In an important ruling today in United States v. Skrmetti, the Supreme Court ruled by a vote of 6 to 3 that a Tennessee law that that bars health-care providers from administering certain medical procedures to children with gender dysphoria does not violate the Equal Protection Clause. Chief Justice Roberts wrote the majority opinion for five justices. Justice Alito concurred in part and concurred in the judgment. Justice Thomas wrote a concurring opinion, and he also joined a concurring opinion by Justice Barrett. The three liberal justices dissented.
I’ll start by exploring the difference between the Chief and Justice Alito.
The Chief concludes that the Tennessee law does not classify on the basis of transgender status and therefore does not reach the question whether classifications based on transgender status are subject to heightened scrutiny. Alito, by contrast, is “uneasy” with the conclusion that the law does not classify on the basis of transgender status. He would assume for the sake of argument that it does, and he would hold that classifications based on transgender status are not subject to heightened scrutiny. (Justice Barrett, joined by Justice Thomas, likewise concludes in her concurring opinion that classifications based on transgender status are not subject to heightened scrutiny.
The Chief also concludes that it is unnecessary to decide whether Bostock’s “but for” reasoning applies in the Equal Protection context. Alito would hold that Bostock‘s reasoning does not apply to Equal Protection claims. (Justice Thomas in his concurring opinion reaches the same conclusion.)
One big question is whether the Chief’s approach broadly forecloses claims that laws classify on the basis of transgender status. If so, the Court might never need to reach the question whether laws that in fact classify on the basis of transgender status are subject to heightened scrutiny.
In all of the transgender controversies, I can’t think of a single law that actually classifies on the basis of transgender status. The laws and policies on bathrooms, sports, prisons, etc., that transgender ideologues object to all classify on the basis of sex.
I’ll present the Chief’s opinion in my Part II post.