The Supreme Court heard oral arguments Wednesday in United States v. Skrmetti, arguably the most important transgender rights case the Court has ever heard. The case asks whether discrimination against transgender people can violate the Constitution — and it appears most of the justices feel it does not. The likely result is that the Court will allow states to ban health procedures that enable gender-affirming care, both for minors and, potentially, adults.
The argument went terribly for transgender Americans, as many of the justices suggested creating a carveout from the ordinary constitutional rule restricting sex-based discrimination of all kinds. Chief Justice John Roberts, for example, suggested giving the government broad authority to engage in such discrimination in the medical context — a ruling that could also have severe implications for women generally, including cisgender women.
As Justice Ketanji Brown Jackson said at one point in the argument, “I’m getting kind of nervous” that the Court is going to chip away at one of the “bedrock” principles in US anti-discrimination laws.
Skrmetti involves a 2023 Tennessee law that prohibits trans youth from receiving medical treatments, such as puberty blockers and hormone therapy, if those treatments are prescribed to help them transition. Notably, the law is quite explicit that its purpose is to “encourag[e] minors to appreciate their sex” and to prevent young people from becoming “disdainful of their sex.”
Although this particular law involves a ban on gender-affirming care for minors, Tennessee’s arguments in favor of the law could also permit the government to prohibit adults from receiving the same treatments.
At least four justices — Roberts and Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh — appeared all but certain to vote to uphold Tennessee’s law. Justice Amy Coney Barrett, meanwhile, was a bit less direct in her questioning, but she largely seemed sympathetic to Tennessee’s position. Most notably, Barrett signaled midway through the argument that she was open to Roberts’s call for a medical carveout from the Constitution’s restrictions on sex discrimination.
Justice Neil Gorsuch, a Republican who authored a landmark opinion protecting trans rights in 2020, was silent throughout the argument. That left only the Court’s three Democrats to defend the orthodox approach to laws that discriminate on the basis of sex, which casts a skeptical eye on any law that treats people differently because of their sex assigned at birth.
The biggest question in Skrmetti, in other words, is likely to be how the Court finds a way to uphold Tennessee’s law, rather than whether the Court does so. And it seems fairly likely that the Court’s opinion could fundamentally alter the rules governing sex discrimination by the government.
How the Court’s current precedents approach laws that draw lines based on sex
The most important thing to understand about Tennessee’s law is that it explicitly draws lines based on a patient’s sex assigned at birth. If a child who is assigned male at birth is prescribed testosterone by their doctor, Tennessee permits that child to receive that treatment. But a child who is assigned female at birth may not.
Indeed, while Matthew Rice, the Tennessee solicitor general defending his state’s law, tried many times to deny that this law classifies based on sex, he eventually admitted that it did after being pressed by Justices Sonia Sotomayor and Jackson.
Jackson, for example, asked Rice whether this law would permit a boy who seeks testosterone because he wants to deepen his voice and otherwise enhance his masculinity to receive that treatment, and Rice eventually conceded that, under the specific law at issue in this case, the boy could. Rice then eventually admitted that, if a girl sought the same treatment for the same purpose — to deepen her voice and to make her body appear more masculine — Tennessee’s law would prohibit her from receiving the treatment.
This matters because, in United States v. Virginia (1996), the Supreme Court held that “all gender-based classifications” are subject to “heightened scrutiny,” meaning that the law is treated as presumptively unconstitutional and the state has to prove that its law was not enacted for impermissibly sexist reasons. Some laws survive this heightened scrutiny, if those laws are grounded in real differences between the sexes and not in prejudice or stereotypes. But, under Virginia, any law that draws lines based on sex in any way whatsoever receives this higher level of review from the federal courts.
Significantly, neither the Biden administration, which argued against Tennessee’s law in the Supreme Court, nor the ACLU, which represents families that want their transgender children to have access to care, asked the Supreme Court to definitively strike down Tennessee’s law right now. Rather, the sole issue before the Court is whether to send the case back down to a federal appeals court that previously refused to apply the heightened scrutiny required by Virginia.
But many of the justices appeared determined not to apply Virginia to this case. Roberts, for example, warned that there are “medical nuances” in this case that weren’t present in Virginia or some of the Court’s other previous gender discrimination cases. And he suggested that the courts should take a more deferential approach to state lawmakers in cases involving medicine because judges are not good at making medical judgments.
Kavanaugh echoed Roberts’s thinking, suggesting at one point that the Constitution does not take sides on a “medical and policy debate.”
Barrett also appeared sympathetic to Roberts’s approach, asking Chase Strangio, the ACLU lawyer, whether the courts have ever applied heightened scrutiny in a case involving medical judgments.
Strangio had an excellent answer to this question: During the pandemic, several churches and other religious institutions claimed that they had a constitutional right to defy state rules prohibiting too many people from gathering in one place in order to prevent the spread of Covid. The Court eventually split 5-4 in these cases, with five of the Republican justices concluding that the right to freely practice religion overcomes a state’s medical determination that large public gatherings are too dangerous.
Barrett, however, did not appear persuaded, claiming that the Covid cases, in which she ruled with the majority, did not involve “diving deep into the medical evidence.” (Roberts dissented in the Covid cases, so his position in the Covid cases is consistent with the position he seemed to lay out in Skrmetti.)
Thomas and Alito’s questions, meanwhile, were consistently hostile to the two lawyers arguing in favor of trans rights. When you add their votes to Roberts, Kavanaugh, and Barrett, that’s a majority likely in favor of Tennessee’s law.
If the Court adopts Roberts’s approach, which seems likely, that’s not just a devastating blow to transgender youth and their families. It’s also a sea change in the Court’s approach to sex discrimination of all kinds. Again, Virginia held that “all” laws that draw lines based on sex must survive heightened scrutiny, even though some laws ultimately clear this hurdle. “All” means all. But now many of the justices seem eager to hold that only some laws that classify people based on sex are presumptively unconstitutional.
This case arrives at the Court at the worst possible moment
It’s hard to divorce this case from its political context. During his recently victorious presidential campaign, President-elect Donald Trump went all in on anti-trans rhetoric — spending literally hundreds of millions of dollars on ads that, in the Washington Post’s words, “paint trans people as a menace to society.” Republicans control six of the nine seats on the Supreme Court, so it’s not surprising that a majority of the Republican justices seemed to align with their party’s position on trans rights (the Court’s three Democrats, for that matter, also appear aligned with their own party).
But, in their apparent eagerness to uphold this Tennessee law, the Court’s Republican majority appears likely not just to strike a blow against trans rights. They also appear poised to do considerable damage to the legal standard governing sex discrimination generally. Perhaps Tennessee could, if this case were sent back down to the lower court, offer a justification for its law that survives heightened scrutiny. But most of the justices appear ready to overrule Virginia’s statement that all sex-based classifications must undergo such scrutiny.
This is why, near the end of Strangio’s time at the podium, Jackson said she is “suddenly quite worried” about the implications of the Court’s questions.
If the Court can create a medical carveout to the general rule that all sex discrimination is presumptively unconstitutional, what other carveouts might they create in the future? For that matter, will the Court also create similar carveouts for other forms of discrimination, such as race discrimination? Jackson even went so far as to compare Tennessee’s arguments to Virginia’s unsuccessful defense of its ban on interracial marriage in Loving v. Virginia (1967).
All of that said, the Court most likely will not hand down an opinion in Skrmetti until June 2025, when the Court normally decides the biggest cases of its term. There may be time for voices like Jackson’s to convince some of her colleagues to compromise. But based on Wednesday’s argument, Skrmetti appears likely to not just be a historic blow to transgender Americans, but potentially a similar blow against all people who might experience unconstitutional discrimination.
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