In one of the most-anticipated decisions of its 2024-25 term, United States v. Skrmetti, the Supreme Court held that a Tennessee law prohibiting so-called “gender-affirming” medical interventions for minors does not violate the Fourteenth Amendment’s Equal Protection Clause. That was the only question before the Supreme Court, and it got the answer right.
Tennessee is among more than 20 states that prohibit such medical interventions for minors. Its law, called SB1, allows doctors to prescribe drugs such as puberty blockers and cross-sex hormones or to perform certain surgeries only to treat specific medical conditions. These include congenital defects, disease, or physical injury. It prohibits their use in cases of “gender dysphoria, gender identity disorder, [and] gender incongruence.”
Three minors who wanted to identify with the opposite sex and their parents challenged SB1, arguing that it violated the Fourteenth Amendment’s requirement that states provide the “equal protection of the laws.” They argued that SB1 was just like more familiar laws that discriminate based on sex, which the Supreme Court already held must meet a higher legal standard. The Biden administration also joined the case to oppose the Tennessee law.
The U.S. Court of Appeals for the Sixth Circuit, which includes Tennessee, didn’t buy it and neither did the Supreme Court. Chief Justice John Roberts wrote the 6-3 opinion, refusing to find a “sex-based classification” in a statute that, to state the obvious, does not classify based on sex. SB1 applies to all minors, regardless of sex. The only distinctions it makes are age (it applies to minors, not adults) and the medical use of the particular surgeries and drugs. Neither of these has anything to do with sex.
Every Supreme Court decision has two parts: the judgment, which is typically a yes/no answer to a specific legal question, and the opinion, which explains the reasons for the judgment. The judgment decides the case before the Court and the opinion can impact other cases. Here, Roberts’ opinion addressed some important issues that will no doubt be raised in other cases.
He emphasized, for example, that our understanding of gender is constantly changing and that the advisability and efficacy of medical interventions in cases of gender dysphoria or incongruence is being hotly debated. In fact, Roberts pointed out, several European countries that jumped on the “gender-affirming” care bandwagon have reversed course, “rais[ing] significant concerns regarding the potential harms associated with using puberty blockers and hormones to treat transgender minors.”
In addition, the Court refused to extend its controversial decision in Bostock v. Clayton County from the statutory to the constitutional context. In Bostock, the Supreme Court held that firing someone who is gay or “transgender” amounts to discrimination “because of” sex, violating Title VII of the 1964 Civil Rights Act. Liberal activists want the Supreme Court to reach the same conclusion with respect to the Equal Protection Clause. Roberts refused, explaining the important differences between SB1 and “the logic of Bostock.”
Unless a law discriminates on the basis of things such as race, religion, or sex, courts are not going to second-guess legislative judgments about policy issues. This decision means that gender-related laws like SB1 are in the broad category of matters, such as regulating the practice of medicine generally, that the people and their elected representatives must handle. SB1, Roberts wrote, “clearly meets this standard.”
Like European countries have concluded, the Tennessee legislature argued that any perceived discordance between sex and gender can be resolved by an approach far less invasive and permanent than surgery or drugs and will likely produce better outcomes.
Challenges to similar laws in other states raise the same Equal Protection Clause issue and whether parents have a right, under the Due Process Clause of the same Fourteenth Amendment, to obtain medical interventions for their minor children. This decision should settle the first issue, but the second will likely find its way to the Supreme Court as litigation elsewhere continues.
In recent polls, many Americans say that the Supreme Court decides cases based more on politics than law. The Court can fuel that perception when it makes up rights that are not in the Constitution’s text, or tries to reach a result that is politically, but not judicially, correct. This is not one of those cases. The Court applied basic Equal Protection Clause analysis and came to the obvious, and objectively correct, conclusion. As Roberts concluded, the Equal Protection Clause does not resolve “fierce scientific and policy debates” like those today that relate to gender. That’s our job as citizens.
