After Supreme Court oral arguments last December, it was clear conservative justices had the votes to uphold state bans on gender care for trans youths under age 18. The question was how far the decision would sweep to affect trans individuals in other situations.
In the end, Chief Justice John Roberts used the power of his office to keep the opinion for himself. He penned a decision that affirmed state restrictions on puberty blockers and hormone therapy, but he declined to adopt the reasoning of some conservatives that could have made transgender people even more vulnerable to discrimination.
Roberts, by virtue of his position as chief, assigns opinions when he is in the majority. He regularly keeps the most significant cases for himself, as he did in the controversy over President Donald Trump’s assertion of immunity from prosecution last year. Yet Roberts, now in his 20th year in the center chair, also strategically assigns cases to restrain or otherwise influence the court’s holding.
On Wednesday, he fended off the more aggressive right-wing sentiment. In his seven-minute statement from the mahogany bench and in his written opinion, Roberts adopted a cut-and-dried tone. He eschewed the heat of the three liberal dissenters, as well as the conservatives who broke off to write their own statements. Justice Clarence Thomas, for example, insisted medical experts “have surreptitiously compromised their medical recommendations to achieve political ends,” and Justice Amy Coney Barrett raised concerns about boys’ and girls’ sports teams.
All told, Roberts appeared to try to lower the temperature on the combustible issue of trans rights – which Trump promised to curtail during his 2024 reelection bid. Since taking office again in January, multiple executive orders have targeted trans people, including servicemembers in the US military.
The chief justice’s 24-page opinion, to be sure, thoroughly rejected the challenge to a Tennessee law that forbids healthcare providers from providing hormones and other treatment for children under age 18 to transition or, as the law states, to “identify with, or live as, a purported identity inconsistent with the minor’s biological sex.”
He said the classification related to age and medical use, rather than to sex, which would have meant it was more likely to violate the Constitution’s equal protection guarantee.
The disputed Tennessee law permits puberty blockers and hormones for minors to treat some conditions, such as a congenital defect or precocious puberty, but not to treat gender dysphoria – that is, the incongruence between one’s gender identity and sex assigned at birth.
Roberts referred to evolving medical assessment of potential harms associated with such treatment, primarily in European countries, as he emphasized that the Tennessee legislature had sufficient grounds for the regulation of medical treatment for minors.
Advocates for the children and families in the high court case argued that hormone treatment can be crucial to the health and wellbeing of transgender adolescents. They contended the Tennessee law amounted to a type of sex discrimination that would have warranted a tougher standard of judicial review.
Justice Sonia Sotomayor, speaking for the three liberal dissenters, lamented Roberts’ approach. “By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims.”
Roberts declined to address whether transgender individuals would specifically merit heightened protection under the Constitution. Yet, Barrett and Thomas, along with Justice Samuel Alito, would have taken on that question, disfavoring trans individuals. (The remaining two conservative justices, Neil Gorsuch and Brett Kavanaugh, signed Roberts’ opinion and wrote nothing more.)
Barrett opened her separate statement by asserting that she would have ruled that transgender people do not constitute a class of people who deserve special protection in the law.
“Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams,” she wrote, joined by Thomas, and adding that if laws singling out transgender people required heightened constitutional scrutiny, “then the courts will inevitably be in the business of closely scrutinizing legislative choices in all these domains.”
In their own separate writings, Thomas and Alito reiterated their criticism of the court’s 2020 case, Bostock v. Clayton County, which held that employees fired for being gay or transgender can sue under the prohibition on sex discrimination in Title VII of the 1964 Civil Rights Act. Roberts’ opinion neither retrenched on Bostock nor extended it beyond the Title VII employment context to the case at hand.
Cecillia Wang, national legal director of the American Civil Liberties Union Foundation, said of the court’s Wednesday decision, “It’s a devastating loss for trans youth and their families who have lost their essential medical care, but it’s significant that the opinion is cabined both on the record and on doctrine. We live to fight another day on other laws discriminating against transgender Americans, including our cases challenging Trump’s animus-fueled policies.
Roberts defers to states on transgender policy
During oral arguments in December, Roberts foreshadowed his concern that legislators should play the leading role on trans rights:
“We might think that we can do just as good a job with respect to the evidence here as Tennessee or anybody else,” Roberts said at the time, “but my understanding is that the Constitution leaves that question to the people’s representatives rather than to nine people, none of whom is a doctor.”
That statement recalled similar sentiment from 10 years ago when Roberts dissented as the five-justice majority declared a right to same-sex marriage.
“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” he wrote in that 2015 case of Obergefell v. Hodges. “Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. … Just who do we think we are?”
That was unusually strident for the chief. Roberts felt so strongly about the case that it marked the first and only time he had dissented aloud from the courtroom bench. (Justices take that rare step when they want to call particular attention to their dissenting view, as Sotomayor did on Wednesday.)
As Roberts referred to legislative control of policy, he avoided the dramatic flourish of 2015.
“This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field,” he wrote as he concluded his opinion in United States v. Skrmetti. “… (W)e leave questions regarding its policy to the people, their elected representatives, and the democratic process.”
For as much as Roberts confined the decision to medical treatment for trans minors, the Trump administration has already signaled that it would try to use the Skrmetti case to augment its actions against transgender servicemembers.
For the liberal dissenters, the current Trump agenda was in the foreground.
As Justice Barrett questioned whether trans individuals had faced government discrimination, Sotomayor wrote, “Transgender people have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence.
And directly citing Barrett’s opinion, Sotomayor added, “(T)hose searching for more evidence of de jure discrimination against transgender individuals, need look no further than the present. The Federal Government, for example, has started expelling transgender servicemembers from the military and threatening to withdraw funding from schools and nonprofits that espouse support for transgender individuals.”
Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson, pointed to “the recent rise in discriminatory state and federal policies and the fact that transgender people are underrepresented in every branch of government,” and said the court majority had rendered “transgender Americans doubly vulnerable to state-sanctioned discrimination.”
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