Skrmetti Ruling—Part 2

Here’s my summary of the Chief’s opinion in United States v. Skrmetti. (I quote extensively from the opinion but have not undertaken to include all of the quotations marks.)

1. The Tennessee law does not classify on any bases that warrant heightened review under the Equal Protection Clause. It classifies on two bases. First, age. Second, medical use: “Healthcare 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.”

a. Neither classification turns on sex. The law prohibits healthcare providers from administering pu­berty blockers and hormones to minors for certain medical uses, regardless of a minor’s sex. The plaintiffs and the dissent contend that an adolescent whose biological sex is female cannot receive puberty blockers or testosterone to live and present as a male, but an adolescent whose biological sex is male can. But when properly understood from the perspective of the in­dications that puberty blockers and hormones treat, the law clearly does not classify on the basis of sex. A healthcare provider may not admin­ister puberty blockers or hormones to any minor to treat gender dysphoria, gender identity disorder, or gender in­congruence.

We reject the argument that the law enforces a government preference that people conform to expectations about their sex. The statutory findings that plaintiffs object to do not evince sex-based stereotyping. Tennessee’s stated interests in “encouraging minors to appreciate their sex” and in prohibiting medical care “that might encourage minors to become disdainful of their sex” simply reflect the State’s concerns regarding the use of pu­berty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence. (Chief quotes with approval Tennessee’s brief stating that minors who be­come disdainful of their sex are “at risk for serious psychiatric conditions.”)

b. The law does not classify on the basis of transgender status. We have explained that a State does not trigger height­ened constitutional scrutiny by regulating a medical proce­dure that only one sex can undergo unless the regulation is a mere pretext for invidious sex discrimination. Geduldig v. Aiello (1974). The law does not exclude any individual from medical treatments on the basis of transgender status but rather removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions.

The law “divides minors into two groups: those who might seek puberty blockers or hor­mones to treat the excluded diagnoses, and those who might seek puberty blockers or hormones to treat other conditions. Because only transgender individuals seek puberty blockers and hor­mones for the excluded diagnoses, the first group includes only transgender individuals; the second group, in contrast, encompasses both transgender and nontransgender indi­viduals. Thus, although only transgender individuals seek treatment for gender dysphoria, gender identity disorder, and gender incongruence—just as only biological women can become pregnant—there is a lack of identity between transgender status and the excluded medical diagnoses.” [In other words, as I understand it, because individuals who identify as transgender can receive puberty blockers or hormones to treat conditions other than gender dysphoria and the like, the law does not draw a line based on transgender status.]

We do not need to decide whether Bostock’s “but for” reasoning applies in the Equal Protection context, as changing a minor’s sex or transgender status does not alter the appli­cation of the law.

2. The law clearly satisfies rational-basis review. Tennessee concluded 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. Its ban on such treatments responds directly to that un­certainty. We afford States wide discretion to pass legislation in areas where there is medi­cal and scientific uncertainty. Recent developments that call into question the medical case for puberty blockers and hormones only underscore the need for legis­lative flexibility in this area.