“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. It includes judges nominated in both his first and second terms.
In U.S. v. Skrmetti, the Court upheld a state law making it illegal to give transgender minors critically important gender-affirming care. Chief Justice Roberts wrote the majority opinion for a 6-3 Court. The ruling against trans people was made possible by the three Trump justices. Justices Sotomayor, Kagan, and Jackson dissented.
What was this case about?
A 2023 Tennessee law prohibits the use of puberty blockers and hormone therapy for minors if the purpose is to treat gender dysphoria. Those therapies are still available to minors in Tennessee to address other health issues unrelated to gender dysphoria. Health care providers who violate the law can be subject to professional discipline. They can also be sued by minors or their parents. The bill has been supported by forces that have for many decades fought hard to keep LGBTQ+ people marginalized as outsiders from our society and unprotected from discrimination.
The state was sued by three trans teenagers who have relied on the now-banned therapies, their parents, and a doctor who treats gender dysphoria. Because the law violates people’s civil rights, the Biden administration joined the lawsuit and argued that the ban violated the Equal Protection Clause. They all lost in the Sixth Circuit and appealed, but the Court only agreed to hear the Biden administration’s Equal Protection appeal. (After oral arguments, the Trump administration changed the federal government’s position.)
How did the majority rule and how is it harmful?
The majority opinion held that the state ban doesn’t discriminate against trans people or make distinctions based on sex. Instead, “on its face,” the law only classifies based on age (making some medical treatments unavailable to minors) and based on what conditions the medical treatments can be used for. And neither of those classifications requires a heightened level of scrutiny from the courts.
For instance, Roberts acknowledged that hormone blockers would be available to a cisgender boy (to delay early puberty) but not to a transgender boy (to prevent “gender incongruence”). But, according to the majority, that isn’t discrimination, because the treatments are for two different medical conditions.
Since the majority claimed that the law doesn’t discriminate on the basis of being trans, they did not address the question of whether a law targeting trans people triggers heightened scrutiny under the Equal Protection Clause.
However, in concurring opinions, Justice Alito and Justice Barrett (joined by Justice Thomas) chose to address this issue. They concluded that transgender status is not a suspect classification triggering a higher level of judicial scrutiny.
In her dissent, Justice Sotomayor (joined by Kagan and Jackson) sharply criticized the majority. She pointed out that Tennessee’s law expressly classifies on the basis of sex and transgender status, but “the majority refuses to call a spade a spade.”
The dissenters wrote that laws targeting trans people should trigger heightened scrutiny from the courts. Sotomayor and Jackson concluded that the state law should be struck down under this heightened scrutiny, while Justice Kagan would have let the lower court make that determination initially. But they all agreed on the impact of the majority’s decision:
[The majority opinion] does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight. It also authorizes, without second thought, untold harm to transgender children and the parents and families who love them.
Indeed, trans people are increasingly being targeted for discrimination by the Trump administration and far-right state governments. The Supreme Court’s harmful ruling illustrates the significance of having fair-minded judges on the federal bench to protect our health, our families, and our rights.