The most critical exchanges in the United States v. Skrmetti argument at the Supreme Court involved two concessions by U.S. Solicitor General Elizabeth Prelogar in response to questions by Justices Barrett, Thomas, and Alito. Prelogar’s central argument has been that Tennessee’s law regulating use of puberty blockers and cross-sex hormones to transition children discriminates based on sex because those drugs can be used for other purposes — e.g., to treat precocious puberty and endocrine disorders — in children who are not transitioning. So, she insists, the state lets a doctor prescribe estrogen to an adolescent female to treat an endocrine disorder but not to an adolescent male who seeks to undergo transition — and thus the statute facially discriminates.
But this facial discrimination argument fell apart in the face of questioning by Justices Barrett and Thomas. Justice Barrett posed a hypothetical of a new drug that is used only for gender-transition purposes and that the state prohibits for use by minors. (This hypothetical tracks a similar one in a brief I filed on behalf of Concerned Women for America and Samaritan’s Purse, excerpted below.) Perhaps surprisingly, Prelogar quickly conceded that this hypothetical law would not facially discriminate based on sex. Thus, Prelogar’s facial discrimination argument depends on the notion that transitioning interventions are the same as other medical treatments that happen to use the same underlying medications.
Yet in response to Justice Thomas, Prelogar conceded that males and females have physiological differences and that those differences mean that their bodies react differently to sex hormones (testosterone and estrogen). Males and females are thus not similarly situated when it comes to administration of these hormones — so giving adolescent girls estrogen for an endocrine disorder is not the same as letting male youths take estrogen as part of transition. And without differential treatment, there is no facial discrimination, and no heightened scrutiny.
Prelogar tried to pivot to findings by the district court about whether transitioning interventions have risks that are different from those of other treatments that use sex hormones, but that’s irrelevant — at a minimum, the purposes and effects would be different. And of course the risks are different, precisely because (as Prelogar conceded) males and females have different reactions to sex hormones. Estrogen as endocrine treatments won’t sterilize girls, but it will sterilize boys. Hence a recent concession by the United States’ own expert that an adolescent male who went from puberty blockers to estrogen would have a less than 50 percent chance of eventually developing fertility (pp. 153–54, along with 107–110, of this deposition).
As Justice Alito pointed out, the same logic applies even more easily to puberty blockers, given that the underlying drugs used for gender transitioning in males and females are the same — and thus identically subject to the state’s law. As ACLU lawyer Chase Strangio affirmatively argued, puberty blockers for transitioning are prescribed after onset of normal puberty — unlike puberty blockers used to treat precocious puberty. And Prelogar again conceded that a law prohibiting puberty blockers from being used during the time of normal puberty would not facially discriminate.
Tennessee’s law thus differentiates based on medical treatment (and age) — not sex. Heightened scrutiny does not apply.
An analogy may help expose the problem with the United States’ theory. Take a new drug that would change one’s skin pigmentation. That drug has no other use. If the government banned all use of that drug as dangerous — say, the FDA refused to approve it — would it have discriminated based on race? Surely not — no one, regardless of race, could access it.
Now change the hypothetical so that the drug has other (permissible) uses — say, at a low dose, it can treat migraines. If the government passed a law saying that the drug could not be used for the purpose of appearing as a different race, would it discriminate based on race and thus be subject to strict scrutiny? It’s hard to see how the result would change, simply because the drug could be used in other contexts — requiring the government to spell out the prohibited use. Again, as long as that use was prohibited across the board, there is no discrimination. The law would differentiate based on treatment — like Tennessee’s law.
The United States insists that the fact that the drugs here have other uses makes all the difference. According to the United States, this scenario is “fundamentally differ[ent]” because it involves “medical treatments that all individuals can receive, regardless of their sex.” Br. 26. But as the self-proclaimed “experts on gender-affirming care” helpfully set out, hormone interventions are fundamentally different when used to treat gender dysphoria as compared to other conditions. See Br. of Experts on Gender Affirming Care App. B. Other uses of the drugs involve different diagnoses, uses, purposes, risks, and effects. And again, because the relevant comparison is between treatments, the law is based on treatment — not sex.