The Challenge to Tennessee’s Gender-Transition Law Is Another Baseless Attempt to Take a Policy Issue Away from the People

On December 4, the Supreme Court will hear oral argument in one of the most significant cases of this term, United States v. Skrmetti. The question before the Court is whether Tennessee Senate Bill 1 (SB1), which bars risky gender-transition interventions for minors, violates the Equal Protection Clause of the Fourteenth Amendment. Two years after Dobbs v. Jackson Women’s Health Organization, the Court is being asked to make up a constitutional rule to take another area of contentious policy away from the people and their elected representatives. The Court of the past sometimes could not resist taking that bait, but the current Court has a much better sense when it comes to legally baseless power grabs.

By its terms, SB1 prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Three minors, their parents, and a doctor challenged the law on substantive due process and equal protection theories. The district court held the law facially unconstitutional and preliminarily enjoined all but the surgical prohibition. A 2–1 panel of the Sixth Circuit reversed. In his panel opinion, Chief Judge Jeffrey Sutton rejected both the equal protection and substantive due process claims. He noted that SB1 was based not on sex, but “on presumptively valid age and medical conditions,” and it “treat[ed] similarly situated individuals evenhandedly.” Under those circumstances, the law did not trigger heightened scrutiny.

The Supreme Court will be considering only the equal protection issue. This is not a difficult question: Tennessee has not engaged in invidious discrimination—what we usually look for in modern equal protection cases. It has in fact followed the most immediate sense of equal protection gleaned from the Fourteenth Amendment’s Reconstruction-era framers: the duty to protect, and to do so equally. Christopher Green has fleshed out that history in detail, and he points out in an amicus brief in this case that protective legislation that is paternalistic is consistent with the Fourteenth Amendment’s conception of citizenship.

The legitimately protective nature of SB1 is underscored by the fact that “gender-affirming care” is an area in flux. As Attorney General Jonathan Skrmetti notes in his brief, there has recently been an unexplained doubling of the percentage of minors identifying as transgender (from 0.7% to 1.4%) while the percentage of transgender-identifying adults (0.5%) has remained constant. The patient population has also shifted from primarily young boys and adult men to adolescent girls.

Medical understanding of this phenomenon has been a work in progress. To address gender dysphoria in minors, doctors have used three options: “watchful waiting,” psychotherapy, and the “gender affirming” model. Tennessee’s law does not prohibit psychotherapy, which has long been used to treat minors, or watchful waiting—which succeeds with dysphoria going away 85% of the time. The challenged prohibitions apply to puberty-blocking drugs, cross-sex hormones, and surgery, and for good reason as they threaten numerous forms of potentially lasting harm. Even before getting to the dramatic step of surgery, as Endocrine Society guidelines admit, the effects of puberty blockers include diminished bone density, undeveloped sex organs, threats to brain maturation, and “compromised fertility if the person subsequently is treated with sex hormones.” Those hormones additionally increase risks of cerebrovascular disease and cancer. A number of gender-dysphoric minors are also fluid in their identified gender and eventually wish to detransition, but they are limited in their ability to reverse the effects of treatments they already received. There is mounting testimony of harm from detransitioners, which prompted European health authorities to tighten their restrictions, and nearly half the states in the U.S. have imposed restrictions similar to Tennessee’s to protect minors.

The Biden administration, which intervened to challenge SB1, claims that Tennessee rejected a “medical consensus” supporting gender-transition interventions “without engaging with the basis for that consensus.” Skrmetti’s brief illustrates effectively that this contention of apparent “consensus,” which disregards the findings of doctors in half the states and overseas, was embroidered in a process that was “prioritizing politics over science.”

The administration seeks heightened review of the Tennessee law under Bostock v. Clayton County (2020), the decision that redefined “sex” to include sexual orientation and gender identity. But Bostock’s reasoning was fundamentally about interpreting the “starkly broad” text of Title VII. The Equal Protection Clause’s text is entirely different from that of Title VII. And while Bostock employed a “but-for-sex” test in its statutory analysis, the Court would be unwise to elevate that test to a constitutional rule, which among other things would contradict the Court’s prior decisions in cases involving pregnancy and abortion. That test would be irrelevant in any event, because SB1’s distinctions are based not on sex, but on age and the use of pharmaceutical intervention.

To strike down the Tennessee law, the Court would have to lapse into the same judicial self-aggrandizement that defined the Roe v. Wade era, when it acted as an “ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States,” to quote Justice Byron White. That criticism was part of White’s partial dissent in Planned Parenthood v. Danforth (1976), but it was vindicated when the Court overruled Roe. Dobbs reaffirmed what has generally been true of health and welfare laws, that rational-basis review applies—a standard Tennessee easily satisfies. But even in heightened-review cases, the Supreme Court grants “state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty,” as it stated in Gonzales v. Carhart. There is no basis for attributing SB1 to animus against transgender-identifying people as it clearly sprang from a desire to (in the Skrmetti brief’s words) “protect minors from unproven procedures that can permanently alter their lives.”

The results of the election give the next Trump administration the opportunity to change the government’s position, which could raise questions of mootness in this case. Will that mean dismissal of this appeal? Ed Whelan gives more than one reason to expect that the case will proceed to decision even if the government corrects the Biden administration’s legally tenuous arguments. The Tennessee law is fundamentally about advancing the timeless medical imperative to do no harm. Having corrected a gross distortion of the Constitution two years ago, the justices of the Dobbs majority likely understand that they are being asked to create a constitutionally catastrophic new precedent. “Do no harm” is as valuable to the law as it is to medicine.