The Supreme Court on Wednesday upheld a Tennessee law barring transgender treatments for minors, saying that laws involving transgender people don’t automatically trigger the Constitution’s Equal Protection Clause.
The 6-3 ruling gives states some breathing room as they explore the evolving debate — and medical science — over transgender issues.
Chief Justice John G. Roberts Jr., writing for the majority, said the court wanted to give states some “legislative flexibility” as they grapple with it all. He said judges had to be cautious before rushing in with constitutional imperatives.
“The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements,” he said.
The court’s three Democratic appointees dissented, arguing that the Equal Protection Clause applies in cases where sex discrimination is involved — and they said transgender issues are immutably tied up with sex.
“By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims,” Justice Sonia Sotomayor wrote.
Tennessee’s law, SB1, prohibits doctors from prescribing medication such as puberty blockers to juveniles who seek to transition from their birth sex to a gender they identify with.
More than half of the states have similar laws restricting transgender treatments for juveniles.
Wednesday’s ruling suggests they’re on solid legal footing — though it doesn’t impose such laws on the states that don’t already have them.
Instead, the decision cuts to the heart of how transgender medical issues will be treated in constitutional terms.
Justice Sotomayor said the court had already settled this issue with its ruling in the Bostock case, when it found that employment discrimination against a transgender employee violated the Civil Rights Act. She said that case found a deep link between sex discrimination and gender identity discrimination, adding that holds true in the medical context, too.
“By depriving adolescents of hormones and puberty blockers only when such treatment is ’inconsistent with’ a minor’s sex, the law necessarily deprives minors identified as male at birth of the same treatment it tolerates for an adolescent identified as female at birth (and vice versa),” she said.
She said a biological male child who identifies as a female wouldn’t be allowed to take puberty blockers and estrogen treatments, but a biological female would.
But Chief Justice Roberts said that was too narrow. He said the proper way to look at it wasn’t at the level of specific treatments, but rather the purpose.
“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,” he said.
That all matters because of how courts are supposed to treat discrimination cases.
In cases where sex discrimination is apparent, judges are supposed to apply “heightened scrutiny,” which means the state must provide an important reason for it.
By ruling that transgender medical treatments don’t rise to that level, the court told judges to apply more relaxed legal standard known as rational basis. That affords much wider latitude for legislatures to operate.
The case was argued in December, when the Biden administration still controlled the Justice Department and felt Tennessee’s law was discriminatory.
The case is U.S. v Skrmetti. Jonathan Skrmetti is Tennessee’s attorney general.
