Last week, the Supreme Court heard oral arguments in US v Skrmetti. The case concerns the U.S. government’s challenge to Tennessee’s SB1, a state law that prohibits medical treatments that would 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.” The question in the case is whether this law banning health care for transgender youth violates the Equal Protection Clause of the Fourteenth Amendment.
Some are calling this the most important transgender rights case to ever come before the Supreme Court, but the implications are far broader than that. The Court’s decision in this case will also carry significant consequences for groups that experience unconstitutional discrimination. To echo Justice Kentanji Brown Jackson during oral arguments, there might be good reason to be “suddenly quite worried.”
What’s at issue in US v Skrmetti?
SB1, approved by the Tennessee state legislature in March 2023, prohibits trans youth from receiving life-saving health care. These treatments include puberty blockers that delay the onset of secondary sex characteristics so a child can have time to make decisions about gender-affirming care. It also bans the use of hormone therapy, even if prescribed by a doctor and the child’s parents approve of this treatment. Interestingly, the law creates carve outs for non-transgender youth requiring the same medical interventions. The law is very clear about the end goal, which is to “encourage minors to appreciate their sex” and prevent them from becoming “disdainful of their sex.” In other words, lawmakers are hoping to enshrine binary and immutable understandings of sex into law.
In a U.S. Department of Justice complaint filed shortly after the law’s passage, U.S. Attorney Henry Leventis for the Middle District of Tennessee made the stakes of the law clear:
Left unchallenged, it would prohibit transgender children from receiving health care that their medical providers and their parents have determined to be medically necessary. In doing so, the law seeks to substitute the judgment of trained medical professionals and parents with that of elected officials and codifies discrimination against children who already face far too many obstacles.
SB1 is not alone in banning health care prescribed by doctors and approved by parents. As of August 2024, 26 states ban gender-affirming care for people under 18.
What happened at the Supreme Court hearing?
District courts in Alabama, Arkansas, Florida, Georgia, Indiana, Kentucky, and Tennessee have found that these bans on health care for transgender youth are likely unconstitutional. Both U.S. Solicitor General Elizabeth Prelogar and Chase Strangio, the ACLU lawyer arguing on behalf of the families of trans children in Tennessee, made it clear that their hope was for the Court to remand the case to the 6th Circuit, which had reversed the lower court’s move to ban this legislation from going into effect, and recommend the application of heightened scrutiny, as prescribed in US v Virginia. In that 1996 case, the Supreme Court held that sex discrimination cases are subject to heightened scrutiny, which places the burden on states to demonstrate that the law in question was not enacted for sexist reasons.
Prelogar and Strangio supported their position by arguing that sex discrimination is evident in the Tennessee ban because it creates specific exceptions for non-trans youth to receive puberty blockers and hormone treatments to affirm their sex assigned at birth – while banning these same treatment options for trans youth who do not identify with their sex designation. This position follows Justice Neil Gorsuch’s opinion in Bostock v Clayton County, in which he reasoned that discrimination on the basis of sexual orientation or gender identity is tantamount to sex discrimination.
Tennessee Solicitor General Matthew Rice challenged this interpretation by maintaining that what is at issue is the medical use of the same drug for different purposes. He repeatedly made reference to the use of morphine to alleviate pain (legal) or end a life (illegal) to support this example.
The Tennessee law as currently written and defended by Rice leaves open the possibility that Tennessee could restrict health care for transgender adults in the future. Florida, for example, passed a similar law, banning transgender care for minors, as well as making access to care more difficult for adults by limiting who can administer hormone treatments.
How the justices responded
Many of the judges seemed hesitant to apply Virginia to the current Tennessee case. Chief Justice John Roberts, for example, asked questions that suggested he might be interested in creating exceptions to the precedent due to what he referred to as “medical nuances.” Justice Samuel Alito echoed these concerns, citing the now-debunked Cass Review in the United Kingdom, which he interpreted as asserting that gender-affirming care for youth is harmful and ought to be banned.
Although the Court has historically insulated itself from the influence of international law and global political developments, Alito repeatedly cited the Cass Review and findings from a similar report in Sweden that call gender-affirming care into question. He failed to mention French guidelines that argue for the importance of early interventions as well as statements from the American Medical Association that advise against legislating health care for children.
The Court’s liberal justices pressed the heightened scrutiny position to push back against the possibility of creating medical exceptions to authorize discrimination. Justices Jackson and Sonia Sotomayor, for example, asked Rice to explain the difference between using testosterone for a boy to deepen his voice – a cosmetic effect of hormones – and a girl using it for similar purposes, which is one reason why a transgender boy might be prescribed testosterone. Rice conceded that these were the same purpose, confirming that the law purposely targets young people on the basis of sex under its definition in Bostock.
In another telling line of questioning, Justice Amy Coney Barrett expressed surprise that transgender people experience de jure discrimination – where government laws, not societal views, enforce unequal treatment. Strangio responded by citing historic bans on transgender people serving in the U.S. military as an example, as well as the long history of criminal prohibitions for cross-dressing.
What happens next?
Although the Court will not release a decision in the case until June 2025, president-elect Donald Trump has promised that he will use his first day in office to ban health care for transgender youth and issue an executive order declaring that there are only two sexes that are assigned at birth.
These developments at the federal level will present significant challenges for transgender people. Trans adults who have updated their state documentation to match their gender presentation, for example, might renew their passports and discover that the sex assigned at birth has replaced the sex marked on their identification. Others living in states sympathetic to Trump’s position will find it impossible to update their identification, effectively foreclosing them from daily activities that range from applying for jobs and housing to simply getting a drink at a bar. With respect to trans youth, public health officials have declared a public health emergency, citing anti-trans rhetoric as the source of an uptick in suicidal ideation and completion by transgender youth.
The Court’s decision in this case could also have broader implications for how the U.S. legal system handles future discrimination cases. Upholding Tennessee’s law or creating a medical exception will likely entail overruling Virginia’s stipulation that all sex-based classifications must undergo heightened scrutiny.
An added concern is that overruling Virginia might create opportunities to revisit the ways the Court understands other forms of discrimination, specifically racial discrimination. Justice Jackson repeatedly asked lawyers on both sides to compare Tennessee’s defense to Virginia’s unsuccessful support of bans on interracial marriage in Loving v Virginia, a landmark case from 1967. Jackson articulated her concerns over the line of questioning from Roberts, Alito, and Kavanaugh on the conditions when equal protection is applied. “I’m getting kind of nervous,” Jackson said at one point. “I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases.”
