Yesterday marked a huge win for the Constitution in United States v. Skrmetti. In a 6–3 decision, the Supreme Court held that Tennessee’s statute barring risky gender-transition interventions for minors does not run afoul of the Equal Protection Clause. The Court blocked an attempt to shoehorn current scientific and policy debates into the Constitution’s Equal Protection Clause. As I discussed previously, the end of the Court’s misguided foray into abortion policymaking in Dobbs v. Jackson Women’s Health Organization (2022) did not prevent litigants from asking the justices to make up additional constitutional rules to take contentious policy questions away from the people and their elected representatives.
The challenged Tennessee statute, SB1, prohibits medical procedures for the purpose of “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” That did not subject the statute to heightened scrutiny under the Equal Protection Clause, the Court held in an opinion by Chief Justice John Roberts; on its face, the law made distinctions based on age and on medical use and was subject, like most legislative classifications, to rational-basis review. “SB1 prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor’s sex.”
The primary argument by the three liberals in a dissent written by Justice Sonia Sotomayor, besides taking issue with what they saw as classification based on transgender status, is that the law “classifies on the basis of sex” and therefore is subject to intermediate scrutiny under the Court’s precedents. “Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl,” the dissenters’ reasoning goes. (Two of the dissenters further concluded that SB1 must be struck down under intermediate scrutiny, but Justice Elena Kagan declined to opine on that point, joining her colleagues on the question of which level of scrutiny applies.)
Roberts’ majority opinion takes the dissenters to task for “contort[ing] the meaning of the term ‘medical treatment.’ Notably absent from their framing is a key aspect of any medical treatment: the underlying medical concern the treatment is intended to address.” After all, “[u]nder SB1, no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence; minors of any sex may be administered puberty blockers or hormones for other purposes.” Similarly, Roberts rejects the argument that the law discriminates on the basis of transgender status when it in fact “removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions.”
The dissenters also differ with the majority on the applicability of Bostock v. Clayton County (2020), which considered “sex” to include sexual orientation and gender identity under Title VII of the Civil Rights Act of 1964. Roberts’ majority opinion distinguishes Bostock while tiptoeing around its analytical errors. A concurring opinion by Justice Clarence Thomas brings home more explicitly why Bostock’s reasoning does not apply. Justice Sotomayor’s dissent tries to analogize the completely different language in the Equal Protection Clause to the language of Title VII, but Thomas would have none of that: “An abstract similarity between the purposes of the Constitution and a statute is not a license to import the statute’s interpretation into the Constitution, much less to ignore the Constitution’s text.” The justice calls attention to a sweeping array of equal protection precedents that would be upended if Bostock were extended to them (an indirect reminder of what a shoddy decision that was): Sexual orientation and pregnancy-related regulations have not been deemed sex discrimination requiring heightened scrutiny in the constitutional context. Even a university that wants to credit “an applicant’s discussion of how race affected his or her life,” permissible under Students for Fair Admissions v. President and Fellows of Harvard College (2023), would face the “daunting” strict-scrutiny standard under Bostock’s reasoning.
Thomas also takes on the politicized and unreliable assertions of “self-proclaimed experts” on the other side that there was an “overwhelming consensus of the medical community” supporting their argument. I wrote about this previously after Alabama Attorney General Steve Marshall submitted an amicus brief illustrating how opponents at the World Professional Association for Transgender Health (WPATH) effectively buried evidence about the risks posed by sterilizing chemical treatments and surgeries and the propriety of age restrictions. Justice Thomas’ opinion recounts the mounting evidence of risk posed by such treatments and “WPATH’s apparent willingness to let political interests influence its medical conclusions.” And as articulated in the Court’s assisted suicide decision in Washington v. Glucksberg (1997), states have an interest “in protecting the integrity and ethics of the medical profession.” In short, Thomas asserts, “States are never required to substitute expert opinion for their legislative judgment, and, when the experts appear to have compromised their credibility, it makes good sense to chart a different course.”
The only justice in the majority who did not join the chief justice’s opinion in its entirety is Samuel Alito. In a separate opinion concurring in part and concurring in the judgment, he voices his hesitation to agree with the analytical point that the law does not classify based on transgender status. But he adds that that point does not change the outcome since that status does not merit treatment “as a suspect or ‘quasi-suspect’ class,” a designation that “has been exceedingly rare” and not accorded to “groups, like persons with disabilities and the aged, who were found by Congress to need special legislation to protect them from widespread discrimination.” So there is no need to debate that question. By contrast with the classifications involved in this case, racial and sex discrimination have received heightened scrutiny because they share in common being “historically entrenched and pervasive; . . . based on identifiable and immutable characteristics; and” they “included barriers to full participation in the political process.” National origin and ancestry similarly received treatment as suspect classes by the Court.
Justice Amy Coney Barrett, joined by Justice Thomas, issued a concurring opinion that also explains why transgender status does not constitute a suspect class. She cites the same factors as Alito (immutable or distinguishing factors defining them as a discrete group, historical discrimination, political powerlessness). Barrett further explains that “the relevant question” in assessing discrimination against a group under the Fourteenth Amendment is not a history of private discrimination, but “whether the group has been subject to a longstanding pattern of discrimination in the law. In other words, we ask whether the group has suffered a history of de jure discrimination.”
The Court has spoken, and now other voices may continue to decide the underlying debate. The voters of Tennessee—and those of many other concerned states—may choose to protect minors from life-altering gender-transition treatments. The constitutional checks and balances worked in this case as Tennessee defended its rights over federal power grabs and the Court refused to engage in judicial second-guessing of democratic decision making.
Thank goodness the old days of judicial self-aggrandizement that defined the Roe v. Wade era are behind us. A big congratulations to Attorney General Jonathan Skrmetti and his office on their win.