The Supreme Court announced on Monday that it will decide whether states have the constitutional authority to prohibit gender-affirming care for minors. Its decision, expected next term, will determine the fate of laws in more than two dozen states that severely restrict or even criminalize transgender minors’ access to health care. More broadly, the ruling will establish whether laws targeting the rights of transgender children and adults are constitutionally suspect.
There is, as always, a chance that the Supreme Court could issue a surprise decision that mandates equality for trans Americans and their families. But it appears more likely that the court will greenlight bans on gender-affirming care for minors. In the process, the conservative justices could devastate rights for all transgender people in the process, stripping away constitutional protections throughout the country. It is fitting that the court took up this case on the second anniversary of Dobbs. The next civil rights showdown, with existential stakes for equal citizenship regardless of sex or gender identity, has begun.
U.S. v. Skrmetti, the case that SCOTUS granted on Monday, is a challenge to a Tennessee law that bars health care professionals from providing certain kinds of medicines to minors. The statute forbids puberty-suppressing drugs known as “puberty blockers” as well as cross-sex hormone therapy, explicitly on the basis of sex. These treatments are the standard of care for children experiencing gender dysphoria endorsed by leading medical associations. Tennessee’s ban was part of a spate of legislation promoted by Republicans to mandate its narrow definition of gender by, in part, erasing transgender people’s existence. It was accompanied by legislation banning many drag performances, which were deemed to be “child abuse” by the bill’s sponsor; and it was followed up by a novel measure penalizing adults who assist or “recruit” Tennessee minors who travel out of state for gender-affirming care. Red states around the country are racing to enact similarly draconian laws.
Last year, a group of transgender minors and their parents sued to block Tennessee’s health care ban, arguing that it violates their rights under the 14th Amendment. The plaintiffs raised two theories: First, the parents argued that the state ban infringed on their right, secured under the due process clause, to make medical decisions for their children; and second, the minors argued that the ban discriminated against them on the basis of sex in violation of the equal protection clause. A three-judge panel on the U.S. Court of Appeals for the 6th Circuit shot down their claims by a 2–1 vote, finding no violation of the 14th Amendment. The 6th Circuit held that the due process clause does not protect the parents because there is no “deeply rooted” right to secure gender-affirming care for one’s offspring, and that the equal protection clause is not offended because the law at issue does not actually constitute sex discrimination.
Both the U.S. Department of Justice and the ACLU litigated this case in the 6th Circuit, and both asked SCOTUS to review the lower court’s decision. Yet, oddly, the Supreme Court granted only the Department of Justice’s petition on Monday. That choice is important, because the DOJ made only one of the plaintiffs’ two arguments: the equal protection claim that Tennessee’s ban discriminates on the basis of sex. That course of action seems to have flowed from a quirk in the statute that permits the Justice Department’s intervention exclusively with regard to equal protection, not due process.
The Supreme Court, though, may well have wanted to tee up Skrmetti as an equal protection case, excising the question about parents’ liberty interests under the due process clause. That’s because the big question that has divided the lower courts is whether anti-trans discrimination constitutes a form of sex discrimination. The Supreme Court has long held that, under the 14th Amendment, laws that discriminate on the basis of sex receive heightened scrutiny and must be supported by an “exceedingly persuasive justification.” So Skrmetti asks: When states target trans people for disfavored treatment, do they engage in sex-based discrimination? If the answer is yes—as the 4th, 7th, and 9th U.S. Circuit Courts of Appeals have found—then courts must stringently assess anti-trans legislation for an “exceedingly persuasive justification.” If the answer is no—as the 6th and 11th U.S. Circuit Court of Appeals have found—then courts can pretty much rubber-stamp overt discrimination against transgender people. (Some liberal courts have also held that transgender people constitute their own “suspect class” that triggers heightened scrutiny, though the odds of SCOTUS embracing this position are vanishingly small.)
In other words, there’s even more at stake in Skrmetti than the future of bans on gender-affirming care for minors (and adults, who now face similar restrictions in many jurisdictions). Every day, red states innovate new ways to trammel the liberties of transgender adults and children, passing laws or filing lawsuits that limit their ability to play sports, use public bathrooms, live in safe homes, avoid discrimination in school and the workplace, perform onstage, hold public office, and even vote. The list goes on and on. If there is a broad decision from the Supreme Court in Skrmetti holding that anti-trans laws trigger heightened scrutiny under the equal protection clause, then all these measures are constitutionally suspect. A broad decision the other way will require lower courts to uphold most if not all of these laws, effectively abolishing most constitutional protections for transgender people.
There is cause for some very cautious optimism. In 2020’s Bostock v. Clayton County, the Supreme Court ruled that “it is impossible to discriminate against a person” for being transgender “without discriminating against that individual based on sex.” Notably, though, the court was interpreting a statute, Title VII of the Civil Rights Act, rather than a constitutional provision. Justice Neil Gorsuch authored Bostock, and Chief Justice John Roberts joined him along with the court’s liberals. Roberts and Gorsuch, of course, remain on the court, and there are still three liberal justices. So it is conceivable that a five-justice majority could apply Bostock’s reasoning to the equal protection context.
Indeed, on a more balanced court, it would seem to be a no-brainer that the logic of Bostock extends to the 14th Amendment. Anti-trans legislation punishes an individual for failing to adhere to the sex they were assigned at birth and curtails their rights accordingly. When states single out transgender people because they are trans, they are necessarily classifying them on the basis of sex. Tennessee’s health care ban illustrates this fact: Doctors may prescribe testosterone to a cisgender boy, but not a transgender boy who was assigned female at birth—their sex at birth determines whether they may obtain the medication. The same is true of restrictions on adult health care: West Virginia’s Medicaid program, for example, covers breast-reduction surgery for cisgender men (who have excess tissue), but not transgender men assigned female at birth (who have gender dysphoria). As the 4th Circuit held, this distinction creates an unconstitutional regime based on sex.
Yet other courts have reached the opposite conclusion, often fueled by the Supreme Court’s reversal of Roe v. Wade in 2022’s Dobbs decision. In Dobbs, the court warned against the acknowledgment of any constitutional right that is not “deeply rooted” in the nation’s “history and tradition.” It also arguably cut back the equal protection clause’s protections against sex discrimination, narrowing the definition of gender-based discrimination. Conservative judges have seized upon these passages to Dobbs-ify the law of equality, refusing to protect transgender rights because they did not exist in the 18th and 19th centuries. And this Supreme Court is disinclined toward respecting, let alone expanding, LGBTQ+ rights. Moreover, Justices Brett Kavanaugh and Amy Coney Barrett have already signaled their skepticism that health care bans for trans minors are unconstitutional.
Both the Department of Justice and the ACLU urged the Supreme Court to take up Skrmetti because they had no other choice: The proliferation of these stringent laws leaves SCOTUS as the last, best hope of relief. These lawyers made the tough call knowing the risks of an adverse decision, which would wipe out pro-trans precedents in the 4th, 7th, and 9th Circuits that cover deep-red states like South Carolina, Indiana, and Idaho. It is possible, though, to make the case that five justices may see the unconstitutional foundations of Tennessee’s law for what it is: discrimination against transgender people that is inherently rooted in sex-based bias. But as ever, it is a safer bet that this extraordinarily conservative court will not stick its neck out to vindicate the rights of the vulnerable.