollsters, despite the widespread skepticism over public polling since 2016.
Primary polling across the country historically tends to be pretty inaccurate, G. Elliott Morris, a data journalist and the editorial director of data analytics at ABC News’s FiveThirtyEight, told me. “Not just in Iowa, but they tend to be off on average 7 points. So for any given candidate, their vote share is 7 points different from their polls, going back to 1999 or so. In reality, it might be a bit bigger.”
But looking at the mean average error (MAE), the average disparity between the polls and the final results, for the top three candidates — Trump, Florida Gov. Ron DeSantis, and former South Carolina Gov. Nikki Haley — that gap was just 2.3 points, by Morris’s calculations. “You can round that down to 2 if you want to be optimistic, but right off the bat, the top lines were a lot more accurate this year compared to the average primary, and even more accurate than the average Iowa caucus.”
Historically, Iowa caucus polling tends to be all over the place, reflecting the specific difficulties of polling in Iowa. The state’s voting population is rather small (about 2 million people), turnout rates tend to be even smaller, weather can always throw a wrench into the actual caucus day, and the caucus process can give an edge to candidates benefiting from enthusiastic supporters.
Beyond Trump, the individual polls were pretty close to the final vote totals for DeSantis and Haley. Take the highest-profile polling operation of the caucus: the famed Iowa Poll, conducted by the highly respected pollster Ann Selzer in conjunction with the Des Moines Register, NBC News, and Mediacom. Its last two polls, conducted in December and early January, showed a pretty stable picture after an early fall surge for Nikki Haley and Ron DeSantis. Trump hovered around 50 percent in both polls — and the final read was of 48 percent of the electorate backing Trump, 20 percent backing Haley, and 16 percent backing DeSantis. The December poll showed Trump at 51 percent, Haley at 16 percent, and DeSantis at 19 percent.
The final results? Trump at 51 percent, DeSantis at 21 percent, and Haley at 19 — a mean average error of 3 points.
Morris’s own poll aggregating operation was also close in line, logging Haley’s support at 19 percent, DeSantis’s at 16 percent, and Trump’s at 53 percent, or an MAE of 2.5.
“The modest surprise was DeSantis, who beat his polling average by 5 points,” Morris said. “That speaks to his edge on enthusiasm. He had a higher percentage of voters who really wanted to turn out and vote for him than Nikki Haley.”
Whether this matters for the future of the Republican primary is less clear. Candidates who do better than their polls suggest in Iowa tend to gain ground in national polls, Morris said. But DeSantis has all but abandoned his chances of performing well in New Hampshire’s primary next week, and instead is focusing his campaign’s work on doing better in South Carolina, where FiveThirtyEight’s average shows him trailing Trump and Haley.
And the surprising accuracy of the Iowa polling does not mean that polls for the rest of the cycle will be just as accurate or that their crosstabs are as close to reality. Those national and general election polls are entirely different from polls of one party’s voters in individual states, and they may be more susceptible to the kind of non-response bias and polling troubles showing up in national polls of young voters, for example.
“2016 and 2020 were, of course, pretty bad for the pollsters. 2022 and 2023 were a little bit better,” Morris said. “So when the news is good for them, and for the people like me who like to average polls, we like to share the good news and remind people that this tool that we all rely on for democracy is not as hopelessly broken as most of the commentary implies.”
We’re not bringing back the extended child tax credit. But this deal is better than nothing.
The child tax credit has had a roller coaster of a decade so far. In 2021, the Democratic Congress and Joe Biden enacted the largest-ever expansion of the provision, making it a monthly benefit of up to $300 (or up to $3,600 annually) paid to all parents, even those without income.
Then … it ended. Despite widespread Democratic support for making that change permanent, the credit went back to a $2,000 annual benefit in 2022, with strings attached that limited how much poor families could get. The poorest families went from getting up to $3,600 per kid to getting $0.
Ever since, antipoverty activists have been strategizing about how to expand the credit again. The votes clearly weren’t there in the Senate for the full proposal, and after the 2022 midterms, the votes weren’t there in the House either. So hopes started to revolve around a tit-for-tat deal: Maybe an expanded credit with more benefits for poor children could pass if combined with some business tax breaks Republicans wanted. The GOP wouldn’t necessarily want the expanded child credit, but they’d stomach one if they got something in return.
Efforts to cut a deal along these lines foundered at the end of 2022, as my colleague Rachel Cohen reported. A renewed push began at the end of last year, and for a while the outlook was similarly bleak.
Then, on Tuesday, Congress’s two lead lawmakers on tax issues — Senate Finance chair Ron Wyden (D-OR) and House Ways and Means chair Jason Smith (R-MO) — announced they had come to a deal. The arrangement was exactly the same one that had been pitched for well over a year: a child tax credit boost in exchange for more favorable treatment of research and development expenses. Generally seen as a Republican priority, the provision has some bipartisan backing.
The technical details of the Wyden-Smith deal are now available. It includes some provisions besides the child and R&D provisions, like an extension of “bonus depreciation” (which lets businesses deduct the cost of property they buy faster), some provisions on US-Taiwan tax issues, and payments for people affected by the East Palestine train derailment in Ohio. The much-covered rule requiring payments on apps like Venmo and Square Cash in excess of $600 to be reported to the IRS is amended, with the limit raised to $1,000. To pay for all this, the deal rolls back the Employee Retention Tax Credit, a business credit enacted to encourage employers to keep people in their jobs during the Covid pandemic.
For people who care about child poverty, though, the real action is in the child credit section.
How the bipartisan deal changes the child tax credit
The Wyden-Smith deal significantly expands the child tax credit, with changes designed mostly to benefit households earning around $20,000 to $40,000 a year. The details of how it does this are a little complicated.
Currently, the credit is limited to 15 percent of a filer’s income in excess of $2,500 a year. That’s a rather slow phase-in, and it means that, for instance, a family with two children making $20,000 won’t get the credit’s full benefit (and a family making $10,000 would get still less). It also features a “refundable maximum”: While the credit is worth $2,000 per child for families earning enough money to owe income taxes, at most $1,600 per child is available to families that don’t have a tax bill — that is, poor and working-class families. About 2 in 5 American households owe $0 in income taxes or get money back on net. The refundable maximum limits how much these families can benefit from the child credit.
The Wyden-Smith deal changes both of these aspects of the credit. The phase-in rate is still 15 percent but is now applied on a per-child basis. Right now, the way the credit works for a family with multiple kids is that the maximum refundable amount is multiplied by the number of kids and then phased in with income at 15 percent, so a family with three kids has a $4,800 total credit, which then gradually phases in. The Wyden-Smith approach treats the family as getting three separate $1,600 credits, which phase in simultaneously at 15 percent, resulting in much more money for low-income families.
This change can be a little hard to grasp, so here’s a chart showing how the phase-in works for families with two or three children, under both the old (dotted lines) and new (solid lines) provisions: