A divided Supreme Court on Dec. 4, 2004 considered one of the highest profile cases in its current term, leaving perhaps more questions than answers about how it will decide if a state can regulate gender-affirming health care for teenagers.
The case of United States v. Skrmetti is an appeal from the Biden administration and several families from a decision by the Sixth Circuit Court of Appeals upholding a Tennessee law that greatly restricted such care to limited circumstances.
The challengers argued the law violates the 14th Amendment’s Due Process and Equal Protection Clauses, and that the Supreme Court decision in Bostock v. Clayton County (2020) made clear that discrimination on the basis of gender identity constitutes discrimination on the basis of sex. A divided Sixth Circuit Court found that the law did not discriminate on the basis of sex, did not violate due process, and that the Bostock decision did not apply in this case.
Tennessee enacted SB1 in March 2023, which prohibits health care providers from “[p]rescribing, administering, or dispensing any puberty blocker or hormone” to minors, or anyone under the age of 18, who identify with a gender other than their sex assigned at birth. The law has limited exceptions in cases of a “congenital defect, precocious puberty, disease, or physical injury,” and for procedures that began prior to the passage of the act and concluded on or before March 31, 2024. Not long after, Kentucky enacted a similar law, banning medical treatments “for the purpose of attempting to alter the appearance of, or to validate a minor’s perception of, [a] minor’s sex.”
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Soon after the laws were passed, several families from both states challenged them in federal court. Federal district courts in each state blocked the laws from going into effect. On appeal, the Sixth Circuit Court considered both the Tennessee and Kentucky cases together, and reversed the injunction, finding that the states were likely to win. The Biden administration intervened in the Tennessee case to support the challengers, and the case went to the U.S. Supreme Court.
During Supreme Court arguments on Dec. 4, the justices posed a variety of questions to the attorneys for various parties in the case focusing on the equal protection issue.
After U.S. Solicitor General Elizabeth Prelogar opened arguments by calling SB1 a “sweeping ban,” Justice Clarence Thomas countered with a qualification: “It’s really for minors. So why isn’t this simply a case of age classification when it comes to these treatments as opposed to a ban, as you suggested in your opening statement?” Prelogar replied that the law packages an “age classification with a sex restriction,” and that “you can’t avoid heightened scrutiny just because you have a non-protected characteristic that accompanies the protected one.”
Chief Justice John Roberts brought up a different line of arguments about an analysis of medical conditions that was outside of the court’s expertise. “We are not the best situated to address issues like that,” Roberts said. “And if that’s true, doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?” Prelogar said the Court could recognize SB1 as “a facial sex classification” and then have the Sixth Circuit reconsider the case.
Justice Samuel Alito pointed out research in Europe that claimed to find more risks than benefits in the use of puberty blockers and gender-affirming treatments. Prelogar noted however that despite certain research, these countries had not yet banned such care, and again returned to a discrimination argument. “We think the court here just needs to recognize the sex-based classification in this statute and send the case back,” she told Justice Alito.
Alito then described Prelogar as making a “Bostock-like” argument, but said the Bostock precedent did not apply in the Skrmetti case, since that case involved the interpretation of a particular statute. Instead, Alito mentioned two other decisions, Geduldig v. Aiello (1974), a case that upheld denial of certain benefits for pregnancy-related disabilities, and Dobbs v. Jackson Women’s Health Organization (2022), which struck down the constitutional right to abortion, as more appropriate in considering the Equal Protection Clause’s application to medical conditions associated with just one sex. Prelogar countered that the Court’s approach in Bostock to determining if there is a facial sex classification was applicable here, and the reasoning from the two other cases did not contradict this approach either.
Justice Ketanji Brown Jackson saw parallels in the debate in Skrmetti with the Court’s precedent in Loving v. Virginia (1967). “These questions about sort of who decides and the concerns and legislative prerogatives, et cetera, sound very familiar to me. They sound in the same kinds of arguments that were made back in the day, the ’50s, ’60s, with respect to racial classifications and inconsistencies,” Jackson told Prelogar. “I’m thinking in particular about Loving.”
Justice Brett Kavanaugh also asked Matthew Rice, the solicitor for the state of Tennessee, if the questions presented in Skrmetti were best left to state lawmakers to decide. “No matter how you draw these lines, there are risks and… potential benefits and—and harms to people on both sides. And the question of how to balance those harms is not a question for the judiciary. It’s a question for the legislature,” Rice responded.
Justice Jackson told Rice that line of thinking was inconsistent with the Court’s prior decisions. “Can states make a different choice if doing so means that a state’s law operates to treat its citizens differently on the basis of—name the suspect classification. I thought that was the work of the Constitution and the Equal Protection Clause?”
Justice Elena Kagan was also worried about the message that could be communicated by the Tennessee law “that there’s something fundamentally wrong, fundamentally bad, about youth who are … trying to transition. And that’s the way this purpose seems to me.” Rice countered that the law did not “support the narrative that Tennessee wants boys to live as boys and girls to live as girls.”
Also noteworthy was the one justice who remained silent during arguments was the drafter of the majority decision in Bostock, Justice Neil Gorsuch.
The Skrmetti decision will be closely analyzed when the Court issues its decision before late June 2025, since several of the questions presented to the justices will likely be back before them in future years. Other issues mentioned briefly in the arguments were public access to bathrooms and athletic competitions based on gender identity, and the role of parental rights in medical decision making.
Scott Bomboy is the editor in chief of the National Constitution Center.
