The Supreme Court has issued a major decision upholding Tennessee’s ban on so-called gender-affirming care, such as puberty blockers and cross-sex hormones, for minors. Its decision on June 18 will likely influence how states craft legislation and how other gender-related cases unfold in the legal system.
In the case United States v. Skrmetti, a majority of the justices disagreed with the Biden administration’s argument that Tennessee’s law should undergo more rigorous scrutiny in the courts. Instead, Chief Justice John Roberts said in his majority opinion that courts should apply a less rigorous standard known as rational basis, under which states have to show that their law is rationally related to a state interest.
The Tennessee law forbids all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a [disagreement] between the minor’s sex and asserted identity.”
Roberts wrote that about 1.6 million Americans older than 13 “identify as transgender, meaning that their gender identity does not align with their biological sex.”
1. Laws Like Tennessee’s Are Constitutional
States across the country have passed or considered laws similar to Tennessee’s. With the Supreme Court’s new ruling, it seems more likely that such bans will survive future legal challenges.Roberts said courts shouldn’t view the issue through the lens of sex-based discrimination, which would invite challenges to state laws under the equal protection clause of the 14th Amendment. The state law here forbids puberty blockers and hormone treatments based on the age of the patient, as opposed to the patient’s sex, he said.
The court’s language about Tennessee’s reasons for adopting the law also indicates that states could assert legitimate interests in shielding minors from risky procedures.
“The legislature found that minors lack the maturity to fully understand these consequences, that many individuals have expressed regret for undergoing such treatments as minors, and that the full effects of such treatments may not yet be known.”
A lower court had expressed concern about whether the Tennessee law discriminated based on “transgender status.” The majority opinion, however, seemed to give states an edge in opposing that type of argument in the future. That’s because the Supreme Court said that the law didn’t classify individuals based on “transgender status.”
Without that classification, the court said it also didn’t have to address whether a new class of individuals must receive special consideration under the law.
“This Court has not previously held that transgender individuals are a suspect or quasi-suspect class,” Roberts said. “And this case, in any event, does not raise that question.”
Justice Samuel Alito disagreed on this point, saying he was “uneasy” with the majority’s analysis of the plaintiffs’ claim that the state law unconstitutionally discriminates on the basis of “transgender status.”
He indicated instead that the law might do that, but would nonetheless be constitutional. “Neither transgender status nor gender identity should be treated as a suspect or ‘quasi-suspect’ class,” he said, referring to the types of groups who receive protection under the 14th Amendment.
2. Liberal Justices Strongly Dissent
The three liberal justices—Ketanji Brown Jackson, Sonia Sotomayor, and Elena Kagan—were divided on some legal issues but agreed that the majority erred in saying the Tennessee law shouldn’t face a tougher standard of review in courts.Sotomayor, in particular, used strong language, writing: “By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims. In sadness, I dissent.”
Later, in a passage not joined by Kagan, Sotomayor and Jackson said the court “refuses to call a spade a spade” and “obfuscates a sex classification” to allow the state law to withstand constitutional scrutiny.
Kagan said she avoided joining that section of the dissent because she had “no view” on how Tennessee’s law would fare if the court were to send it back to the appellate level to be reviewed more rigorously.
Regardless, all three agreed in the view that “gender-affirming medical care can meaningfully improve the health and well-being of transgender adolescents.” Another passage in the dissent plainly stated that Tennessee’s law “classifies on the basis of sex, so the Constitution demands intermediate scrutiny.”
Part of the dissent’s reasoning was based on a case the court decided in 2020. In Bostock v. Clayton County, the majority opinion authored by Justice Neil Gorsuch said, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
That case focused on Title VII of the Civil Rights Act, which prohibits workplace discrimination based on sex and other characteristics. However, lower courts, the Biden administration, and the dissent in Skrmetti hold that the reasoning in Bostock should apply to Tennessee’s law.
3. Bostock Doesn’t Apply
Gorsuch was notably quiet during the oral argument in December 2024 and didn’t write a concurring opinion. Instead, he joined the majority opinion, which declined to extend Bostock beyond lawsuits centered on Title VII.
“We have not yet considered whether Bostock’s reasoning reaches beyond the Title VII context, and we need not do so here,” Roberts said.
He also argued that Tennessee’s situation and the situation in Bostock weren’t comparable.
“Bostock held that, in such a circumstance, sex is the but-for cause of the employer’s decision—change the homosexual male employee’s sex and he becomes a straight female whose attraction to men the employer tolerates,” Roberts said.
“Not so with SB1,” he said, referring to the Tennessee law.
He added that a girl with minor unwanted facial hair could receive puberty blockers under Tennessee’s law if she were diagnosed with male-pattern hair growth.
Alito said that Bostock didn’t apply to this case but refrained from joining that portion of the majority’s opinion. He indicated that he thought the majority had gone too far in applying Bostock’s reasoning to the equal protection clause.
4. Questions Remain About Gender and the Law
It’s unclear how Roberts’s opinion will affect lower courts, but Sotomayor presented a bleak outlook. Her dissent accused the majority of doing “irrevocable damage to the Equal Protection Clause” and inviting “legislatures to engage in discrimination by hiding blatant sex classifications in plain sight.”
Both indicated that Bostock’s reasoning could be applied to questions about equal protection. Both also quoted Gorsuch’s statement that it’s “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
5. Barrett Says ‘Transgender Status’ Not Entitled to Special Consideration
Future cases could depend on how the Supreme Court treats “transgender status.”Alito, who dissented from Bostock, said that, for the purposes of argument, he assumed the law discriminated on the basis of “transgender status.” But even assuming that was the case, Alito said he still wouldn’t have required more rigorous review from other courts.
Both he and Barrett denied that “transgender status” made someone part of a suspect class.
Barrett said that “transgender status” differed from race and sex in that it did not contain the same type of immutable characteristics as those other two categories.
Alito was similarly skeptical of other criteria for including someone within the type of class that would be subject to greater scrutiny. His opinion, he said, “should not be taken as a denial of the discrimination that transgender people have faced.”
