The long-awaited Supreme Court decision in the Skrmetti case came out Wednesday, and it’s the right call and establishes an extremely important precedent.
The case was originally “L.W. v. Skrmetti, Attorney General of Tennessee” but when the Biden administration became involved, it became known as United States v. Skrmetti. The case originated when Tennessee passed a law in 2023 that banned puberty blockers, cross-sex hormones and sex-reassignment surgery for minors. The law was challenged in federal district court, and subsequently the 6th Circuit court by several transgender minors, their parents and a doctor. The case finally wound its way to the Supreme Court.
It’s important to understand that the case revolved around the equal protection clause of the 14th Amendment. More specifically, if a non-transgender minor could receive puberty blockers or own-sex hormones as a treatment for specific disease pathologies, did it violate the equal protection clause if a transgender minor was banned by state law from receiving puberty blockers and cross-sex hormones to treat gender dysphoria, which is a recognized psychiatric pathology?
To understand what issue the Supreme Court enjoined, one must understand that the court distinguishes specific classes of differences to which the court has stated that equal protection must be guaranteed. These cases deserve what is called “heightened scrutiny,” wherein state governments would be on very shaky constitutional ground if they attempted to legislate differential treatment. The four established “heightened scrutiny” classes are race, sex, national origin and alienage (that is, whether or not one is an alien under U.S. law).
In its 6-3 decision, well worth reading, the court ruled that the denial of puberty blockers, cross-sex hormones and sex reassignment surgery for transgender minors did not merit heightened scrutiny, and therefore Tennessee’s SB1 was not unconstitutional and could stand as state law. Note that this decision does not at all ban such treatment nationwide; it merely says that states can ban these treatments without running afoul of the 14th Amendment as long as the law is rationally related to a legitimate aim (in this case, limitation of possible harm to minors).
This is a crucial step in cleaning up the mess that SCOTUS created in its Bostock decision, where it appeared, at least on cursory reading, that the court ruled that the word “sex” included not only physiological sex, but also “sexual orientation and gender identity.” A more in-depth reading shows that this interpretation was not necessarily justified, and Skrmetti makes the point plain. According to the court in the Skrmetti decision, the word “sex,” which would have triggered heightened scrutiny, does not automatically include “sexual orientation and gender identity” (SOGI).
Skrmetti will certainly be used to establish that other types of bans related to transgender identity — such as, for example, bans on biological males participating in female school athletic competitions — similarly do not trigger heightened scrutiny and can be decided as states see fit. We will no doubt see the development of the same type of patchwork of state laws as was produced when abortion law was returned to the states under the Dobbs decision. This is in keeping with the current court’s emphasis on greater respect by the federal government for more local (i.e., state) democratic processes.
Interestingly, the six justices voting in favor of allowing SB1 to stand did so on two different bases. Chief Justice John Roberts, writing for one group, asserted that SB1 was not unconstitutional because the ban is age-related — age is not a heightened scrutiny class — and because the ban involved treatments that have been repudiated by some American medical professional bodies (not to mention other nations) for being experimental and possibly harmful. In a sense, then, Roberts tried to sidestep the issue of whether sex includes SOGI, or whether SOGI could ever become a protected class under the 14th Amendment.
However, Justice Amy Coney Barrett, writing for a second group, asserted that SOGI could never become a protected class under the 14th Amendment, thus indirectly arguing that “sex” and “SOGI” could never be conflated in U.S. law. Her argument outlined the characteristics that would constitute a test of whether the equal protection clause was applicable to a purported class: Members of the group in question would need to “exhibit obvious, immutable or distinguishing characteristics that define them as a discrete group,” the group would have to have “(a)s a historical matter, ... been ... subjected to discrimination,” and the group would need to be “politically powerless.”
Barrett concludes that the proposition that transgender individuals form such a class fails this strict test. First, given that there are documented detransitioners, transgender identity cannot be said to be immutable. Second, there is no obvious distinguishing characteristic which serves to assign an individual to the class, and thus no possible discrete group against which discrimination could occur. Third, there has historically been no de jure discrimination by the state against transgender individuals. Fourth, it is very difficult to prove that transgender individuals are politically powerless, given indicators such as generous funding of transgender non-governmental organizations, the high profile of advocacy for trans-related causes, and demonstrated electoral success of transgender individuals.
There was pushback to the SCOTUS decision, of course, and it is notable that the three justices who dissented were all female: Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. In her dissent, Sotomayor asserted that Tennessee’s ban only applied if one was of a particular sex (that is, girls could not receive male hormones, and boys could not receive female hormones), and therefore in her opinion, sex was certainly involved in the case and the matter thus deserved heightened scrutiny. But, to Roberts, this is but an issue of locution, since regardless of sex, minors could not receive cross-sex hormones under Tennessee’s SB1.
Also very upset were certain professional medical associations, most notably the American Academy of Pediatrics (AAP), which does not see gender-affirming medical treatment as experimental, but rather a matter of settled science. The judgment of SCOTUS that the state of Tennessee was rational and therefore justified in viewing such treatment as experimental and possibly harmful, does serve to undercut the professional authority of the AAP. However, this is a self-inflicted wound on the part of the AAP, which has stubbornly and unreasonably refused to revisit its position despite new and growing empirical evidence showing far less benefit and far greater risk of harm to minors than was known when it originally penned its medical guidelines. Indeed, many European countries now have bans similar to Tennessee’s.
This is a moment of rectification, sanity and clarity in U.S. law. With the Skrmetti precedent, states can act to safeguard the health of minors without fear that their actions might be deemed unconstitutional. Over half of U.S. states ban gender-affirming medical treatment for minors, and more will no doubt join that club out of prudence and concern. This is a good decision, and the Supreme Court is to be praised — finally — for the wisdom it has shown in making it.