By Andy Beyer
Earlier this month, the Supreme Court heard oral argument in United States v. Skrmetti, a case with far-reaching implications for transgender youth across the country.
The case turns on whether Tennessee law SB1, which bans gender-affirming care for transgender minors, passes constitutional muster. If the Supreme Court upholds the law, one legal shield against the dozens of passed or pending laws restricting transgender medical care will be removed, giving states freer rein to pass anti-trans laws.
Throughout the oral argument, some of the justices seemed to suggest that striking down the law would be tantamount to judicial overreach. Justice Brett Kavanaugh, for instance, repeatedly asked Solicitor General Elizabeth Prelogar who ought to decide when it comes to gender-affirming care. The theme he sounded was that the high court should sit out and allow the debate to play out among the states.
“If the Constitution doesn’t take sides, if there’s strong, forceful scientific policy arguments on both sides in a situation like this, why isn’t it best to leave it to the democratic process?” Kavanaugh asked.
The error in this approach, as Prelogar observed in her answer, is that the Constitution does take a side. The Fourteenth Amendment guarantees the equal protection of the law for all citizens. Beginning with Craig v. Boren in 1976, the Supreme Court has recognized that when the government draws a distinction on the basis of sex, the law must be subject to heightened scrutiny, at the very least requiring that the state action further an important governmental interest and be substantially related to that interest. There is no exception for complicated, contested or medical questions.
SB1 clearly makes such a sex-based classification. It does so on its face, banning hormone treatments and puberty blockers only if they allow a minor to adopt a gender identity “inconsistent with the minor’s sex.” As a result, a minor whose biological sex is male may access masculinizing hormone treatments; a minor whose biological sex is female may not. That is discrimination on the basis of biological sex. Tennessee may not use such a classification to target transgender youth while carving out the circumstances in which cisgender minors seek access to similar care for similar reasons, yet that is precisely the purpose and effect of SB1.
An issue does not shed its constitutional valence simply because it acquires a policy one. Much of the court’s robust equal protection jurisprudence involved controversial policy concerns, such as the male-only admissions policies at the Virginia Military Institute that the court struck down in United States v. Virginia in 1996. Perhaps Craig, which dealt with a regulation on the sale of beer, could be considered an exception, but even then, there were at least rational policy discussions around drunk driving rates. In these cases, the court balanced the countervailing considerations in its scrutiny analysis, but it did not deny the presence of the classification.
Justice Ketanji Brown Jackson, meanwhile, referred several times to another stark example: pseudoscientific beliefs about racial differences that were deployed to justify anti-miscegenation laws of the ilk that the Supreme Court rejected in the landmark 1967 ruling Loving v. Virginia.
Justice Jackson’s references to parallels with Loving further illustrate the danger of Tennessee’s argument. The attorney for the state and the lower court claimed that the law did not classify on the basis of sex because minors of both sexes were forbidden from accessing gender-affirming care. However, assertions in this vein could be and were made in defense of racially discriminatory provisions: a Black person could not marry a white person, nor could a white person marry a Black person, and so, the argument went, there was no problem. The court in Loving was correct to reject that argument, and the court today should likewise reject it here. While the court applies a stricter standard of review for race-based classifications than sex-based ones, that difference becomes relevant when weighing the interests on each side, not in determining whether a classification is present in the first place.
The Supreme Court cannot and should not ignore a constitutional issue simply because it is morally or medically freighted. While the Constitution secures people’s right to believe what they choose about gender transition, it does not exempt the courts from upholding equal protection in all the diverse contexts in which it arises. Ultimately, when it comes to gender-affirming care for a minor, it should be families, doctors and the minors themself making the decisions, not legislators imposing their views.
However, the question in Skrmetti does not even require the high court to affirm this view. Instead, all that the court needs to do is reiterate the well-established fact that a state cannot freely draw lines based on sex. The Supreme Court should not shirk its duty to do so.
Andy Beyer (he/him), a member of Americans United’s Youth Organizing Fellowship, is a recent graduate of the University of California-Berkeley, where he studied political science.
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