On June 18, the US Supreme Court upheld a Tennessee law that prohibits some medical treatments for transgender minors. Writing for the 6-3 majority in US v. Skrmetti, Chief Justice John Roberts stated that the law does not violate the equal protection guarantee of the Fourteenth Amendment.
The court’s decision removes a substantial constitutional argument against laws and policies in 27 states that limit access to gender-affirming care, said Michigan Law’s Samuel Bagenstos, the Frank G. Millard Professor of Law, and Margo Schlanger, the Wade H. and Dores M. McCree Collegiate Professor of Law.
Read further for their insights into the court’s decision.
1. What are the legal arguments the parties made in this case?
In 2023, Tennessee enacted a law titled Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity. It prohibits doctors and other health care providers from prescribing or dispensing puberty blockers or hormones to anyone under 18 if that treatment is intended as gender-affirming care—that is, to treat gender dysphoria or distress caused by a mismatch between the minor’s sex assigned at birth and gender identity. But the law permits providers to administer the very same treatments if they are intended to treat other issues—for example, premature puberty.
The plaintiffs argued that the Tennessee law is unlawfully discriminatory under the Constitution’s equal protection clause.
They pointed out that the statute makes the availability of the treatment turn on the sex of the patient—a cisgender girl can receive hormones to limit excessive facial hair, for example, but a transgender girl (that is, someone assigned male at birth) cannot. A cisgender boy can receive hormones to address excessive breast tissue, but a transgender boy (that is, someone assigned female at birth) cannot.
Because the law discriminates on the basis of sex, they argued it would be lawful only if the state could provide a very persuasive justification—and no such justification was on offer. The plaintiffs also argued that the law discriminates on the basis of transgender status and that discrimination against transgender people should receive heightened judicial scrutiny.
The state contested both of these points. It argued that the law does not discriminate on the basis of the sex of the patient but rather simply distinguishes between treatment for different conditions—nobody under 18, male or female, can receive puberty blocker or hormone treatment for gender dysphoria.
For similar reasons, the state also argued that the law does not discriminate on the basis of transgender status. And even if the law is thought to discriminate against transgender people, the state argued, it still passes constitutional muster because transgender people do not constitute a “suspect” or “quasi-suspect” class triggering heightened scrutiny of discrimination against them.
The Biden administration’s Department of Justice was one of the plaintiffs, along with several private individuals; after oral arguments, the Trump administration filed a letter with the court abandoning the Biden administration’s position, though it did not ask the court to dismiss the case.
2. What did the Supreme Court decide?
By a 6-3 vote, the court agreed with Tennessee that its law does not “classify” by sex or transgender status. Chief Justice Roberts’s majority opinion concluded that the law is constitutional so long as it satisfies minimal “rational basis” review—a standard that gives “wide latitude” to the state. And Roberts concluded that the Tennessee law does indeed satisfy that deferential standard, based on the state’s determination “that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence.” The majority held that the law is a rational response to that uncertainty. The fact that Tennessee allows children to receive the same hormone treatments for other conditions, the court concluded, does not undercut the rationality of the state’s law.
Notably, the court did not decide whether or not a state’s discrimination against transgender people triggers heightened constitutional scrutiny. The majority opinion avoided that question because it determined that the Tennessee law did not in fact discriminate against transgender people. Justice Alito wrote a separate concurrence in which he suggested, to the contrary, that the law likely does constitute discrimination based on transgender status. But he voted to reject the constitutional challenge anyway because he concluded that discrimination against transgender people should not trigger heightened scrutiny. Justice Barrett wrote a separate concurrence reaching the same conclusion.
Justice Sotomayor wrote the principal dissent, joined by Justices Kagan and Jackson. She concluded that the Tennessee law does discriminate on the basis of both sex and transgender status and that it should receive heightened judicial scrutiny for both reasons. And she suggested that the law would likely fail that more searching judicial review because it lacks a sufficiently direct and substantial relationship to the state’s purported goal of protecting children’s health. In particular, she noted that Tennessee allows children to receive puberty blockers and hormones to treat conditions other than gender dysphoria, even though the risks are the same in those contexts. And she found it “difficult to ignore that Tennessee professes concern with protecting the health of minors while categorically banning gender-affirming care for even those minors exhibiting the most severe mental-health conditions, including suicidality.”
3. Do you think the case was correctly decided?
No.
Justice Sotomayor was persuasive: Under the Tennessee law, a child assigned the female sex at birth who has unwanted facial hair could lawfully obtain hormone treatments to enable her to look less masculine, but a child assigned the male sex at birth who has unwanted facial hair and wishes to look less masculine will be denied precisely the same hormone treatment. That is, as a formal matter, sex discrimination. It also implicates the core concern of the Supreme Court’s sex discrimination jurisprudence—that the state should not use its laws to force individuals to conform to a stereotyped view of how members of one sex should act.
In addition to discriminating on the basis of sex, the Tennessee law also discriminates on the basis of gender identity. The law singles out for a ban a key treatment that transgender people seek precisely because they are transgender. And the history—and continuing pattern—of widespread state-sponsored and private discrimination, repression, and even violence against transgender people justifies imposing heightened constitutional scrutiny when assessing laws that discriminate on the basis of transgender status. For the reasons Justice Sotomayor highlighted, the Tennessee law would likely have failed heightened scrutiny.
4. Were you surprised by anything in the court’s decision?
Based on the oral argument, the result, the reasoning, and even the split among the justices were all quite predictable. It was mildly surprising that Justice Gorsuch did not write separately to explain his views. Justice Gorsuch wrote the court’s Bostock opinion holding that discrimination on the basis of transgender status is inherently discrimination on the basis of sex under Title VII. One might have expected him to offer some reason why he rejected the sex discrimination claim here when he accepted it in Bostock. He did join the majority’s conclusion that the law here did not discriminate on the basis of transgender status, so there was no logical requirement for him to explain the distinction. But a lot of members of the public would have no doubt liked to have seen him explicitly describe how he thought about the relationship between this case and Bostock.
5. What are the immediate and longer-term implications of the court’s decision?
The Kaiser Family Foundation has reported that 27 states have laws or policies on the books that limit youth access to gender-affirming care. The most immediate implication of the court’s decision is that it removes one very substantial constitutional argument against those policies. The court did not address other arguments that the plaintiffs have made against policies like these—that they unconstitutionally impinge on parental rights guaranteed by the due process clause or that they violate the Affordable Care Act or the Medicaid Act. So those arguments remain open in the lower courts, though the Supreme Court’s decision sends a pretty strong and negative signal regarding its openness to them.
The court’s decision comes at a time when some states and the federal government are implementing other policies—in schools, sports, the military, and elsewhere—targeting transgender individuals. As courts address challenges to those policies, they will have to decide whether the policies unlawfully discriminate on the basis of sex or transgender status. The judges in those cases will need to decide just how much of the Supreme Court’s Skrmetti decision depends on its medical care context and on concern about minors and their developmental status, and how much of that decision reflects a more general turn against protecting transgender individuals against oppressive laws.
Either way, the Skrmetti decision sends a strong and unfortunate signal of support for the ongoing attacks on transgender people in the public and private spheres.
