SCOTUS upholds Tennessee's ban on trans minors' gender-affirming medical care

The 6-3 decision from Chief Justice John Roberts, issued along partisan lines, will serve to empower those seeking to discriminate against transgender people.

The U.S. Supreme Court on Wednesday morning upheld Tennessee’s ban on gender-affirming medical care for transgender minors as constitutional.

To do so, Chief Justice John Roberts held for the 6-3 conservative majority, the state needed only show a “rational basis” for the law — a basis the court easily concluded that Tennessee had shown in passing its law, S.B. 1.

The decision came over the dissent of Justice Sonia Sotomayor, joined by Justices Elena Kagan and Ketanji Brown Jackson.

“By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims,” Sotomayor wrote for the Democratic appointees.

The court’s Republican appointees rejected the arguments from the plaintiffs who challenged the law, the United States during the Biden administration, and most district courts to hear challenges to such bans — that the bans classify on the basis of sex and accordingly are subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment or should be examined under heightened scrutiny because they classify on the basis of transgender status.

In affirming the judgment of the U.S. Court of Appeals for the Sixth Circuit upholding the law, the Supreme Court rejected even the premise that Tennessee’s ban classifies either on the basis of sex or on the basis of transgender status.

It was a stark decision from Roberts using circular reasoning that will serve to empower those seeking to discriminate against transgender people — although the decision does leave some narrow routes open to challenging certain anti-trans laws and policies going forward.

Specifically, the court in its decision in U.S. v. Skrmetti did not rule on whether heightened scrutiny applies to classifications based on transgender status and allowed for claims that animus motivated any challenged policy or law. Additionally, Roberts noted that “SB1 does not restrict the administration of puberty blockers or hormones to individuals 18 and over” — leaving open the possibility that the court could view restrictions on adult care differently.

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The classification ruling

Roberts first held for the court that Tennessee’s law, S.B. 1, does not classify on the basis of sex. Instead, Roberts insisted, the law only classifies on the basis of age and what he called “medical use.”

“Under SB1, no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence; minors of any sex may be administered puberty blockers or hormones for other purposes,” Roberts wrote.

Such wordplay is disingenuous at best. As Justice Sonia Sotomayor wrote in dissent, a portion of which she read from the bench, “The problem with the majority’s argument is that the very ‘medical purpose’ SB1 prohibits is defined by reference to the patient’s sex. Key to whether a minor may receive puberty blockers or hormones is whether the treatment facilitates the ‘medical purpose’ of helping the minor live or appear ‘inconsistent with’ the minor’s sex.“ She was joined in most of her dissent, including that portion, by both Justices Elena Kagan and Ketanji Brown Jackson.

Roberts went further still. For himself and Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, he also found for the court that S.B. 1 — again, a ban on gender-affirming medical care for transgender minors — does not classify based on transgender status.

On that front, Sotomayor continued, the majority was “plainly wrong” because that interpretation is “contrary to the statute’s text.”

Even Justice Sam Alito, who joined the bulk of the court’s opinion and the majority’s decision upholding the law, thought the latter ruling was too much and did not join that part of the court’s opinion, writing that the argument that the law classifies based on transgender status “cannot easily be dismissed.“

But, there remained a majority in agreement that the law that bans medical treatment for transgender minors seeking to address their gender dysphoria does not classify based on transgender status. Instead, Roberts wrote, the law “does not exclude any individual from medical treatments on the basis of transgender status but rather removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions.“

To do this, Roberts largely relied on the reasoning of a 1974 pregnancy discrimination case, Geduldig v. Aiello, in which the court held that a California insurance program that excluded pregnancy-related disabilities from disability insurance coverage was not discriminating on the basis of sex because the program “divided potential recipients into two groups: ‘pregnant women and nonpregnant persons.’” The was not a sex classification “[b]ecause women fell into both groups,” Roberts wrote.

“By the same token,” he continued, “SB1 does not exclude any individual from medical treatments on the basis of transgender status but rather removes one set of diagnoses—gender dysphoria, gender identity disorder, and gender incongruence—from the range of treatable conditions.“

In her dissent, Sotomayor — joined by Kagan and Jackson — countered this on two fronts, first by writing that Geduldig was “‘egregiously wrong’ when it was decided” and that, “[i]n any event,“ its “faulty reasoning” doesn’t work here.

“[W]hile not all women are pregnant, all transgender people, by definition, ‘identify with, or live as, a purported identity inconsistent with [their] sex,’” Sotomayor wrote, quoting S.B. 1. “So, unlike the classes of pregnant persons and women, the class of minors potentially affected by SB1 and transgender minors are one and the same.“

For his part, Alito did not “enter into this debate” because of how he went on to address the transgender status classification itself.

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Applying “rational basis”

With those findings, the court, accordingly, only considered whether there was a “rational basis” for the law — the highly deferential, lowest level of scrutiny for reviewing the constitutionality of laws that only requires “plausible reasons” for legislative or other governmental action.

Alito was back with the majority on this point because, in his view, the question of whether the law classifies based on transgender status doesn’t ultimately matter because, he wrote, “transgender status does not qualify under our precedents as a suspect or ‘quasi-suspect’ class.“

As to rational basis, then, Roberts wrote for all six Republican appointees, “SB1 clearly meets this standard,“ holding that the state “concluded that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence.“

Under rational basis review, that is enough. “SB1’s ban on such treatments responds directly to that uncertainty,“ Roberts concluded. Importantly, although Roberts wrote that the age limitation of the law was “relevant” to the case on Wednesday, far-right lawmakers and advocates are almost certain to argue that the reasoning of the decision, including regarding “medical use,” could apply to any gender-affirming medical care restrictions, regardless of age.

Roberts’s opinion also, more broadly, makes a mess of equal protection law. In a final portion of her dissent only joined by Jackson, Sotomayor noted that Wednesday’s decision applying rational basis review to the court’s examination of S.B. 1 “marks the first time in 50 years that this Court has applied such deferential review, normally employed to assess run-of-the-mill economic regulations, to legislation that explicitly differentiates on the basis of sex.”

In a separate dissent, Kagan noted that she did not join the final part of Sotomayor’s dissent because it delved into the application of heightened scrutiny. Given that the Sixth Circuit had not applied heightened scrutiny at all, she noted that the challengers and United States under the Biden administration had only asked the Supreme Court to hold that intermediate scrutiny applies and allow the lower courts to consider the law under that standard. As such, she wrote, she would “start and stop” there.

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What else happened?

Roberts and Alito, with their minor differences in upholding the law, and Sotomayor and Kagan, with their slight difference in dissenting, were not the only justices to write on Wednesday in the case.

Barrett, joined by Thomas, joined Roberts’s opinion in full but wrote a concurring opinion to explain why, in her view transgender status should not be subjected to heightened scrutiny under the Equal Protection Clause.

Because Roberts held for the court, including Barrett and Thomas, that S.B. 1 does not classify on the basis of transgender status, however, the court reached no ruling on that front — leaving the question open.

Notably, though, both Alito and Barrett suggest in their opinions that they are generally in agreement that transgender status should not be subject to heightened scrutiny.

Finally, Thomas, for himself alone, also wrote a concurring opinion, largely to strike out at “self-described experts“ supporting gender-affirming medical care, including with a section raising the “ethical” questions he sees involved in such care.

This is a breaking news report. It was expanded and updated after initial publication, with the final update at 5:30 p.m. Check back at Law Dork for the latest on Supreme Court and LGBTQ legal news.