The Constitution Protects Transgender People. The Supreme Court May Have Other Ideas

If the Supreme Court of the United States were a normal court applying long-established principles and precedents to the issues of the day, United States v. Skrmetti, which asks the justices to decide whether Tennessee’s wholesale ban on gender-affirming health care for youth is unconstitutional, would be an easy case. No, the controversy doesn’t require them to weigh in on whether this care is good or bad policy, to address the science behind it, or even to take sides on a political, social, and medical debate that has roiled Washington, our national politics, and a Democratic Party still at sea on how to meet the moment. The dispute doesn’t even call on them to strike down the ban.

At its most basic, this case simply calls on the Supreme Court—to borrow from Justice Elena Kagan—to act like a court. And here, the court only has one issue before it: to decide whether a law that prohibits parents, in consultation with their doctors, from seeking out puberty blockers, hormone therapy, and other treatments for their children’s gender dysphoria amounts to sex discrimination prohibited by the Constitution’s guarantee of equality under the law.

If it does, then that’s all that needs to be decided. “We think the Court here just needs to recognize the sex-based classification in this statute and send the case back,” Elizabeth Prelogar, the Justice Department’s outgoing solicitor general, told the justices on Wednesday. She has been on the job long enough to know you cannot ask too much of this court. And so she threaded a careful needle—patiently addressing questions from Justice Samuel Alito about how European nations have dealt with transgender care for minors; from Chief Justice John Roberts about “evolving standards” in treatment in this area; and from Justice Brett Kavanaugh about any potential impact on girls’ sports, as well as the supposed neutrality of the Constitution on an issue that should be left to the democratic process.

“The Constitution doesn’t take sides on how to resolve that medical and policy debate,” Kavanaugh insisted, echoing his own musings when he voted to overrule Roe v. Wade. “The Constitution’s neutral on the question.” Prelogar was ready for that: “Well, I do think that the Constitution takes a position that individuals are entitled to equal protection of the law.”

Indeed, the reason we have a 14th Amendment in the first place is to put a check on the democratic process itself—to prevent democratically elected governments from singling out their own citizens because of their race, their gender, or some other so-called immutable characteristic. When a federal appeals court blessed Tennessee’s experiment against transgender youth last year, the dissenting judge, Helene White—an appointee of George W. Bush—explained in crystal clear terms how her colleagues lost their way on this point. “In the normal course, the Constitution contemplates the states acting as laboratories of democracies to resolve the controversies of the day differently,” White wrote. “But when a fundamental right or freedom from discrimination is involved, experimentation has no place.” In other words, just because you just won a majority in a free and fair election doesn’t mean you can just target certain people or groups for sport. Does that ring a bell?

For many decades, beginning in the 1970s, it has been black-letter law that policies that treat men or women differently are subject to heightened scrutiny—an analysis that requires judges to take a hard look at laws that single out a person’s sex for disparate treatment. Before becoming a judge, Ruth Bader Ginsburg was a key legal architect behind this line of cases—culminating in a 1996 landmark, authored by Ginsburg herself, that affirmed once and for all that “generalizations” and “stereotypes” about the proper place of women in society no longer could justify policies that left them worse off.

In this respect, the Tennessee law is not subtle in that legislators specifically crafted it so that minors would “appreciate their sex” and not be “disdainful of their sex.” Boys will be boys and girls will be girls. The American Civil Liberties Union’s Chase Strangio, who made history this week as the first transgender lawyer to ever present an argument at the Supreme Court, hammered this point hard. “On its face, SB1 bans medical care only when it is inconsistent with a person’s birth sex,” he said. “An adolescent can receive medical treatment to live and identify as a boy if his birth sex is male but not female. And an adolescent can receive medical treatment to live and identify as a girl if her birth sex is female but not male.”

Or as Justice Ketanji Brown Jackson suggested during an extended exchange with the lawyer for Tennessee, the law discriminates on the basis of sex because it would prevent a child who doesn’t want to grow breasts or develop a deeper voice from receiving that treatment only if they’re transgender—but it wouldn’t prevent a child from receiving the same treatment if it reaffirms their birth sex. “The whole thing is imbued with sex,” Kagan added about the statute.

If Strangio’s argument sounds familiar, it’s because the Supreme Court, in an opinion by Justice Neil Gorsuch, already endorsed it in 2020, when he and five other justices—including Roberts—ruled that gay and transgender workers are protected under federal law from workplace discrimination on account of their sex. Unsurprisingly, Gorsuch didn’t open his mouth at all during the argument in Skrmetti—a tactic he has employed in the past when he wants to keep journalists and the public guessing about how he’ll vote.

Yet maybe there’s not much room for guessing here. Since their earthshaking decision in Dobbs v. Jackson Women’s Health, which took from women a fundamental health care right they held for nearly half a century, the justices have made clear where they stand on the 14th Amendment and the role of sex and health in American life. Alito more or less signaled on Wednesday that Dobbs now rules the day whenever a person’s sex and a medical condition intersect.

And in other areas of the law, as whenever they’ve invoked it in recent years, the 14th Amendment will mean whatever Republicans want it to mean at that moment in time. From the decision to turbocharge the right to bear arms in public to the end of affirmative action in higher education to this year’s ruling declining to hold Donald Trump accountable under Section 3 of the amendment, the court’s conservative supermajority has interpreted the amendment to yield the result Republicans favor. Here, that could well mean that trans youth and adults, who are also at the mercy of state policies that harm them, won’t be able to find refuge in a cornerstone of our Constitution.

Independent of how the justices rule in Skrmetti, transgender people will continue to exist. The Supreme Court may well decide that the Constitution’s guarantee of equal protection doesn’t apply to them—or else that laws that specifically target them or their existence don’t represent odious sex- or status-based classifications that treat them as less than members of our polity. For what’s already a small minority with limited political power, that world will be bleak. Yet there will still be people who believe in them and their right to be—as in that not-so-distant past when majorities flexed their numbers to trample on the least among us, there will be loving parents, teachers, advocates, and others ready to take steps to protect them and keep fighting. In that world, a politics of solidarity will be essential; the law will be secondary.

After the hearing on Wednesday, just outside the Supreme Court, one close observer of the institution who is a parent to a trans child told me how “surreal” it was to be in the courtroom as the justices and the lawyers debated a reality that’s inescapable for many families. “It’s the first time that they’ve been talking about my child and my family, so to speak, so you feel there’s a disconnect.”