By leaving the “wisdom” and “fairness” of transgender minors’ health care to “the people, their elected representatives, and the democratic process,” the Supreme Court’s conservative majority, in a decision starkly reminiscent of its 2022 overruling of Roe v. Wade, left in place a long and difficult legal path forward for advocates of transgender rights.
The 6-3 majority in ruled that Tennessee’s law prohibiting medical professionals from providing hormone therapy or puberty-delaying drugs to transgender minors does not violate the Equal Protection Clause of the Fourteenth Amendment. The majority rejected arguments that the law discriminated on the basis of sex and transgender status.
If the law had discriminated because of sex-based classifications, the Court would have applied what it calls “heightened scrutiny” to the law. The state would have to show that the law “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.”
Instead, the Skrmetti majority ruled that the Tennessee law classifies on the basis of age and medical treatment. As such, the law was subject to 黑料网’s lowest, weakest, test: rational basis review. It was upheld so long as “any reasonably conceivable state of facts” could justify it.
The law’s “age- and diagnosis-based classifications are plainly rationally related to…the State’s objective of protecting minors’ health and welfare,” wrote Chief Justice John Roberts Jr., citing legislative findings that gender affirming care may lead to physical and psychological harms to minors.
Justice Sonia Sotomayor led the three dissenters. She wrote that the majority was simply wrong about how the law classifies. Sex, she wrote, determines access to the covered medication under the state law.
“Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl,” she wrote.
So where does that leave transgender advocates, the parents of children with gender dysphoria, and also medical professionals?
When he believed the Supreme Court was rejecting or retrenching federal constitutional rights, the late Justice William Brennan liked to remind people that state constitutions may be more protective of rights than the federal constitution. They can’t be less protective, but they can be more protective.
As happened after the Supreme Court revoked women’s right to abortion in 2022, the battles for transgender rights will play out more and more in state courts and under state constitutions.
State constitution equal protection challenges to anti-transgender laws have had “varying outcomes,” according to, a project of the Brennan Center for Justice at New York University Law School.
State courts in Ohio and Texas have rejected equal protection challenges to bans on certain medical treatments for trans minors and on the participation of female trans students on female sports teams. But courts in Montana, Utah and Iowa have struck down various laws targeting transgender people because they violated state equal protection or privacy rights.
State courts haven’t had many opportunities yet to weigh in on transgender rights cases, but that may soon change.
“The last three years have brought an explosion of state-level anti-trans legislation,” according to State Court Report. “In addition to laws limiting health care for trans kids — 32 passed across 25 states — states have barred trans girls from participating in girls’ sports, denied students name and pronoun autonomy, prohibited trans people from using public restrooms that match their gender identity, and more. According to the , about 150 anti-trans bills have become law in 27 states since the start of 2022.”
Much more will be written and said about the Skrmetti decision, its impact and what it says about the Roberts Court in the days ahead.
Marcia Coyle is a regular contributor to Constitution Daily. She was the Supreme Court Correspondent for The National Law Journal and PBS NewsHour who has covered the Supreme Court for more than three decades.
