As anticipated, and as Professor Jacobson reported earlier, in a 6-3 ruling, the US Supreme Court has upheld Tennessee’s ban on transgender treatments for minors, rejecting the government’s Equal Protection challenge under the 14th Amendment.
The closely watched case, U.S. v. Skrmetti, reached the Supreme Court last year when the government[*] petitioned its review of the Sixth Circuit Court of Appeals’ earlier decision upholding the Tennessee ban.
I covered the lead-up to Skrmetti here and here.
In January, I predicted how the Court would rule and why:
In a 6-3 decision, the US Supreme Court will uphold Tennessee’s transgender care ban for minors, because the law doesn’t discriminate based on sex. Its restrictions are based on age and use, treating both sexes equally.And because transgender care is a hotly debated area of medicine, the court will rule that it should be left to lawmakers—who take expert testimony and are accountable to the people they represent—not judges, to determine state policy.
So it came as some relief yesterday when Chief Justice Roberts, joined by the other five conservative Justices—and over the dissent of Sotomayor, Kagan, and Jackson—reached the same conclusion, for the same reasons.
In retrospect, I should have also predicted that Roberts would write the opinion, because this case was perfectly suited to his famous—or rather, infamous—exercise of judicial restraint. As Thomas put it in his concurrence, “by correctly concluding that SB1 warrants the ‘paradigm of judicial restraint’ … the Court reserves to the people of Tennessee the right to decide for themselves.”
In Tennessee, the people’s lawmakers heard the firsthand accounts of devastated detransitioners—patients who took these life-altering puberty blockers and hormone treatments, only to regret them later in life. They found that such treatments “can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering from adverse and sometimes fatal psychological consequences”—and that “minors ‘lack the maturity to fully understand and appreciate’ these consequences and may later regret undergoing the treatments.”
Alarmed by the risk of permanent damage to their health, the Tennessee legislature enacted a law to prohibit the treatments in 2023.
The Tennessee statute (SB1) forbids doctors from prescribing puberty blockers and hormone therapy to children until they turn 18. Sex-change surgeries for minors are also prohibited by the statute, though they were not directly challenged in the lawsuit.
However, Tennessee only bans these medical interventions when they are prescribed for gender transitioning. It allows their continued use for other medical purposes, such as congenital defects, precocious puberty, disease, and physical injuries.
The Court held that the Tennessee ban did not violate the Equal Protection Clause by discriminating based on sex, because it doesn’t discriminate based on sex. Again, its distinctions are based on age and use: The law “prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor’s sex,” Roberts wrote.
And just because a statute refers to sex, doesn’t mean it discriminates based on sex: “This Court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny, and such an approach would be especially inappropriate in the medical context,” Roberts wrote. “When properly understood from the perspective of the indications that puberty blockers and hormones treat, SB1 clearly does not classify on the basis of sex.”
The Court also ruled that the law doesn’t discriminate against transgender individuals, because it doesn’t classify based on transgender status.
Since the Tennessee ban doesn’t classify on any bases to warrant heightened equal protection view, the Court applied the rational basis test, a standard it “clearly meets.” Under this relaxed inquiry, the Court we will uphold a statutory classification so long as there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.”
And here the dissent, written by Justice Sotomayor, and the majority part ways. Sotomayor insisted “Tennessee’s law expressly classifies on the basis of sex and transgender status,” requiring more than “mere rational-basis review.”
“The problem with the majority’s argument,” Sotomayor wrote, is that the very “medical purpose” SB1 prohibits is defined by reference to the patient’s sex.
It’s easy to pile on the liberal justices, but I would not be so quick to dismiss this argument. At least, Justice Alito wasn’t.
While Alito mostly agreed with the majority that Tennessee’s SB1 does not classify on the basis of “sex,” he did not join its conclusion that SB1 does not classify on the basis of “transgender status.”
“There is a strong argument that SB1 does classify on that ground,” he wrote, “but I find it unnecessary to decide that question.” [emphasis mine] Alito would reject the plaintiffs’ argument, because, regardless, neither transgender status nor gender identity should be treated as a suspect or “quasi-suspect” class” warranting higher scrutiny.
In her concurrence, Justice Barrett, who has come under fire for wobbling, also declined to characterize “transgender status” as a suspect class.
As I expected, the Court steered very clear of its fraught opinion in Bostock v. Clayton County, the case that flung open the door to allowing biological men into women’s spaces. In Bostock, the Court held that an employer who fires an employee for being gay or transgender violates Title VII’s prohibition on discharging an individual “because of ” their sex. “We have not yet considered whether Bostock’s reasoning reaches beyond the Title VII context,” Roberts wrote, “and we need not do so here,” because neither sex nor transgender status is a “but-for” cause triggering operation of the Tennessee law.
Justice Thomas, in his concurrence, went futher, emphasizing that “in constitutional challenges, courts need not engage Bostock at all.” [emphasis mine].
My favorite part of Thomas’ concurrence, though, was when he rejected the governments’ arguments for deferring to the “authority of the expert class”:
Before this Court, the United States asserted that ‘overwhelming evidence’ supports the use of puberty blockers and cross-sex hormones for treating pediatric gender dysphoria, and that this view represents ‘the overwhelming consensus of the medical community.’
Please. If the last two years have taught us anything, it’s that that “consensus” is a manufactured one. “The treatments at issue are subject to a rapidly evolving debate that demonstrates a lack of medical consensus over their risks and benefits,” Thomas wrote. Under these conditions, it is imperative that courts treat state legislation with “a strong presumption of validity.”
And here, the majority, including Alito, agreed, concluding:
Our role is not “to judge the wisdom, fairness, or logic” of the law before us … but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.”
Leaving it to “the people,” however, includes the people in those states—half the country—that have not banned so-called “gender-affirming care.”
Some were disappointed that the Court didn’t do more to end these life-altering trans care treatments:
While Tennessee’s victory is a victory for all states with similar bans on transgender treatments for minors, the Court’s limited ruling goes no further, nor should it. The blue states that still subject their youth to these risky, irreversible unscientific procedures have no one to blame but themselves.
[*]Earlier this year, the Trump Administration formally withdrew the Biden Administration’s objections to the ban but did not ask the Court to dismiss the case.
CLICK HERE FOR FULL VERSION OF THIS STORY