Key words: Transnational Ramifications, Inventiveness Threshold, Utility Model Patents, China’s opening-up

Introduction

Today, most economies worldwide have established patent law systems, and the top five Patent Offices account for 85% of the world’s total patent applications.¹ Conceptually, unpacking the notions of patent and utility model patent (hereinafter “UMP”) may seem straightforward, yet these concepts carry multifaceted positive and normative values. For instance, the theoretical rationale for UMPs stems from two key facts: a variety of social welfare-enhancing inventions are cumulative in nature, and many of them fail to meet normal patentability criteria because the novelty and inventive step requirements of the patent system are too high to accommodate them.² Accordingly, the inventive step required for utility models has always been lower than that for patents, which constitutes a cardinal incentive for filing a utility model application.³ In general, medium-sized and small industrial factories show particular interest in such protection, primarily because it can provide legal safeguards for their products.⁴ By contrast, large enterprises seldom utilize utility model protection or engage with it.⁵

Today, the patent system⁶ is increasingly playing a key role in encouraging innovation, promoting technological achievements, facilitating international technical exchanges, and driving economic development. By recognizing and protecting inventors’ intellectual achievements, this system operates in numerous economies, and China⁷ is no exception. The patent law system and its enforcement have made significant contributions to China’s modernization. Over the past few decades, the number of patent applications has experienced a dramatic increase.⁸ To some extent, the sharp rise in granted patents has mirrored the rapid development of China’s contemporary science, technology, and economy. However, the quantitative aspect is far from the sole determinant, as the number of granted patents represents merely one of the indicators of innovation capability and performance.⁹

In contrast to the quantity of patent applications and grants, the quality of granted patents has proven more pertinent to realizing the legislative purpose of patent law—such as technological upgrading. Unfortunately, the surge in granted patents in China has included a significant number of low-quality patents¹⁰ with unwarranted authorizations, severely undermining the intended legislative objectives.¹¹ Specifically, these low-quality patents consist mainly of UMPs, often dubbed “junk patents.”

Dating back to April 1, 1985, when China formally enacted its first Patent Law,¹² the country initiated a legal protection system for UMPs. After four revisions of the Patent Law, China’s utility model patent legal framework (hereinafter referred to as “CUMP”) has been significantly improved.¹³ However, it appears that not all authorized utility model patents fully satisfy the statutory inventiveness requirements. Such cases of socially detrimental patents have attracted substantial attention, particularly domestically.¹⁴ As a result, China has been formulating measures—including a seemingly more stringent non-obviousness standard currently under development—to gradually enhance patent quality.¹⁵

This Article first elucidates the unprecedented overhaul of the CUMP legal system, which is centered on inventiveness, and the fundamental rationale deeply rooted in China’s latest general development strategy for innovation-driven institutional construction. This framework serves as the foundation and backdrop for an in-depth analysis of the recent cross-border implications of raising the inventiveness threshold for CUMPs. To align more closely with CUMP-based scenarios, Part I explores the basic evolutionary background of the CUMP Legal System, primarily including institutional factors related to the initiation of the customized CUMP legal system, the essential institutional driving forces behind it, and subsequent institutional improvements. Building on the preceding analyses, Part II examines the unprecedented institutional amendment to raise the threshold of inventiveness. Prior to concluding, Part III examines the transnational ramifications of elevating the inventiveness threshold for CUMPs amid the increasing sophistication of China’s opening-up initiatives.

I. Basic Evolutionary Background of the CUMP Legal System

A. Fundamental Institutional Drivers of the CUMP Legal System

The institutional design of UMP systems remains within the purview of individual jurisdictions, guided by their specific policy priorities and developmental needs. By contrast, while utility models are scarcely integrated into the IP frameworks of developed nations—given their focus on protecting innovations of moderate inventiveness—they serve as a strategic tool in many developing economies to foster domestic technological capabilities.¹⁶

Beyond the U.S.-driven transplantation trajectory, the Chinese Patent Law has also drawn inspiration from the German Patent Law, particularly in the realm of utility model regulations.¹⁷ In fact, the introduction of utility model protection in China was preceded by robust deliberations. Legislative debates brought to the forefront concerns that safeguarding incremental innovations would disproportionately advance the interests of Japan’s industrial sectors, which then held a significant competitive advantage in incremental technological refinements.¹⁸ Stated otherwise, China harbored apprehensions about formulating UMP legislation that might inadvertently prioritize foreign industrial interests over domestic innovators.

In its 1984 Patent Law, China first instituted the utility model patent protection system.¹⁹ The decision to incorporate a utility model legal mechanism into the PRC’s nascent patent legislation entailed a complex interplay of advantages and limitations. The CUMP’s relatively low inventiveness threshold enabled technological adapters (rather than original innovators) to legally secure protection for incremental technical improvements that would otherwise fall outside the scope of patent law.²⁰

The fundamental statutory rationale of the CUMP legal system has also gained international recognition.²¹ This explains, in theoretical terms, why UMPs are referred to by quasi-synonymous terms such as “Second Tier Patent”²² in other jurisdictions. Given the inherently lower inventiveness threshold, CUMP grants typically bypass substantive examination—a design choice intended to alleviate the Patent Office’s overburdened workload in reviewing massive patent applications.²³ Particularly, during the early phase of China’s patent system, it is plausible to argue that while the majority of patents were awarded to foreign entities, utility model registrations primarily benefited domestic innovators.²⁴ More specifically, a significant proportion of early-stage Chinese patent applications—particularly those for utility models—lacked corresponding foreign filings in English.²⁵

Notably, this phenomenon is not exclusive to China. For instance, alongside China, nations such as South Korea, Japan, and Germany have been among those that most extensively utilized utility models, with applicants predominantly of domestic origin.²⁶ This practice has given rise to the perception that numerous readily acquirable yet potentially contestable monopoly rights constitute an effective strategy for domestic enterprises to fend off foreign imports and secure their domestic market dominance.²⁷

B. Subsequent Institutional Enhancements to the CUMP Legal System

1. Patent law amendments

The 1992 first amendment lengthened the statutory term of CUMPs to ten years (from the original five years), thereby substantially strengthening their legal protection.²⁸ The 2008 Patent Law revision introduced the absolute novelty standard for both utility models and invention patents,²⁹raising the substantive requirements threshold for utility model applications. Notably, this amendment also permitted applicants to file concurrent applications for a utility model and an invention patent based on the same technical solution, enabling the utility model to complement the temporary protection measures for invention patent applications.³⁰

Subsequent to this, the 2010 revision of the Detailed Rules for the Implementation of the Chinese Patent Law further broadened the scope of preliminary examination for utility model applications, incorporating examinations for manifest novelty and practicality defects³¹—thereby enhancing the authorization quality of utility models. Intrinsically, such amendments represent pivotal CUMP-related institutional overhauls, with more detailed operational norms specifically designed to effectively implement and supplement these overhauls disseminated across numerous multi-level patent-related regulatory documents.³²

2. Multi-level patent-related regulatory documents

In response to the widely acknowledged low quality³³ of a substantial number of granted CUMPs, regulatory authorities such as the China National Intellectual Property Administration (“CNIPA”)³⁴ have formulated a series of regulatory rules governing patent applications across all types. These rules aim to curtail and gradually eliminate low-quality patents at the most upstream stage of the patent lifecycle, as opposed to invalidating them through downstream mechanisms—such as judicial reviews—that entail high transaction costs.

In this context, SIPO first promulgated a specific administrative regulation in 2007—Several Provisions of the State Intellectual Property Office on Regulating Patent Application Activities³⁵—aimed at curbing abnormal patent filing behaviors.³⁶ Prior to the 2013 administrative reform,³⁷China’s utility model preliminary examination system prohibited the use of search procedures, which inherently rendered the “examination for obvious substantive defects” ineffective in practice.³⁸

Subsequently, SIPO promulgated a revised version of the regulation through the Decision of the State Intellectual Property Office on Amending the Several Provisions on Regulating Patent Application Activities (2017),³⁹with amended Article 3⁴⁰ at its core, which aimed to broaden its scope of application. Notwithstanding these revisions, abnormal patent filing practices remained insufficiently curbed and were far from eradicated—factors that prompted CNIPA to issue the Notice of the China National Intellectual Property Administration on Further Strictly Regulating Patent Application Activities⁴¹ in 2021.

This initiative aimed to strictly implement high-quality development requirements, further regulate patent filing activities, and enhance patent application quality.⁴² In close succession, CNIPA formalized the measures outlined in the Notice by promulgating the Measures for Regulating Patent Application Activities⁴³ in March 2021, thereby institutionalizing these regulatory initiatives.

II. A Landmark Revision to Raise the Inventiveness Threshold of CUMPs⁴⁴

A. Principal Deficiencies of the Historical CUMP Legal System

Undeniably, China’s current UMP legal system demonstrates both notable merits and inherent limitations. In analyzing the well-documented deficiencies of China’s historical UMP legal system, a bifurcated analytical framework can be adopted. On the one hand, certain deficiencies are inherent to utility model systems globally—recognized internationally long before China’s UMP system was established—principally manifested as quantitative proliferation coupled with qualitative inadequacy. On the other hand, some CUMP-specific institutional flaws exhibit distinct indigenous characteristics. Notwithstanding this categorization, these two types of deficiencies are often inextricably intertwined in practice.

1. Intrinsic Deficiencies Specific to UMPs

Controversies surrounding China’s utility model patents are attributable, in part, to the long-debated unchecked proliferation of “junk patents”⁴⁵—or, at the very least, “questionable patents.”⁴⁶ The definition of “questionable patents” remains a matter of scholarly debate.⁴⁷ Notably, Tian Lipu, former Director of CNIPA, has underscored a fundamental distinction between “questionable patents” and “junk patents”: the former denote patents whose protection scope is overly broad or which violate the Patent Law’s provisions even after grant, while the latter refer to inventions entirely lacking innovative substance.⁴⁸ These so-called “junk patents” are predominantly concentrated in two domains: utility models and design patents.⁴⁹

These “abnormal” patents have prompted serious domestic and international concerns. Approximately a decade ago, numerous observers of China’s patent system drew a direct equivalence between “junk patents” and utility model patents⁵⁰—a perspective that mirrored prevailing public perceptions regarding the frequently reported “low-quality” profile of utility models.⁵¹ Yet the distinction between patents claiming technical improvements of minimal significance and those devoid of innovative substance remains tenuous. Thus, to a certain extent, the issuance of low-quality utility model patents may be inherent in the historical design of China’s utility model legal system.

2. Historical Trends in CUMP Applications and Underlying Causal Factors

To identify a representative historical benchmark year for analyzing UMP filing trends, 2021 serves as an appropriate case. According to WIPO statistics, China received 1.59 million patent applications in 2021—exceeding that of the United States by over 100%.⁵² Whereas with respect to UMPs, an overwhelming majority of global applications originate from Chinese applicants.⁵³ WIPO data further shows that China recorded 2,852,219 UMP applications in 2021, with 99.76% filed by domestic applicants (amounting to 2,845,318 domestic applications).⁵⁴ Meanwhile, although the working rate of Chinese UMPs—tracked by CNIPA—has exhibited a steady upward trend over the past five years, approximately 40% of granted UMPs remain unutilized in practice.⁵⁵

Commentators have posited that the primary driver behind these filing trends—particularly over the past decade—lies, at least partially, in domestic industrial policies incorporating patent-related subsidies and tax incentives, which effectively incentivized patent filings.⁵⁶ While initially formulated to foster domestic innovation, these policies were exploited by numerous domestic enterprises adopting a “quantity-driven innovation” strategy, prioritizing maximal patent filings over the substantive quality of the underlying inventions.⁵⁷

In recent years, China has increasingly acknowledged the adverse impacts of formulating and implementing policies intertwined with patent subsidies and tax incentives. As a result, a series of corrective measures have been instituted. For example, CNIPA issued the Notice on Continuously Strengthening the Regulation of Patent Application Conduct, which aims to progressively reduce financial subsidies for patent authorizations by at least twenty-five percentage points annually—with the goal of phasing out such support entirely by 2025.⁵⁸

B. The Selected Approach to an Inventiveness-Oriented Screening Mechanism

Once granted, utility model patents may thus function as an oppressive instrument enabling large enterprises to suppress smaller competitors—given that invalidation proceedings and litigation could impose prohibitive financial burdens on small firms, which were often unable to withstand aggressive patent assertions. In its formal response to abolitionist arguments advocating the dismantling of the CUMP legal regime, the CNIPA explicitly emphasized both the historical and contemporary significance of the system, alongside the imperative of its further reform—rather than pursuing its outright elimination from China’s intellectual property ecosystem.⁵⁹ Consequently, subsequent official initiatives have centered on refining the statutory framework and its enforcement mechanisms.⁶⁰ As outlined in Part II, a succession of institutional refinements targeting the CUMP legal regime have been operationalized over the past decades. Yet the volume of granted UMPs of inferior quality has not exhibited a substantive reduction—particularly prior to the 2021 draft enactment of unprecedented inventiveness-oriented quality-enhancing measures, designed to directly curtail the future emergence of low-quality UMPs.⁶¹

In fact, the proposition of introducing a substantive examination mechanism to assess the inventiveness of utility model patents is not a novel one. Such arguments have long been advocated by academic circles and even senior government officials.⁶² As of the present writing, two salient national initiatives centered on CUMPs have been propelled forward, with the objective of upgrading the quality of innovation inherent in such patents.

To begin with, in 2021, the CNIPA issued a Notice on Soliciting Public Comments on the Draft Revision of the Guidelines for Patent Examination (Draft for Comment),⁶³ which addressed the inventiveness threshold applicable to the preliminary examination of utility model patent applications. The relevant clause in the Notice states: “In accordance with the prior art information at the examiner’s disposal, the latter may conduct an examination to ascertain whether a utility model patent application is manifestly deficient in inventiveness.”⁶⁴

Evidently, the integration of the new criterion of “manifestly deficient in inventiveness” into the Guidelines for Patent Examination is designed to directly and effectively curtail the issuance of low-quality Chinese utility model patents.⁶⁵ As of the present date, the Implementation Rules of the Patent Law of the People’s Republic of China,⁶⁶which formally entered into force on January 20, 2024, have explicitly integrated provisions within Article 50 pertaining to the examination of whether UMP applications are manifestly deficient in inventiveness.⁶⁷ This regulatory adjustment serves to further enhance the quality of UMPs at the source, thereby fortifying the bidirectional transmission function of UMP examination—namely, promoting the advancement of scientific and technological innovation capabilities upstream and facilitating the realization of UMP-based market value downstream.

The second initiative pertains to the Promotion Plan for In-depth Implementation of the Opinions on Strengthening the Protection of Intellectual Property Rights (hereinafter referred to as the “Promotion Plan”).⁶⁸ This recently formulated comprehensive national-level administrative initiative is designed to effectively advance the recent top-tier intellectual property strategy jointly promulgated by the General Office of the CPC Central Committee and the State Council.⁶⁹ The Promotion Plan encompasses a broad spectrum of intellectual property-related matters, including 114 nationally prioritized items, among which one pertains to utility model patents. Clause 26 of the Promotion Plan stipulates: “To advance the reform of the utility model patent system and introduce a screening mechanism for examining utility model patent applications that are manifestly deficient in inventiveness[] ([t]o be accomplished by the end of December 2025).”⁷⁰

This statement reaffirms the Chinese government’s commitment to curbing the proliferation of low-quality UMPs. A key consideration in the implementation of this reform thus lies in determining an appropriate nonobviousness threshold for screening purposes. To elaborate, in operational terms, patent examiners are required to reject UMP applications that are manifestly obvious and deficient in sufficient inventiveness; conversely, they must also exercise prudence to avoid setting an unduly stringent inventiveness threshold, as such stringency could blur the demarcation between invention patents and UMPs, thereby undermining the very raison d’être of the CUMP legal regime. Attaining such a socially optimal inventiveness threshold will likely necessitate a continuous process of calibration. Hence the practical efficacy of the aforementioned reforms will remain under scrutiny in the years ahead.

While it is imprudent to presume to anticipate all future institutional reforms pertaining to China’s utility model patent system, there is little doubt that China will render this legal regime more adaptive to its innovation-driven development landscape amid mounting pressures—all in pursuit of the overarching strategic goal articulated in An Outline for Building a Powerful Intellectual Property Nation (2021–2035). Specifically, institutional refinements to China’s utility model patent system can be construed as a mechanism for “attaining a high level of scientific and technological self-reliance and emerging among the world’s forefront innovative nations.” ⁷¹

Ⅲ. Transnational Ramifications of Elevating the Inventiveness Threshold for CUMPs

As China’s top leadership has iterated consistently over the past decade, “[c]hina’s door to opening up will never be closed; it will only open wider.”⁷² Looking ahead, as China’s opening-up advances to an increasingly sophisticated level, its engagements with a multitude of foreign nations and regions across economic, trade, and other domains will grow progressively more intertwined. In turn, the formulation and enforcement of China’s domestic laws with foreign-related dimensions will exert an external influence of broader breadth and deeper intensity—encompassing, as a natural corollary, the transnational ramifications of China’s UMP legal regime. Salient existing and potential transnational ramifications are probed in sequence below.

A. Observed and Potential Transnational Ramifications Within Domestic Jurisdictions

Concomitant with the formal institutional entrenchment of elevating the inventiveness threshold for CUMPs, there has emerged a statistically observable downward trend in granted UMPs within China.⁷³ Simultaneously, a constellation of transnational ramifications has progressively unfolded both domestically and externally. With respect to the former, three categories of ramifications bearing transnational dimensions are of particular note.

Firstly, as the volume of granted substandard UMPs with deficient inventiveness has declined substantially, the likelihood of the anti-commons tragedy is concomitantly diminished. Stated differently, domestic and foreign enterprises engaged in legitimate commercial operations within China are confronted with fewer potential litigations stemming from infringing UMPs that have traditionally been challenging to invalidate.

Secondly, against the backdrop of the recently elevated inventiveness threshold, domestic and foreign enterprises engaged in legitimate commercial operations within China are afforded an enhanced likelihood of successfully invalidating such misgranted substandard UMPs that lack the requisite inventiveness, thereby redressing market distortions and protecting their legitimate market interests. A recent illustrative example is the invalidation request case concerning the UMP for “a composite decorative panel,” which ranks among the top ten reexamination and invalidation cases of the CNIPA.⁷⁴ Following adjudication, the Patent Reexamination and Invalidation Department of the CNIPA Patent Office issued Decision No. 563521 on the Examination of UMP Invalidation Request, declaring the UMP entirely invalid.⁷⁵

Thirdly, over the past decade, a growing number of foreign enterprises have entered China and filed applications for UMPs.⁷⁶ Subsequent to the formal institutional entrenchment of elevating the inventiveness threshold for CUMPs, the right stability of future CUMPs—including those filed by foreign enterprises—is anticipated to be further enhanced.⁷⁷ Correspondingly, the strengthened right stability of CUMPs will, to a certain extent, foster a more stable and secure business environment for foreign CUMP holders engaged in commercial activities within China.

B. Potential Transnational Ramifications Beyond National Borders

The marked upgrading of the inventiveness threshold within the examination criteria of China’s utility model patent legal system may also entail extraterritorial ramifications.

To start with, this substantial elevation impels Chinese enterprises to attach greater importance to enhancing the inventiveness of technical solutions embedded in their UMP applications in China. More importantly, the improved inventiveness of such solutions substantially augments the likelihood that these enterprises will secure authorization when filing UMP applications via PCT international applications⁷⁸ in jurisdictions with a UMP legal system, while concurrently bolstering the stability of their holdings of such authorized UMPs. In consequence, this enhances Chinese enterprises’ ability to conduct legitimate overseas commercial activities with heightened confidence and efficiency, predicated on their authorized UMPs.

In addition, given that China has successively integrated utility model-related provisions into the intellectual property clauses of several FTAs,⁷⁹ this substantial upgrading of the inventiveness threshold in China’s utility model examination regime may thus induce commensurate adjustments in China’s strategies for international coordination on utility model patent filing and examination during subsequent FTA negotiations. This, in turn, is likely to engender certain cross-border institutional spillover effects within the jurisdictions of the respective FTA signatories. In furtherance thereof, from the vantage point of operationalizing the strategy for developing a robust IP-based nation, the negotiation and drafting of IP provisions—including those pertaining to UMPs—in subsequent bilateral or regional FTAs may undoubtedly be construed as the tangible operationalization of the strategic initiatives enunciated in China’s Outline for Building a Robust IP-based Nation (2021-2035).⁸⁰ As embedded within the nation’s top-tier institutional framework, this outline emphasizes the strategic imperative of “actively participating in the reform and development of the global IP governance system.”⁸¹

Conclusion

Concurrent with the formal institutional entrenchment of raising the inventiveness threshold for CUMPs, a statistically discernible downward trajectory in the number of granted UMPs in China has emerged. Going forward, in the further implementation of the vital examination criterion for utility model patents—namely, “manifestly deficient in inventiveness,” which was formally integrated into China’s patent legal framework in 2024—China may also draw upon innovative methodologies employed in U.S. patent examination that are conducive to enhancing the efficiency and accuracy of the examination process.⁸² Such methodologies include, for instance, the utilization of state-of-the-art AI-assisted prior art searches⁸³ to augment the efficacy and precision of examinations.

Meanwhile, as China’s opening-up initiatives progress toward greater sophistication, its interactions with numerous foreign nations and regions in economic, trade, and other spheres will become increasingly intertwined. Concomitantly, the formulation and enforcement of China’s domestic laws with foreign-related elements will exert an external influence of greater breadth and depth—encompassing, as a logical corollary, the transnational ramifications of China’s UMP legal regime.

Regarding the observed and potential transnational ramifications within China’s territorial scope, on the one hand, the progressive reduction of low-quality UMPs lacking sufficient inventiveness objectively mitigates the risk of infringement litigation faced by multinational corporations operating in China. On the other hand, as the volume of utility model patent applications filed by foreign enterprises in China increases incrementally, the elevated inventiveness-based examination criteria enable foreign enterprises to engage in legitimate commercial activities with greater confidence following the grant of their UMPs—a confidence underpinned by their possession of UMPs exhibiting greater stability. In essence, from any perspective, this institutional optimization serves to foster a more predictable, equitable, and well-ordered legal environment for foreign enterprises operating commercially in China.

In relation to the potential transnational ramifications beyond China’s borders, this elevation in the inventiveness threshold compels Chinese enterprises to prioritize enhancing the inventiveness of technical solutions embedded in their domestic UMP applications. Also, the improved inventiveness of such solutions may increase the likelihood that these enterprises will obtain authorization when filing UMP applications through PCT international filings in jurisdictions with a UMP regime, while concomitantly enhancing the stability of their authorized UMP holdings. Consequently, this strengthens Chinese enterprises’ capacity to engage in legitimate overseas commercial operations with greater confidence and efficiency, grounded in their authorized UMPs. Moreover, given that China has successively integrated UMP-centered provisions into the IP clauses of some FTAs, such upgrading of the inventiveness threshold within China’s UMP examination regime may induce corresponding adjustments in China’s strategies for international coordination regarding UMP filing and examination during subsequent FTA negotiations. This, in turn, is likely to generate specific transnational institutional spillover effects within the jurisdictions of respective FTA signatories, thereby enhancing, to a certain extent, the effectiveness and efficiency of the regional IP institutional framework.

* Yang Yu, Associate Professor, School of Global Governance, Shanghai University of International Busi-ness and Economics. Ph.D. in Law (Fudan University); European Master in Law and Economics (Erasmus Mundus Scholarship). The author has independently and collaboratively published a number of English articles in international journals, etc., such as British Medical Journal Global Health (SSCI/SCI Q1), Ameri-can University Law Review, Queen Mary Journal of Intellectual Property (SSCI), Journal of East Asia and International Law (ESCI), China and WTO Review (ESCI), Journal of Intellectual Property Rights, IEEE Communications Standards Magazine, PATENTLYO, etc.

1. See WIPO, IP Facts and Figures 2024 10 (2023), https://www.wipo.int/web-publications/ip-facts-and-figures-2024/en/index.html [https://perma.cc/7A7Z-PZZA].

2. See Graham Dutfield & Uma Suthersanen, Global Intellectual Property Law 178 (2008).

3. See Roland Liesegang, German Utility Models After the 1990 Reform Act, 20 AIPLA Q.J. 1, 4–5 (1992).

4. See Kilpatrick Townsend & Stockton LLP, Yifan Mao & Tiffany Thomas, Utility Models: Economical, Efficient, and Enforceable Patent Protection, JD Supra (June 23, 2022), https://www.jdsupra.com/legalnews/utility-models-economical-efficient-and-4367830/#:~:text=However%2C%20utility%20models%20are%20widely,be%20taken%20as%20legal%20advice [https://perma.cc/8GKY-SDVE].

5. See H. Naumann, Utility Model Patent Protection, 40 J. Pat. Off. Soc’y 800, 803 (1958).

6. The institutional rationale has long been explored. See, e.g., Wendy J. Gordon, Fair Use as Market Failure: A Structural and Economic Analysis of the Betamax Case and Its Predecessors, 82 Colum. L. Rev. 1600, 1610–13 (1982).

7. In the specific context of this article, China refers to the mainland of the People’s Republic of China (hereinafter “PRC”).

8. China led the world in both patent and UMP applications in 2024, see WIPO, supra note 1; see also WIPO, World Intellectual Property Indicators 2024 27, 53, https://www.wipo.int/edocs/pubdocs/en/wipo-pub-941-2024-en-world-intellectual-property-indicators-2024.pdf [https://perma.cc/GSN3-7RW2].

9. For instance, China has yet to attain the global top tier in terms of innovation capability. See WIPO, Global Innovation Index 2022: What Is the Future of Innovation-Driven Growth? 22 (2022) (“China moves up to 11th place.”). In the latest edition of this annual index, China remains at eleventh place. See WIPO, Global Innovation Index 2024: Unlocking the Promise of Social Entrepreneurship 19 (2024), https://www.wipo.int/web-publications/global-innovation-index-2024/en/ [https://perma.cc/MZA3-L67C].

10. To some extent, these low-quality granted patents in China may be equivalent to the “questionable patents” with poor quality referred to in an official report released by the Federal Trade Commission of the U.S.A two decades ago. See Fed. Trade Comm’n, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy (2003), https://www.ftc.gov/reports/promote-innovation-proper-balance-competition-patent-law-policy [https://perma.cc/WE4P-CK5Q]. See also FTC, To Promote Innovation: The Power Balance of Competition and Patent Law and Policy, 19 Berkeley Tech. L.J. 861 (2004).

11. This phenomenon has long been observed and explored. See, e.g., Dan Prud’homme, China’s Shifting Patent Landscape and State-Led Patenting Strategy, 10(8) J. Intell. Prop. L. & Prac. 619–625 (2015).

12. See 中华人民共和国专利法 [Patent Law of The People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., effective Mar. 12, 1984) 1984 Standing Comm. Nat’l People’s Cong. (China). In addition, a series of translated multi-tiered CUMP-related legal documents are available on the WIPO’s website, see Laws Collection Search Results: Utility Models, WIPO, https://wipolex.wipo.int/en/legislation/results?countryOrgs=CN&subjectMatter=2&last=true (last visited Apr. 11, 2026) [https://perma.cc/R7S4-FLFV].

13. Nigel Lee, 4^th Amendment to the Chinese Implementing Regulations of the Patent Law: Implications for Foreign Applicants, D Young & Co Knowledge Bank (Feb. 13, 2024), https://www.dyoung.com/en/knowledgebank/articles/4th-amendment-chinese-implementing-regulations [https://perma.cc/4PSW-UL5W ].

14. Charles W. Gray, China’s Revised Patent Guidelines & Drafting Strategy, Kilpatrick (Dec. 29, 2025), https://ktslaw.com/en/insights/alert/2025/12/chinas%20revised%20patent%20guidelines%20and%20drafting%20strategy [https://perma.cc/Q2YR-XLRF].

15. See, e.g., Xiaoqing Feng, The Interaction Between Enhancing the Capacity for Independent Innovation and Patent Protection: A Perspective on the Third Amendment to the Patent Law of the P.R. China, 9 Pitt. J. Tech. L. & Pol’y 1, 54 (2009). The historical imperative of enhancing patent quality is not exclusive to China. Indeed, the effective enhancement of patent quality has long constituted one of the pivotal challenges confronting U.S. patent law. See Sean B. Seymore, Patent Asymmetries, 49 U.C.D. L. Rev. 963, 976 (2016).

16. See Sam F. Halabi, Intellectual Property and The New International Economic Order: Oligopoly, Regulation, And Wealth Redistribution in The Global Knowledge Economy 11 (2018).

17. See Chris Devonshire-Ellis, Andy Scott & Sam Woollard, Intellectual Property Rights in China 7 (2d ed., Springer 2011).

18. See Peter Ganea & JIN Haijun, China, in Intellectual Property in Asia Law, Economics, History and Politics 20 (Springer 2009).

19. Id.

20. Id.

21. See, e.g., Teresa J. Welch, Patent Law and Practice in the People’s Republic of China: Patenting of T.A. Widgets by a United States Enterprise, 5 Wis. Int’l L.J. 130, 133 (1986). See also Yieyie Yang, Reforming the Utility Model System in China: Time to Limit Utility Model Patents’ Scope of Protection and Improve the Quality of Chinese Utility Model Patents, 42 AIPLA Q. J. 393, 406–12 (2014).

22. See, e.g., Mark D. Janis, Second Tier Patent Protection, 40 Harv. Int’l. L. J. 151, 219 (1999). In broader theoretical contexts, such second-tier patents have been conceptualized as deviant protective regimes, standing in contrast to “orthodox” intellectual property institutions. See J. H. Reichman, Legal Hybrids Between the Patent and Copyright Paradigms, 94 Colum. L. Rev. 2432, 2454 (1994).

23. See Urvi Shrivastava & Abhinav Pradhan, Utility Model Regime as a Tool to Protect Green Innovation: A comparative Study of India, China, and Germany, 7 ShodhKosh: Journal of Visual and Performing Arts 514, 518 (2026).

24. See Sean A. Pager, Patents on a Shoestring: Making Patent Protection Work for Developing Countries, 23 Ga. St. U. L. Rev. 755, 803 (2007).

25. See Michael Andreas Kock, Intellectual Property Protection for Plant Related Innovation Fit for Future? 196 (2022).

26. Yingying Shen, Chinese Utility Model Patents: An Underestimated Protection Weapon for IP, Asia IP (Aug. 15, 2025), https://asiaiplaw.com/article/chinese-utility-model-patents-an-underestimated-protection-weapon-for-ip#:~:text=Fast%20grant.,invention%20patents%20to%20be%20granted [https://perma.cc/3X9B-NCXN].

27. See Jeremy Phillips, A Spanner in the Works–Or the Spanner that Works? Patents and the Intellectual Property System, in Patent Law and Theory a Handbook of Contemporary Research 147 (2008).

28. State Intellectual Property Office of the P.R. China, Development of China’s Utility Model Patent System, China Nat’l Intell. Prop. Admin., https://english.cnipa.gov.cn/art/2013/1/5/art_1340_81044.html (last updated Jan. 5, 2013) [https://perma.cc/V4FH-5YHY].

29. See 中华人民共和国专利法 [Patent Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Mar. 12, 1984, amended Dec. 27, 2008, effective Oct. 1, 2009) arts. 9, 22.

30. State Intellectual Property Office of the P.R. China, supra note 28.

31. See Detailed Rules for the Implementation of the Patent Law of the People’s Republic of China (2010 Revision), art. 44.

32. On the Amendments to the Implementing Regulations of the Patent Law, China.org.cn (Feb. 3, 2010), http://www.china.org.cn/node_7064105/content_19362278.htm [https://perma.cc/DNW9-9PVX].

33. In essence, the intractable issue of the proliferation of low-quality patents is not exclusive to China. Even in the United States—widely regarded as one of the most technologically advanced nations—concerns have long been voiced regarding the systemic problem of the excessive issuance of low-quality patents. See, e.g., Sean B. Seymore, Patenting New Uses for Old Inventions, 73 Vand. L. Rev. 479, 526 (2020).

34. This new English name was adopted on August 28, 2018. See Notice on the Official Launch of the New English Translated Name of the National Intellectual Property Administration, Aug. 28, 2018, http://www.gov.cn/zhengce/zhengceku/2018-12/31/content_5443904.htm [https://perma.cc/9UBY-8FJJ]. For the sake of terminological precision, this Article employs the updated English name for all events and official documents issued subsequent to the Notice, while retaining the former designation—State Intellectual Property Office (hereafter “SIPO”)—for historical references.

35. See 关于规范专利申请行为的若干规定 [Several Provisions of the SIPO on Regulating Patent Application Activities] (promulgated by the State Intell. Prop. Office, Order No. 45, effective Oct. 1, 2007).

36. See id. at art. 3.

37. See 国家知识产权局关于修改《专利审查指南》的决定 [Decision of the State Intellectual Property Office on Amending the Guidelines for Patent Examination] (promulgated by SIPO, Order No. 67, issued Sep. 16, 2013, effective Oct. 15, 2013), part Ⅰ.

38. See Chinese Patent Office Tightens Examination on Utility Model Patents, Union Patent Service Centre (May 2015), https://www.unionpatent.com.hk/en/Newsletter/Trademark-License-System-and-Practice#:~:text=2.,in%20Accordance%20with%20Article%2022.2 [https://perma.cc/59JL-6VJU].

39. See 关于规范专利申请行为的若干规定 [Several Provisions Regarding the Regulation of Patent Application Conduct] (promulgated by SIPO, Order No. 75, effective Apr. 1, 2017).

40. See id. (amending art. 3).

41. See 国家知识产权局关于持续严格规范专利申请行为的通知 [Notice of the China National Intellectual Property Administration on Further Strictly Regulating Patent Application Activities] (promulgated by the China Nat]l Intell. Prop. Admin., No. 1, effective Jan. 27, 2021).

42. Justin Davidson & Stanley Ng, Combating the Unsustainable Rise of Patent Application Numbers in the PRC (Feb. 22, 2021), https://www.thebrandprotectionblog.com/2021/02/combating-the-unsustainable-rise-of-patent-application-numbers-in-the-prc/#:~:text=The%20Brand%20Protection%20Blog,-Covering%20the%20legal&text=Coincidently%2C%20or%20perhaps%20not%20coincidentally,any%20legal%20or%20technical%20necessity [https://perma.cc/F3C2-254R].

43. See 关于规范申请专利行为的办法 [Announcement on the Measures for Regulating Patent Application Activities] (promulgated by the China Nat. Intell. Prop. Admin., Annoucement No. 411, effective Mar. 11, 2021).

44. To some extent, this initiative to enhance inventiveness bears striking resemblance to a similar measure proposed in the United States two decades ago. See Fed. Trade Comm’n, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy, supra note 10, at 10 (“Recommendation 3: Tighten Certain Legal Standards Used to Evaluate Whether a Patent Is ‘Obvious.’”).

45. Observers argued that “patent subsidies incentivize applicants to file opportunistic applications for inventions of low patentability or low value that would have not been filed without those subsides. Thus, they claim that most filings in this China patent boom are so-called ‘junk inventions.’” See Zhen Lei, Zhen Sun & Brian Wright, Patent Subsidy and Patent Filing in China 2 (2013), https://funginstitute.berkeley.edu/wp-content/uploads/2013/12/patent_subsidy_Zhen.pdf [https://perma.cc/VNY5-YKUQ].

46. Vishal, From Subsidies to Supremacy: How China Turned Bulk Filings and Junk Patents into Innovation Power, Copperpod (Nov. 11, 2025), https://www.copperpodip.com/post/from-subsidies-to-supremacy-how-china-turned-bulk-filings-and-junk-patents-into-innovation-power [https://perma.cc/D48B-L6QJ].

47. Patrick A. Doody, What Is A Bad Patent?, IPAdovcate.org (June 18, 2010), http://ipadvocatefoundation.org/What-is-a-Bad-Patent_T204.cfm [https://perma.cc/ZJR9-FEZK].

48. Yu Yang, China’s Utility Model Patent Legal System in Sub-Patent Innovation Rights 200, 211 (Cambridge Univ. Press ed. 2025)

49. See “Questionable Patent” Does Not Equal “Junk Patent”, Legal Daily, Dec. 28, 2005, at 1.

50. See, e.g., Dan Prud’homme, Dulling the Cutting Edge: How Patent-Related Policies and Practices Hamper Innovation in China, 1 European Chamber of Commerce in China Publications 1, 22 (2012), https://mpra.ub.uni-muenchen.de/43299/1/MPRA_paper_43299.pdf [https://perma.cc/SW7D-TBF7]. See also Thomas T. Moga, China’s Utility Model Patent System: Innovation Driver or Deterrent, Report for the U.S. Chamber Of Commerce 8 (Nov. 2012). In contrast, other sharply opposite views regard China’s utility model patents as treasure rather than trash. See, e.g., Binqiang Lui, China Utility Model Patent: Trash or Treasure – A Data-Based Analysis, 54 IDEA 225, 253 (2014).

51. See Vishal, supra note 46.

52. See WIPO, World Intellectual Property Indicators 2022 9, https://www.wipo.int/edocs/pubdocs/en/wipo-pub-941-2022-en-world-intellectual-property-indicators-2022.pdf [https://perma.cc/N24Y-RLCX].

53. See Yu Feifeng, Drawbacks of Patent Law and Counter Measures, J. of Nanjing U. Sci. & Tech. 51–58 (2017).

54. For a statistical table of three kinds of patent applications at home and abroad, see Guide to Inquiry of Publicly Disclosed IPRs Statistics, China Nat. Intell. Prop. Admin. (2022 edition), https://www.cnipa.gov.cn/art/2022/7/28/art_88_172404.html [https://perma.cc/Z6HY-NVZY].

55. See 2021 China Patent Survey Report 33 https://www.cnipa-ipdrc.org.cn/news_content.aspx?newsId=289 [https://perma.cc/L463-WTD9].

56. Webin Rao, Yong Wang & Tian-ying Zhao, Why the Chinese Government Is Reducing Domestic Patent Filing Subsidies and How Rights Holders Can Adapt, AIM (Sep. 2025), https://www.iam-media.com/guide/china-managing-the-ip-lifecycle/2026/article/why-the-chinese-government-reducing-domestic-patent-filing-subsidies-and-how-rights-holders-can-adapt#:~:text=For%20many%20years%2C%20the%20Chinese,to%20this%20changing%20policy%20environment [https://perma.cc/D65V-37U6].

57. See Li Wenjing & Zheng Manni, Substantive Innovation or Strategic Innovation? The Impact of Macro-Industrial Policy on Micro-Enterprise Innovation, Econ. Rsch. J. 60–73 (2016) .

58. See China National Intellectual Property Administration: All Kinds of Financial Support for Patent Grants Will Be Canceled by 2025, Xinhua News Agency (Jan. 27, 2022), http://www.gov.cn/xinwen/2022-01/27/content_5670755.htm [https://perma.cc/PGX8-BWN3].

59. See infra text and accompanying note 64.

60. The CNIPA issued an official response to a netizen’s comment concerning the proposition of abolishing China’s utility model patent system. See Abolish the Utility Model Patent System? CNIPA Responds!, IPR Daily (May 26, 2021, at 19:06 CT), http://www.iprdaily.cn/news_29223.html.

61. Id.

62. See, e.g., Chen Yong (Grade Ⅲ Examiner, Director of Machinery Division, Utility Model Examination Department, CNIPA), On the Examination of Inventiveness for UMPs, [J]. Intell. Prop. 73–76 (2013).

63. See CNIPA, 关于就《专利审查指南修改草案（征求意见稿）》公开征求意见的通知 [Notice on Soliciting Public Opinions on the Draft Revision of the Guidelines for Patent Examination (Draft for Comment]), Aug. 3, 2021, https://www.cnipa.gov.cn/art/2021/8/3/art_75_166474.html [https://perma.cc/48U5-56X8]. In addition, on October 31, 2022, the CNIPA issued 关于就《专利审查指南修改草案（再次征求意见稿）》公开征求意见的通知 [Notice on Soliciting Public Opinions on the Draft Revision of the Guidelines for Patent Examination (Draft Again for Comment)], http://www.cnipa.gov.cn/art/2022/10/31/art_75_180016.html [https://perma.cc/LG6G-LX48].

64. Id.

65. Id.

66. See 国务院关于修改《中华人民共和国专利法实施细则》的决定 [Decision of the State Council on Amending the Implementation Rules of the Patent Law of the People’s Republic of China] (promulgated by the State Council of the People’s Republic of China, Decree No. 306, issued Dec. 21, 2023, effective Jan. 20, 2024), https://www.gov.cn/zhengce/content/202312/content_6921633.htm [https://perma.cc/3U6F-AHWL].

67. Id. at ¶ 19.

68. See 深入实施《关于强化知识产权保护的意见》推进计划 [Promotion Plan for In-depth Implementation of the Opinions on Strengthening the Protection of Intellectual Property Rights] (promulgated by CNIPA, effective Oct. 28, 2022), https://www.cnipa.gov.cn/art/2022/10/28/art_545_179970.html [https://perma.cc/XX5M-CH4F].

69. See 中共中央办公厅 国务院办公厅印发《关于强化知识产权保护的意见》[Opinions on Strengthening the Protection of Intellectual Property Rights], (promulgated by the General Office of the CPC Central Committee & the State Council, effective Nov. 24, 2019), http://www.gov.cn/zhengce/2019-11/24/content_5455070.htm [https://perma.cc/4QYT-BC82].

70. Promotion Plan for In-depth Implementation of the Opinions on Strengthening the Protection of Intellectual Property Rights, supra note 68, at ¶ 26 (Yang Yu, trans.).

71. See Xi Jinping, The Report to the 20th National Congress of the Communist Party of China (Oct. 25, 2022), http://www.gov.cn/xinwen/2022-10/25/content_5721685.htm [https://perma.cc/3A3E-T75B ](Yang Yu, trans.).

72. See Xi Jinping, Unswervingly Advancing High-Level Opening-Up, Qiushi (July 15, 2025), http://www.qstheory.cn/20250714/4506ed33ca0a495da1fd0243ff66cc77/c.html [https://perma.cc/N7QH-DS42].

73. For instance, the total number of granted UMPs from January to June 2025 stood at 756,682, whereas the corresponding figure for January to June 2024 was 966,514. This represents a year-on-year decrease of 209,832 granted UMPs, equivalent to a decline of 21.71%. See Monthly Report on Examination, Registration and Filing by the National Intellectual Property Administration, https://www.cnipa.gov.cn/col/col61/index.html [https://perma.cc/EP2X-JMJ5].

74. See [Top Ten Cases] Invalidation Request Case Regarding the UMP for “A Composite Decorative Panel”, CNIPA (July 8, 2024), https://www.cnipa.gov.cn/art/2024/7/8/art_2648_193635.html [https://perma.cc/J8NS-73PX].

75. Id. In addition, there are other widely known, high-level recent similar cases. For instance, see Zhang Zhaohui, After a Decade-Long Entanglement with Coman Medical, One of Mindray Medical’s Patents Has Been Ruled Entirely Invalid, BJNEWS (Sep. 10, 2024), https://www.bjnews.com.cn/detail/1725959155168875.html [https://perma.cc/3L4F-TWV2].

76. See, e.g., Patents Filed by 115 Belt and Road Co-Building Countries in China Have Exceeded 250,000, China Science Daily (Oct. 19, 2023), https://www.ncsti.gov.cn/kjdt/xwjj/202310/t20231019_139071.html [https://perma.cc/TS73-5D47]; see also CNIPA, supra note 28.

77. Rieko Michishita, Utility Model Patents in China, Bird & Bird (Sep. 14, 2021), https://www.twobirds.com/en/insights/2021/china/utility-model-patents-in-china#:~:text=2.,both%20invention%20and%20utility%20model [https://perma.cc/ST9Z-PE2C].

78. See CNIPA: In 2024, China’s Overseas Intellectual Property Filings Exhibited Increased Vitality, China Daily (Jan. 15, 2025), https://cn.chinadaily.com.cn/a/202501/15/WS67873852a310b59111dadd15.html [https://perma.cc/CE87-XKWX].

79. See, e.g., General Administration of Customs Announcement No. 63 of 2015 (Announcement on Matters Relating to the Implementation of the Free Trade Agreement between the Government of the People’s Republic of China and the Government of the Republic of Korea), [Date of Issuance] Dec. 20, 2015, http://www.mofcom.gov.cn/zcfb/zgdwjjmywg/art/2016/art_58328e5f77f44770829d02ab6144e72d.html; Free Trade Agreement Between the Government of the People’s Republic of China and the Government of the Republic of Korea, China-S. Kor., June 1, 2015, 55 I.L.M. 531, available at https://edit.wti.org/document/show/a591392b-4607-4f04-9737-ab79380a226f [https://perma.cc/L22F-Y76P].

80. See Outline for Building a Robust IP-based Nation (2021-2035), 2021 Gazette of State Council 29 (Sep. 22, 2021), https://www.gov.cn/gongbao/content/2021/content_5643253.htm [https://perma.cc/4N4Z-ZCSN].

81. See id. (“Actively participate in the reform and development of the global intellectual property (IP) governance system. Expand opening-up in the IP field, improve mechanisms for international dialogue and exchanges, and promote the refinement of international rules and standards pertaining to IP as well as related international trade and international investment. Actively advance multilateral and bilateral foreign negotiations on IP matters related to economic and trade . . . .”).

82. See infra text and accompanying note 83.

83. See Vaishali Udupa & Devon Kramer, The Integration of Al and Patents, 104 J. Pat. & Trademark Off. Soc’y [i], 4 (2024).

I. Skrmetti

The case of U.S. v. Skrmetti concerned Tennessee’s SB 1, which prohibits healthcare providers from administering puberty blockers and hormone therapy to minors who intend to live in a gender identity inconsistent with their biological sex.⁸ The law had two primary classifications: an age-based restriction applying only to minors and a medical use restriction that permits the same treatments for non-transition purposes, such as precocious puberty or congenital defects.⁹ The transgender minors and their parents argued that the law violates the Equal Protection Clause by discriminating on the basis of sex and transgender status.¹⁰

The Sixth Circuit reversed a lower court’s preliminary injunction, holding that SB1 did not trigger heightened scrutiny because it did not classify based on sex or transgender status.¹¹ The Sixth Circuit concluded that the statute satisfied rational basis review.¹² The Supreme Court affirmed this ruling, and found that a mere reference to sex in a medical context is insufficient to trigger heightened scrutiny.¹³ The court reasoned that SB1 classified based upon “age” and “medical use,” concluding that “[n]either of the above classifications turns on sex.”¹⁴ The majority opinion, written by Chief Justice Roberts, reasoned that “[h]ealthcare providers may administer certain medical treatments to individuals ages 18 and older but not to minors”¹⁵ and “[h]ealthcare providers may administer puberty blockers or hormones to minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence.”¹⁶ Accordingly, Chief Justice Roberts concluded that “SB1 does not exclude any individual from medical treatments on the basis of transgender status” because it only “removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions.”¹⁷ Justice Barrett’s concurrence went further, aiming to close the door on future claims that transgender status should be treated as a suspect classification.¹⁸ She concluded that “[t]he Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status.”¹⁹

II. The Evolution of Suspect Class Doctrine and Immutability

This part examines how the suspect-class doctrine has evolved over time and whether the possibility of detransition presents a problem for the new understanding of immutability.

A. The Evolution of Suspect Class Doctrine

The concept of a suspect class originates in the Supreme Court’s attempt to identify groups that require judicial protection from majoritarian politics. Footnote Four of U.S. v. Carolene Products introduced the idea that “discrete and insular minorities” may require “a more exacting judicial scrutiny” when legislation targets them.²⁰ Over time, the Court developed four primary factors in deciding whether a group is a suspect or quasi-suspect class: a history of purposeful discrimination, the possession of an immutable or highly visible characteristic, political powerlessness, and the irrelevance of the group’s distinguishing trait to their ability to contribute to society.²¹

Justice Barrett’s assertion that transgender status is not a suspect class because it is not “definitively ascertainable at the moment of birth”²² constitutes her most significant departure from established Equal Protection logic. By citing the Sixth Circuit’s reliance on Ondo v. City of Cleveland, she perceives suspect status as a single, biological snapshot taken at the time of delivery.²³ This requirement is flawed as a matter of precedent. Unlike what Barrett claims, immutability has not always been tied to biological characteristics.²⁴

The immutability factor was originally designed to ensure that the law does not penalize individuals for “accidents of birth” or traits that are morally irrelevant to an individual’s worth.²⁵ But as the law evolved, the Court recognized that immutability should not be defined strictly as biological unchangeability but, rather, as a trait that an individual cannot change through reasonable efforts or should not be required to change because it is central to their personhood.²⁶ Justice Barrett’s Skrmetti concurrence ignores this shift. Her concurrence focuses on a biological definition that rests on birth-based ascertainability.²⁷

The Supreme Court attempted an early description of “immutable characteristics” in Frontiero v. Richardson. That description was the following:

[S]ince sex, like race and national origin, is an immutable characteristic determined solely by the accident of birth, the imposition of special disabilities upon the members of a particular sex because of their sex would seem to violate the basic concept of our system that legal burdens should bear some relationship to individual responsibility.²⁸

The Court further noted that “what differentiates sex from such non-suspect statuses as intelligence or physical disability, and aligns it with the recognized suspect criteria, is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.²⁹

But as additional characteristics were recognized, the old understanding of immutability—as strictly determined at birth—did not remain static as a legal precedent. Instead, courts increasingly adopted a broader conception of immutability that now appears throughout the case law.³⁰ Immutability not only includes “a characteristic [that] members of the group either cannot change”, but also it includes characteristics that they “should not be required to change . . . because it is fundamental to their individual identities or consciences.”³¹

The new form of immutability was articulated by Judge William Norris in his concurrence in Watkins v. U.S. Army, a Ninth Circuit case challenging the military’s refusal to re–enlist a gay soldier.³² Judge Norris argued that immutability should not require that individuals be “physically unable to change or mask” a trait.³³ Even if some people could alter characteristics such as sexual orientation through extreme measures, this possible measure did not make them meaningfully “mutable.” Many supposedly fixed traits—such as sex, citizenship, or race—can technically change, but usually only with “great difficulty” or a “traumatic change of identity,” making them effectively immutable.³⁴ Having acknowledged that “[i]t may be that some heterosexuals and homosexuals can change their sexual orientation through extensive therapy, neurosurgery or shock treatment,” he concluded “the possibility of such a difficult and traumatic change does not make sexual orientation ‘mutable’ for equal protection purposes.”³⁵ Judge Norris emphasized that immutability turns on identity rather than scientific proof of change. Traits should be protected when they are “so central to a person’s identity that it would be abhorrent for government to penalize a person for refusing to change” them.³⁶

One of the other obvious flaws in the “ascertainable at birth” requirement is that it fails to consider characteristics such as religion.³⁷ Religion has long been recognized as a suspect classification, and discrimination against religious minorities is subject to strict scrutiny under the Equal Protection Clause.³⁸ It is important to note that this protection is independent of First Amendment religious freedom: in Carolene Products, the Court did not identify religious minorities as protected merely because the First Amendment explicitly safeguards religion.³⁹ That protection had already been recognized through religion’s presence in the Bill of Rights.⁴⁰ Yet, religious identity is almost never definitively ascertainable at the moment of birth. While an individual may be born into a religious household, their personal faith is often a result of adult conversion, personal discovery, or secondary socialization.

If the government were to pass an antisemitic law that applied only to those who converted to Judaism as adults, such a law would clearly violate the Equal Protection Clause, even though the trait of “being Jewish” was not ascertainable at birth for those individuals.⁴¹ By elevating birth ascertainability to a constitutional prerequisite, Justice Barrett’s standard would logically strip religious converts—and potentially all religious minorities—of their status as a suspect class under the Fourteenth Amendment. The Court has historically protected religion under equal protection analysis not because it is fixed at birth, but because it is a fundamental aspect of identity.⁴² Regardless of when that religious belief becomes fixed, the State has no legitimate interest in coercing an alternative belief or penalizing it.⁴³

Other suspect and quasi-suspect classes also fail the birth ascertainability test. Alienage triggers strict scrutiny when classified by states. Graham v. Richardson involved Arizona state statutes that withheld welfare benefits from resident noncitizens or from noncitizens who have not lived in the United States for a designated period of years.⁴⁴ The Court held that these statutes violated the Fourteenth Amendment, explaining that “[a]liens as a class are a prime example of a ‘discrete and insular’ minority. . . for whom such heightened judicial solicitude is appropriate.”⁴⁵ Yet, alienage is a status that is may change years or decades after birth. A person born in a foreign country may enter the United States as an undocumented immigrant or a non–immigrant and later become a lawful permanent resident or a naturalized citizen. Their status as an “alien” is mutable and not permanently fixed at the moment of birth in the same way biological sex is purportedly fixed.⁴⁶ Similarly, the status of an “illegitimate” child—which triggers intermediate scrutiny—may in some circumstances be changed through the subsequent marriage of the child’s parents or paternity claims, yet the Supreme Court continues to protect this class to prevent the State from penalizing children for circumstances around the “accident” of their birth.⁴⁷

Even in cases where traditional heightened scrutiny did not apply, the Court was often hesitant to uphold laws that burdened individuals for certain circumstances beyond their control. In Plyler v. Doe, the Supreme Court invalidated a Texas law that denied public education to children who were undocumented immigrants.⁴⁸ The Court recognized that undocumented status is not strictly immutable because it results from deliberate, though unlawful, conduct.⁴⁹ But it emphasized that the statute effectively placed a discriminatory burden on children based on a legal status they had almost no ability to influence.⁵⁰ Having acknowledged that “[u]ndocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a ‘constitutional irrelevancy,’” the Supreme Court held that “[the statute] imposes a lifetime hardship on a discrete class of children not accountable for their disabling status.”⁵¹ Because Texas denied free education only to children of undocumented immigrants, the Court concluded that, “[i]f the State is to deny a discrete group of innocent children the free public education[,] . . . that denial must be justified by a showing that it furthers some substantial state interest.”⁵² The “substantial interest” standard was not part of the traditional heightened scrutiny framework in constitutional jurisprudence.⁵³ Yet, the Supreme Court still protected the interests of individuals who had no control over their circumstances, such as children brought to the United States by their parents.⁵⁴ Justice Barrett’s standard creates an arbitrary hierarchy that privileges biological traits over social and legal statuses. It implies that the Constitution only cares about accidents of birth that are visible to a doctor in a delivery room, rather than the broader set of fundamental characteristics that the State has a history of targeting for exclusion.⁵⁵

Furthermore, Barrett’s narrow birth ascertainability standard might even implicate the incidents of racial discrimination. The United States has a long legal history of individuals contesting racial classification, shown in the Supreme Court’s decision in Plessy v. Ferguson. Homer Plessy claimed that his small amount of African ancestry—one Black grandparent—was not visible and therefore should not deprive him of the rights afforded to white citizens.⁵⁶ Because his ancestry was not outwardly apparent, Plessy could potentially identify as Black, remain silent and be treated as white, or assert different identities in different contexts.⁵⁷ This example shows the weakness of treating race as strictly immutable for constitutional analysis. If racial identity may depend partly on disclosure or social perception, limiting heightened scrutiny only to traits fixed at birth would lead to illogical results.⁵⁸ This is why the Ninth Circuit Court of Appeals in Watkins reasoned the following: “Lighter skinned blacks can sometimes ‘pass’ for white, as can Latinos for Anglos, and some people can even change their racial appearance with pigment injections.”⁵⁹ But racial discrimination would not become constitutional simply because a person could change or conceal their racial identity.⁶⁰

B. Detransitioning and the Illusion of Identity Mutability: Immutability or Inflexibility?

Another question related to immutability that needs to be addressed is whether detransitioning defeats immutability. Justice Barrett claims that transgender status lacks immutability because some individuals detransition, returning to a gender identity that corresponds to their biological sex.⁶¹ She cites the acknowledgment of detransition by plaintiffs’ counsel during oral arguments as evidence that the trait is not unchanging, and she concludes “[a]ccordingly, transgender status does not turn on an ‘immutable . . . characteristi[c].’”⁶² This reasoning misconstrues the legal concept of immutability and ignores the documented causes of detransition.

While detransitioning is a phenomenon of significant clinical interest, it remains statistically rare. Prevalence estimates for detransitioning or transition regret vary depending on the criteria used, but most rigorous studies place the rate at least under 13.1%.⁶³ More importantly, the decision to detransition is rarely driven by a change in the individual’s underlying gender identity. According to a large scale study published in LGBT Health, 82.5% of those who detransitioned cited at least one external factor, such as pressure from parents (35.5%), societal stigma (32.5%), or difficulty finding employment (26.8%).⁶⁴ Only 2.4% of respondents attributed their detransition to actual doubt about their gender identity.⁶⁵

By framing detransition as evidence of mutability, Justice Barrett penalizes a group for the very discrimination and social pressure they face. If a person stops identifying as transgender because they are threatened with job loss or family rejection, that does not mean their identity is “mutable” in a constitutional sense. It simply could mean their expression of that identity has been suppressed by the State or society. To use the survival strategies of a persecuted minority as a reason to deny constitutional protection is a wrong logic that might reward the successful exertion of societal pressure.

Legal immutability has never required population-wide inflexibility. As an example, in Obergefell v. Hodges, the Supreme Court noted that sexual orientation is “immutable,”⁶⁶ even though some individuals may experience changes in attraction or identify differently over the course of their lives.⁶⁷ The Court noted that, “in more recent years[,] . . . psychiatrists and others [have] recognized that sexual orientation is both a normal expression of human sexuality and immutable.”⁶⁸ The Court’s focus was on the fact that orientation is a normal “expression” of “intimacy” and “personal bond” and that, for the vast majority of gay and lesbian people, it is a fixed and defining characteristic.⁶⁹

Justice Barrett’s application of a “zero tolerance” for change standard would invalidate almost any identity-based suspect class. For instance, individuals may undergo spontaneous physical changes or social recategorization regarding their perceived race, yet race remains the most protected suspect classification because its historical use by the State has been to create a hierarchy of power.⁷⁰ Likewise, the existence of so-called ex-gays does not necessarily undermine the immutability of sexual orientation. A claim of being ex-gay might be an initial misidentification of one’s sexuality or the influence of social or religious pressures, rather than a demonstration that sexual orientation itself is changeable.⁷¹ Thus, the existence of a small minority of people who move in and out of a class does not negate the discrete reality of the discrimination faced by the group as a whole.

III. The Amorphous Group Fallacy

Justice Barrett further contends that the transgender population is not a “discrete group” because it is “large, diverse, and amorphous.”⁷² She quotes WPATH and APA descriptions of “transgender” as an “umbrella term” encompassing a huge variety of gender identities and expressions, concluding that “[t]he boundaries of the group. . . are not defined by an easily ascertainable characteristic that is fixed and consistent across the group.”⁷³ To support this, she draws an analogy to San Antonio Independent School District v. Rodriguez, where the Supreme Court declined to recognize the poor as a suspect class.⁷⁴ In Rodriguez, the Court rejected the claim that children living in school districts with low property tax bases constituted a suspect class.⁷⁵ The Court found that “the poor” were not a definable class because they did not share a single, distinguishing characteristic that had been historically excluded.⁷⁶ Wealth is an economic metric that changes constantly, and people in low wealth districts were not necessarily “poor” in an absolute sense. In other words, many affluent people might also live in those districts.⁷⁷ Accordingly, the court concluded, “[at best, this] system . . . allegedly discriminates against a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts.”⁷⁸

But transgender status is categorically different from economic wealth. Transgender individuals are united by a specific, clinical, and social trait: the incongruence between their internal gender identity and their assigned biological sex.⁷⁹ This trait is the very thing that Tennessee’s SB1 uses to draw its legislative lines.⁸⁰ When a law specifies that medical care is forbidden if it is for the purpose of identifying with a “purported identity inconsistent with the minor’s sex,”⁸¹ it has created the very “discrete group” that Justice Barrett claims does not exist. The State itself has identified the group, bounded it by its birth sex, and targeted it for a specific medical disability.

Justice Barrett’s requirement that a group must be “fixed and consistent”⁸² internally is a misreading of the “discrete and insular” requirements.⁸³ If internal diversity were a bar to suspect status, then religion would not receive heightened constitutional protection. Religion is defined entirely by subjective, self-reported internal belief. There is no biological marker, no objective test, and no external authority that determines who sincerely holds a faith.⁸⁴ It is also a vast umbrella category, which includes thousands of distinct traditions, and personal theologies. Yet courts have never hesitated to treat “religion” as a legally recognizable category because the discreteness inquiry asks whether the state can identify and target the group.⁸⁵

The fact that the term “transgender” is an umbrella term is a feature of medical and social taxonomy,⁸⁶ not a constitutional defect. The Supreme Court has long dealt with umbrella terms. “Race” is an umbrella term that includes thousands of different ethnic and cultural identities, yet the law treats it as a discrete category for the purpose of preventing racialized caste systems.⁸⁷ By demanding a level of internal homogeneity that no large human group possesses, Justice Barrett sets an impossible standard that would effectively end the Supreme Court’s ability to protect any new minority groups. In addition, some of the confusion in Justice Barrett’s articulation appears to stem from an overly broad understanding of the term “transgender.”⁸⁸ If the term were defined more narrowly—individuals whose gender identity is not similar with their biological sex, excluding categories such as nonbinary identities—it would easily satisfy the requirement that members of the class share a common defining trait. This definition contrasts plaintiffs’ counsel’s broad definition, which included “people who fall within a transgender identity who may not fit into a binary identity.”⁸⁹

Another tension exists in the false analogies made concerning the difference between, on one hand, economic welfare and, on the other, the fundamental characteristics to one’s identity. In her concurrence, Justice Barrett relies on Lyng v. Castillo and Bowen v. Gilliard to argue that transgender status does not turn on an immutable characteristic.⁹⁰ These cases, however, dealt with administrative classifications in the context of federal welfare benefits, which are fundamentally different from the identities traditionally protected by the Equal Protection Clause.⁹¹ Lyng v. Castillo was about a challenge to a food stamp regulation that required parents, children, and siblings living together to be treated as a single “household” for the purpose of determining benefit levels.⁹² The Supreme Court found that “close relatives” were not a suspect class because the grouping was for administrative convenience and did not “directly and substantially” interfere with family living arrangements.⁹³ Similarly, Bowen v. Gilliard was concerned with a regulation in the Aid to Families with Dependent Children program that required families to assign child support payments to the State as a condition of eligibility.⁹⁴ This requirement effectively resulted in treating the income of one child as the income of the entire household.⁹⁵ The Court applied rational basis review, noting that the regulation was a rational way to distribute limited public funds among needy families.⁹⁶

Justice Barrett’s use of these cases to analyze transgender identity is a significant categorical error. Household composition for the purpose of calculating food stamps is a transient, economic arrangement; gender identity is an intrinsic, pervasive aspect of a human being’s personhood. Being a “close relative” in a welfare filing is not a defining trait that has historically been used to justify systemic social degradation or the denial of fundamental civil rights.⁹⁷ Similarly, the court in Rodriguez recognized that, “at least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantages.”⁹⁸ In contrast, transgender status is a trait that defines a person’s place in society. Comparing the two trivializes the nature of transgender status and suggests that gender identity is no more significant to the human experience than a child support assignment.

IV. The Misunderstanding of Political Powerlessness

Justice Barrett also claims that transgender status does not meet the “politically powerless” requirement for suspect status.⁹⁹ But the “political powerlessness” factor does not require a group to have zero political influence;¹⁰⁰ it asks whether they are so removed from the political mainstream that the traditional democratic process is unlikely to protect their fundamental rights.¹⁰¹

It is important to note that political powerlessness “does not require a showing that the group seeking recognition as a protected class is, in fact, without political power.”¹⁰² As the Connecticut Supreme Court held in 2008, “courts continue to apply heightened scrutiny to statutes that discriminate against women and racial minorities notwithstanding the great strides that both groups have made and continue to make in recent years in terms of their political strength.”¹⁰³ Sex classification poses another relevant example. In Frontiero, the U.S. Supreme Court recognized sex as a quasi-suspect class.¹⁰⁴ This recognition occurred after the Supreme Court acknowledged that “the position of women in America has improved markedly in recent decades,”¹⁰⁵ and that, “when viewed in the abstract, women do not constitute a small and powerless minority.”¹⁰⁶ The Court also recognized that Congress had increasingly demonstrated concern about classifications based on sex, as “women were not politically powerless in an absolute sense when they first were accorded heightened constitutional protection in the early 1970s.”¹⁰⁷ Title VII of the Civil Rights Act of 1964 explicitly prohibited employers from discriminating against individuals on the basis of race, color, religion, sex, or national origin.¹⁰⁸ Even after Title VII’s passage, the Supreme Court still held that women satisfy the political powerlessness requirement of a quasi-suspect class in the legal sense.¹⁰⁹ Therefore, “political powerlessness” indicates “a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process.”¹¹⁰ This is quite contrary to how Justice Barrett explained “political powerlessness” in a literal way as “leav[ing] the affected persons altogether unable to protect themselves in the political process.”¹¹¹ This articulation of “political powerlessness” is erroneous.

It is also noteworthy that the Sixth Circuit Court of Appeals opinion that Justice Barrett repeatedly relied on made a similar mistake by noting that “[a] national anti-discrimination law, Title VII, protects transgender individuals in the employment setting” in concluding that transgender individuals are not politically powerless.¹¹² While it is accurate that Title VII protects transgender individuals from employment discrimination in the private sector, it is equally important to ask how that protection come into being. The answer is the Supreme Court’s decision in Bostock v. Clayton County, a case interpreting Title VII.¹¹³ In other words, that protection did not result from new legislation enacted by a political branch—say, Congress—but rather it emerged through judicial interpretation. This reality debunks the Sixth Circuit Court of Appeals’s reasoning: the protection for transgender individuals came from the courts, rather than from the ordinary political process.

The current legislative landscape is a textbook example of majoritarian overreach against a vulnerable minority. Over half of U.S. states have enacted comprehensive bans on gender affirming care for minors.¹¹⁴ The fact that legislatures are passing these laws with overwhelming majorities—and, often, overriding gubernatorial vetoes—demonstrates that transgender people lack the political power to defend themselves against the State.¹¹⁵ According to the Carolene Products framework,¹¹⁶ this situation is exactly when the judiciary is supposed to step in.¹¹⁷ Under this view, political process is systematically distorted that discrete and insular minorities are unable to protect their interests through ordinary political channels.¹¹⁸ Heightened scrutiny is appropriate not because courts are enforcing substantive moral judgments, but because certain groups are effectively excluded from meaningful participation in political decision-making.¹¹⁹ If the Supreme Court only protects groups that have already won political power, then the Equal Protection Clause becomes a reward for success, rather than a shield for the vulnerable.¹²⁰

Conclusion

By characterizing the transgender population as an “insufficiently discrete and insular minority,” Justice Barrett would allow the State to ignore the specific harms caused by targeted legislation.¹²¹ She asserts that recognizing transgender persons as a suspect class would require courts to “oversee all manner of policy choices.”¹²² This is a classic floodgates argument used to justify judicial abdication.¹²³ But the standard of heightened scrutiny does not strip legislatures of their power; it simply requires them to prove that their classifications are “substantially related” to an “important government interest.”¹²⁴

Tennessee’s interest in “protecting minors” is a legitimate one,¹²⁵ but under heightened scrutiny, the State would have to prove that banning hormones only for transgender youth—while allowing them for cisgender youth—is substantially related to achieving that goal.¹²⁶ By applying only rational basis review, Justice Barrett allows the State to use phrases such as “concededly weak evidence”¹²⁷ and “scientific uncertainty”¹²⁸ as a pretext for identity-based exclusion. The standard of review incorporated by the courts is critical, as it will have significant impact on transgender rights in the near future.

* Mohammad Khalilzadeh is a J.S.D. candidate at the University of Illinois College of Law. He previously taught Law 500 (Legal Research and Writing) for graduate law students at the University of Illinois as an adjunct instructor. His scholarship focuses on constitutional law, constitutional design, equal protection, judicial review, and comparative constitutional law.

1. U.S. v. Skrmetti, 605 U.S. 495 (2025).

2. Tenn. Code Ann. §§ 68–33–103(b)(1)4 (A-B) (2023).

3. Id. at 547–57 (Barrett, J., concurring).

4. Id. at 550 (Barrett, J., concurring).

5. Id. at 550–51 (Barrett, J., concurring).

6. See infra Section II.B.

7. Id. at 556 (Barrett, J., concurring).

8. Id. at 505–506.

9. Id.

10. Id. at 507.

11. L.W. v. Skrmetti, 83 F.4th 460, 480 (6th Cir. 2023).

12. Id. at 486–87.

13. Skrmetti, 605 U.S. at 511–13.

14. Id. at 511.

15. Id.

16. Id. at 514 (emphasis added).

17. Id. at 518-19.

18. Id. at 547–57 (Barrett, J., concurring).

19. Id. at 557 (Barrett, J., concurring).

20. U.S. v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

21. Bowen v. Gilliard, 483 U.S. 587, 602-603 (1987); Frontiero v. Richardson, 411 U.S. 677, 686 (1973).

22. Skrmetti, 605 U.S. at 550 (Barrett, J., concurring).

23. Id.

24. See Marcy Strauss, Reevaluating Suspect Classifications, 35 Seattle U. L. Rev. 135, 162 (2011).

25. Frontiero, 411 U.S. at 686.

26. Tiffany C. Graham, The Shifting Doctrinal Face of Immutability, 19 Va. J. Soc. Pol’y & L. 169, 200 (2011). (describing the shift from a “traditional fault-based model to a new autonomy-based model”).

27. Skrmetti, 605 U.S. at 550 (Barrett, J., concurring).

28. Frontiero, 411 U.S. at 687.

29. Id.

30. Cabrera v. Garland, 100 F.4th 312, 321 (1st Cir. 2024); see Montoya-Lopez v. Garland, 80 F.4th 71, 82 (1st Cir. 2023); Macedo Templos v. Wilkinson, 987 F.3d 877, 882–83 (9th Cir. 2021).

31. Id.

32. Watkins v. U.S. Army, 875 F.2d 699 (9th Cir. 1989).

33. Id. at 726.

34. Id.

35. Id.

36. Id.

37. See Brief of Amici Curiae Professors of Constitutional Law in Support of Respondents at 11–12, Little v. Hecox & West Virginia v. B.P.J., Nos. 24-38, 24-43 (Nov. 17, 2025).

38. City of New Orleans v. Dukes, 427 U.S. 297, 303 (1976) (reasoning “[u]nless a classification trammels fundamental personal rights or is drawn upon inherently suspect distinctions such as race, religion, or alienage, our decisions presume the constitutionality of the statutory discriminations”); Burlington N. R.R. Co. v. Ford, 504 U.S. 648, 651 (1992) (describing classifications drawn along “suspect lines like race or religion”); see also Steven G. Calabresi & Abe Salander, Religion and the Equal Protection Clause: Why the Constitution Requires School Vouchers, 65 Fla. L. Rev. 909 (2013) (arguing that “[r]eligion is a suspect classification such that discrimination on the basis of religion ought always to be subjected to strict scrutiny, which is strict in theory and fatal in fact.”).

39. Michael C. Dorf, Is Religion a Suspect Classification Independent of the First Amendment?, Dorf on Law (Nov. 21, 2025), https://www.dorfonlaw.org/2025/11/is-religion-suspect-classification.html [https://perma.cc/9V7E-TPS8].

40. Id.

41. Id.

42. Id.

43. See Latta v. Otter, 771 F.3d 456, 464 n.4 (9th Cir. 2014) (reasoning that “[w]e have recognized that ‘[s]exual orientation and sexual identity are immutable; they are so fundamental to one’s identity that a person should not be required to abandon them’” (quoting Hernandez-Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000)); De Leon v. Abbott, 791 F.3d 619 (5th Cir. 2015) (reasoning that “sexual orientation is so fundamental to a person’s identity that one ought not be forced to choose between one’s sexual orientation and one’s rights as an individual—even if one could make a choice”).

44. Graham v. Richardson, 403 U.S. 365, 367 (1971).

45. Id. at 372.

46. Id.

47. Clark v. Jeter, 486 U.S. 456, 461 (1988) (holding that classifications based on illegitimacy are subject to intermediate scrutiny); Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972) (arguing that “visiting this condemnation on the head of an infant is illogical and unjust”).

48. Plyler v. Doe, 457 U.S. 202 (1982).

49. Id. at 223.

50. Id.

51. Id.

52. Id. at 230.

53. See Mary Jean Moltenbrey, Alternative Models of Equal Protection Analysis: Plyler v. Doe, 24 B.C.L. Rev. 1363, 1366 (1983) (reasoning that “[t]he Plyler opinion indicates a strong shift away from a strict two-tiered equal protection analysis and toward the use of a balancing approach”).

54. Id.

55. Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 15 (2015) (“Immutability is therefore not confined to biological traits; as this legitimacy example demonstrates, social categories too may be assigned at birth.”).

56. Plessy v. Ferguson, 163 U.S. 538 (1896). (Plessy reasoned “that the mixture of colored blood was not discernible in him, and that he was entitled to every recognition, right, privilege, and immunity secured to the citizens of the United States of the white race by its constitution and laws.”).

57. Anthony R. Enriquez, Assuming Responsibility for Who You Are: The Right to Choose “Immutable” Identity Characteristics, 88 N.Y.U. L. Rev. 373, 383 (2013).

58. Id. at 384.

59. Watkins v. U.S. Army, 837 F.2d 1428, 1446 (9th Cir. 1988).

60. Id. (reasoning that “[r]acial discrimination, for example, would not suddenly become constitutional if medical science developed an easy, cheap, and painless method of changing one’s skin pigment”).

61. U.S. v. Skrmetti, 605 U.S. 495, 551 (2025) (Barrett, J., concurring).

62. Id.

63. Pablo Expósito-Campos et al., Gender Detransition: A Critical Review of the Literature, 51 Actas Esp. Psiquiatr. 98, 103 (2023).

64. Fenway Health, New Study Shows Discrimination, Stigma, and Family Pressure Drive “Detransition” Among Transgender People (Apr. 7, 2021), https://fenwayhealth.org/new-study-shows-discrimination-stigma-and-family-pressure-drive-detransition-among-transgender-people/ [https://perma.cc/JV2R-MCT9].

65. Id.

66. Obergefell v. Hodges, 576 U.S. 644, 661 (2015).

67. See Eliot T. Tracz, The Inscrutable Bisexual: An Essay on Bisexuality and Immutability, 21 Seattle J. Soc. Just. 917, 930 (2023) (questioning 100% inflexibility for “individuals who have experienced a lifelong attraction to people of the same sex only to discover later in life that they are, in fact, capable of attraction to someone of another sex or gender”).

68. Obergefell, 576 U.S. at 661.

69. Id. at 666 (“The nature of marriage is that, through its enduring bond, two persons together can find other freedoms, such as expression, intimacy, and spirituality. This is true for all persons, whatever their sexual orientation.”); see also Lawrence v. Texas, 539 U.S. 558, 567 (2003) (reasoning that, “[w]hen sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring”).

70. See Michael C. Dorf, The Roberts Court Puts a Velvet Glove on the Iron Fist of Anti-Trans Backlash, Justia Verdict (June 23, 2025), https://verdict.justia.com/2025/06/23/the-roberts-court-puts-a-velvet-glove-on-the-iron-fist-of-anti-trans-backlash [https://perma.cc/APG9-9Q3D].

71. Tracz, supra note 67.

72. U.S. v. Skrmetti, 605 U.S. 495, 551 (2025) (Barrett, J., concurring).

73. Id. (Barrett, J., concurring).

74. Id. at 550 (Barrett, J., concurring).

75. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1 (1973).

76. Id. at 25 (reasoning that “the disadvantaged class is not susceptible of identification in traditional terms”); see id. at 28.

77. Id. at 23 (“Indeed, there is reason to believe that the poorest families are not necessarily clustered in the poorest property districts.”).

78. Id. at 28.

79. Transgender, Merriam-Webster, https://www.merriam-webster.com/dictionary/transgender [https://perma.cc/J3P3-4M5Q].

80. Skrmetti, 605 U.S. at 505–06.

81. Tenn. Code Ann. §§ 68–33–103(a)(1)(A), (a)(1)(B) (2023).

82. U.S. v. Skrmetti, 605 U.S. 495, 551 (Barrett, J., concurring).

83. U.S. v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

84. Thomas v. Review Board, 450 U.S. 707, 714 (1981) (reasoning that “the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question.”).

85. See supra note 38.

86. Transgender, supra note 79.

87. See Loving v. Virginia, 388 U.S. 1, 11 (1967); Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 227 (1995) (holding that racial classifications are subject to strict scrutiny).

88. Transcript of Oral Argument at 100, United States v. Skrmetti, No. 23-477 (Dec. 4, 2024).

89. Id.

90. Skrmetti, 605 U.S. at 550–01 (Barrett, J., concurring).

91. Lyng v. Castillo, 477 U.S. 635, 636 (1986); Bowen v. Gilliard, 483 U.S. 587, 591–94 (1987).

92. Lyng, 477 U.S. at 636.

93. Id. at 638.

94. Bowen, 483 U.S. at 591–94.

95. Id. at 594.

96. Id. at 603.

97. Lyng, 477 U.S. at 636; see Mass. Bd, of Retirement v. Murgia, 427 U.S. 307, 313–14 (1976).

98. San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 24 (1973).

99. U.S. v. Skrmetti, 605 U.S. 495, 556 (2025).

100. William N. Eskridge Jr., Is Political Powerlessness a Requirement for Heightened Equal Protection Scrutiny?, 50 Washburn L.J. 1, 18 (2010) (reasoning that “a minority group is totally powerless, because of social prejudice or pervasive stereotyping, the Equal Protection Clause will not protect that group”).

101. See Varnum v. Brien, 763 N.W.2d 862, 894 (Iowa 2009) (reasoning that “the political powerlessness factor of the level-of-scrutiny inquiry does not require a showing of absolute political powerlessness”).

102. Kerrigan v. Comm’r of Pub. Health, 289 Conn. 135, 196 (2008).

103. Id. at 191.

104. Frontiero v. Richardson, 411 U.S. 677, 685 (1973).

105. Id.

106. Id. at 686 n. 17.

107. Kerrigan, 289 Conn. at 196.

108. 42 U.S.C. § 2000e-2(a).

109. Frontiero, 411 U.S. at 687; see also Marcy Strauss, Reevaluating Suspect Classifications, 35 Seattle U. L. Rev. 135, 157 (2011) (describing the practice of measuring political powerlessness by the mere existence of “beneficial laws” as “naïve”).

110. Kerrigan, 289 Conn. at 197.

111. U.S. v. Skrmetti, 605 U.S. 495, 556 (2025).

112. L.W. v. Skrmetti, 83 F.4th 460, 487 (6th Cir. 2023).

113. Bostock v. Clayton Cnty., 590 U.S. 644, 683 (2020) (“In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”).

114. Movement Advancement Project, Healthcare Laws and Policies: Bans on Gender-Affirming Care for Transgender Youth (2025); see also Jody L. Herman, Andrew R. Flores & Christy Mallory, The Impact of 2025 State Anti-Transgender Legislation on Youth 3 (Williams Inst., UCLA Sch. of L. 2026).

115. Morgan Chilson, Kansas Senate Overrides Governor’s Veto of Anti-Trans Bathroom Bill, Kan. Reflector (Feb. 17, 2026), https://kansasreflector.com/2026/02/17/kansas-senate-overrides-governors-veto-of-anti-trans-bathroom-bill/ [https://perma.cc/8ZSV-LR2A].

116. U.S. v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938).

117. Katie Eyer, Anti-Transgender Constitutional Law, 77 Vand. L. Rev. 1113, 1128 (2024) (arguing that, after applying the traditional suspect-class test, it is difficult to deny that discrimination against transgender people demands quasi-suspect status)

118. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 83-86 (1980); see also David A. Strauss, Modernization and Representation Reinforcement: An Essay in Memory of John Hart Ely, 57 Stan. L. Rev. 761, 764–65 (2004).

119. See Ely, supra note 118. at 73-77; see also Strauss, supra note 118, 766.

120. See Ely, supra note 118, at 103–04 (arguing that judicial review is justified when the political process fails to protect vulnerable minorities).

121. U.S. v. Skrmetti, 605 U.S. 495, 557 (Barrett, J., concurring).

122. Id. at 551 (Barrett, J., concurring).

123. See Gene R. Nichol Jr., Judicial Abdication and Equal Access to the Civil Justice System, 60 Case W. Rsrv. L. Rev. 325, 359 (2010).

124. See, e.g., Craig v. Boren, 429 U.S. 190, 197 (1976) (holding that gender classifications must be “substantially related to achievement of important governmental objectives”).

125. See supra, Part II.

126. See supra, Part II.

127. Skrmetti, 605 U.S. at 547 (Thomas, J., concurring).

128. Id. at 540 (Thomas, J., concurring).

As Part II details, this institutionalized deception allows states to project a strong deterrent threat and to limit the costs of incarceration. Both Republican- and Democratic-controlled states have embraced this practice for financial or ideological reasons.

Part III contends, however, that this system of sentencing deception carries substantial social costs. Because most crimes are committed by repeat offenders, the deterrent effect of inflated sentences is largely illusory. More damaging is the erosion of the criminal justice system’s credibility once the public recognizes that announced sentences do not mean what they appear to mean. As institutional trust declines, so too does the system’s normative authority to secure people’s assistance, cooperation, acquiescence, and compliance, as well as its ability to induce people to internalize its norms.

These concerns help explain the “truth in sentencing” movement examined in Part IV, including the federal Sentencing Reform Act of 1984, which requires offenders to serve at least 85% of their imposed sentences—though few states have followed suit.

The Article does not at all argue for longer prison terms but rather for greater transparency. Whatever imprisonment policies states choose, they should accurately disclose at sentencing how offenders will be punished. Greater transparency would mitigate the harms of institutionalized deception and enable more rational and informed criminal justice policymaking.

* Colin S. Diver Professor of Law at the University of Pennsylvania. As a matter of full disclosure, Professor Robinson was one of the original Commissioners of the United States Sentencing Commission, which was created by the federal Sentencing Reform Act of 1984, which also shifted the federal system to one of “truth in sentencing.” We thank Sarah Robinson for her extensive research contributions.

* Hugh Rennie is a member of the University of Pennsylvania Law School Class of 2025.

This Article surveys how what I term “contagion policing” manifests, identifies the many serious harms it causes, and offers a new policing model dedicated to achieving positive outcomes in both public safety and public health. To achieve change, both the mien and minds of police must be transformed—from the current warrior mentality to one where they see themselves, and they are seen as, guardians of both public health and public safety. A large literature demonstrates that preventive interventions produce significant decreases in crime and promote community well-being. These findings should be deployed to inform new policing tactics and strategies. With violent crime especially, intervention is needed—to hold individuals accountable, prevent future harm, and signal to the community that the behavior will not be tolerated. Police, in short, can be guardians of community health yet still invoke the coercive force of the state when circumstances require.

To ensure success of the model, a new way of assessing police effectiveness is needed. Police performance should no longer be measured solely in terms of crime control metrics but rather be tied to both improved public safety and public health outcomes. For instance, even if resorting to high-intensity arrests for minor offenses reduces crime to a degree, evaluation should take into account the significant harms the tactic causes individuals and the communities in which they live. Importantly, moreover, metrics of success should be informed by the views of community members and key stakeholders, such as clergy and businesses, who for too long have been excluded from the goals and practices of police.

Ultimately, public health and public safety must be seen as inseparably linked. Both are critically important public goods and positive outcomes for each should be the goal of policing.

* University Research Professor, Wake Forest University School of Law. Thanks to Susan Bandes, Nadia Banteka, Alyse Bertenthal, Bennett Capers, Andrew Ferguson, Rachel Harmon, Aziz Huq, Eisha Jain, David Logan, Christopher Slobogin, Ron Wright, and Bob Weisberg for their helpful comments.

Using empirical evidence from other countries that have prosecuted state officials for their crimes over the last three decades, this study sheds light on the possible effects of these prosecutions on democratic institutions and behaviors. First, it examines an in-depth case study of Guatemala, a country where this issue recently came to the fore, to develop a set of hypotheses about the democratic effects of punishing state officials. To determine whether the lessons gleaned from Guatemala are generalizable, it tests these hypotheses using the most extensive global data set of prosecutions of government officials in domestic courts, which specifically focuses on human rights prosecutions.

Interestingly, the findings reveal a paradox. While criminal prosecutions of state officials for human rights violations are associated with some positive outcomes, like increased civil society activism and pro-democratic mobilization, they are also associated with greater political polarization and anti-system backlash. By contrast, they appear to have little effect on democratic institutions. Considering these data, a central takeaway is that the democratic effect of prosecuting political leaders tends to rest with the people. Whether punishing them helps to ensure a more democratic future depends more on how the populace responds—negatively or positively—than on the limited institutional effects resulting from punishment.

* Rachel López is a Leonard Barrack ’68 Chair in Law at Temple University Beasley School of Law.

* Geoff Dancy is an Associate Professor in the Department of Political Science at the University of Toronto, Canada. The authors are grateful to Gabriella Villafan for her research assistance. This research was also facilitated by fellowships with the Program in Law and Public Policy at Princeton University, the Carr Center for Human Rights Policy at the Harvard Kennedy School, the Lauterpacht Centre for International Law at the University of Cambridge, the Orville H. Schell, Jr. Center for International Human Rights at Yale Law School, and the Max Planck Institute for Comparative Public Law and International Law as well as Global Scholar Award from the Fulbright U.S. Scholar Program. We are also thankful for the opportunity to present this research at the “Transitions to Democracy Revisited” workshop at Princeton University, the Global Justice Workshop at Harvard Law School, CrimFest, the American Society of International Law’s International Criminal Law Interest Group Works in Progress Conference, and the Graciela Olivárez Latinas in the Legal Academy (“GO LILA”) Workshop, as well as at the American Associations of Law Schools (“AALS”) 2024 Annual Meeting. We are grateful to have had the immense privilege of presenting this research to many of Guatemalan human rights lawyers and indigenous rights advocates who pushed for criminal accountability on June 10, 2025, and to researchers at Diálogos on June 11, 2025 in Guatemala City. Their feedback was critical to this Article. This piece was enriched by feedback from Raquel Aldana, Yutian An, Gabriella Blum, Rita Canek, Stephen Cody, Netta Cohen Barak, Connie de la Vega, Erick de León, Gabriela Domínguez, Karen Engle, Astrid Escobedo, Mailyn Fidler, John Goldberg, Daniel Haering, María Hortencia Lajuj, Juan Gabriel Ixcamparij Nolasco, Marissa Kardon Weber, Stephen Koh, Ryan Liss, Orlando López, Jane Manners, Dennis Martínez, Candida Mercedes Morales, Daniel McConkie, Carlos Morales, Rony Morales, Raul Nájera, Daniel Nuñez, Cristian Otzin, Deborah Pearlstein, Hilda Pineda, Juan Luis Polanco Santizo, Jaya Rami-Nogales, Evelyn Quina Oxlaj, Evelyn Marcelina Rangel-Medina, Itay Ravid, Dunia Ramirez, Gloria Reyes, Kim Lane Scheppele, Kathyrn Sikkink, Silvio Tay, and Richard Wilson. Finally, we would also like to express our sincere gratitude to the editors of the University of Illinois Law Review, especially Kendall Crispin, Abby Milhiser, and Brad Schutter.