The U.S. Supreme Court had only one case slated for oral argument Wednesday morning, but it was a doozy.
With protesters chanting outside, the court heard arguments for two-and-a-half hours from attorneys for the state of Tennessee, the Department of Justice, and the ACLU in a challenge to the constitutionality of Tennessee’s ban on “gender-affirming” care for minors.
In U.S. v. Skrmetti, the Biden Justice Department and the ACLU argued that the state law violates the equal protection clause of the Constitution’s 14th Amendment because it discriminates based on sex. To the contrary, the state of Tennessee and its attorney general, Jonathan Skrmetti, say the law restricts conduct based only on age (for those children under the age of 18) and how certain drugs are used (for so-called gender-affirming care).
Legal challenges to these types of laws are typically brought by parents who seek drugs, such as puberty blockers and cross-sex hormones, and surgical intervention for their children who profess to identify with the opposite sex. They argue that laws like Tennessee’s violate two parts of the 14th Amendment—the due process clause, by depriving parents of the right to make medical decisions for their children, and the equal protection clause, by discriminating against their children based on sex.
President Joe Biden’s administration, rather than parents, brought this challenge, and the U.S. Court of Appeals for the 6th Circuit rejected both arguments. Last year, the 8th Circuit struck down a similar Arkansas law, but only on equal protection grounds.
The Supreme Court, therefore, is addressing only that argument, because that is the one on which the 6th and 8th circuits disagreed. During the argument, however, Justice Amy Coney Barrett clarified that upholding the Tennessee statute on equal protection grounds would not prevent parents from pursuing their claim that such laws violate the due process clause.
‘Main Issue on the Table’
The heart of the challengers’ case is that the Tennessee statute treats people differently based on sex. Justice Ketanji Brown Jackson agreed that this is the “main issue on the table.” The kind of classification of a law is important to determining the appropriate standard of review, which in turn determines how easy or difficult it is to defend that law against a challenge under the equal protection clause.
Most laws that make distinctions as to when they will or will not apply do not do so on the basis of a “suspect class.” Such laws are subject to rational basis review and are constitutional if they are a “rational” way of addressing a “legitimate” legislative purpose—a relatively easy standard to meet.
If a law makes distinctions by classifying people based on a “sex,” it is subject to heightened or “intermediate scrutiny” review. Such laws will be upheld only if they are “substantially related” to achieving an “important” government purpose.
As Tennessee persuasively argues, rather than classifying based on sex, the law classifies on based on purpose. In other words, it distinguishes based on minors seeking drugs for gender transition and minors seeking drugs for any other medical purposes. The Supreme Court has never recognized restrictions on the use of drugs for a particular medical purpose to demand heightened scrutiny review, so rational-basis review applies.
That standard, the state of Tennessee easily satisfies, and the 6th Circuit agreed.
‘A Sex-Based Classification’?
But the challengers want to label the law a sex-based classification to make it harder for Tennessee to defend.
Arguing for the Biden administration, U.S. Solicitor General Elizabeth Prelogar asked the court simply to put the Tennessee statute in that category and send the case back to the lower courts to apply the “intermediate scrutiny” review test. But Justice Brett Kavanaugh observed that, if it did, the case would soon be right back in the Supreme Court’s lap.
Prelogar insisted that the Tennessee statute is obviously based on sex, but her argument is inconsistent with the text of the statute itself. She argued that the law would allow a boy to obtain puberty-blockers to delay experiencing a normal male puberty, but a girl could not. But the statute only says that a minor may not obtain such drugs for the purposes of identifying with a different sex—and that prohibition applies equally to both boys and to girls.
Despite Prelogar’s insistence, the law only restricts access to the drugs based on age and on the medical use of the drugs.
Kavanaugh, Chief Justice John Roberts, and Justice Samuel Alito expressed hesitancy about involving themselves in issues that are better left to state legislatures to decide.
‘Leave the Issue to the Legislatures’?
Roberts argued that the court was “not [in] the best situation to make determinations about medical considerations. Doesn’t that make the case for us to leave the issue to the legislatures?” He also alluded to the court’s landmark ruling in Dobbs v. Jackson Women’s Health Organization in June 2022, which overturned Roe v. Wade, saying that the current case was really about “constitutional allocations of authority.”
In an almost verbatim recitation from the Dobbs majority opinion, he continued: “Perhaps we should leave this issue to the people and their elected representatives.”
Roberts and Kavanaugh also stressed the shaky scientific footing of gender “medicine,” and cited various European reports, saying that “countries who have been at the forefront [are now] pumping the brakes on this,” something that Kavanaugh noted gave the court “a yellow light, if not a red light” in moving forward into “constitutionalizing” a new area of law.
But it was perhaps the line of questioning from Alito that was the most intense of the morning. Alito, too, cited specific studies from Sweden and England, including the bombshell Cass report, which indicated that gender medicine is largely unproven and presents significant health risks to children.
He chided Prelogar, saying that she had “relegated [it] to a footnote.”
In their briefs, both the government and the ACLU asserted a different basis on which the court could provide relief.
If the justices didn’t think the law discriminated based on sex, they could find that the law discriminated on the basis of transgender status, and that, too, they argued, would require that the law be subject to intermediate scrutiny review. This alternative argument also took center stage in Wednesday’s argument.
A majority of the justices, however, did not seem to buy it.
Both Barrett and Alito pointed out that the court had turned down other requests to expand constitutionally protected categories, such as age and mental disability. Their line of demarcation in equal protection clause cases had always been immutable characteristics—those derived by accident of birth, such as race, sex, and national origin.
So, when transgender lawyer Chase Strangio took the podium for the ACLU, Alito continued his grilling, asking pointedly “Is transgender status immutable?” When Strangio responded that it would indeed “satisfy an immutability test,” Alito peppered the ACLU lawyer with various hypotheticals: What about people who are “gender-fluid,” or who change gender identities over time, or who are “nonbinary”?
‘An Immutable Characteristic’?
When Strangio floundered, Alito retorted, “So, transgender status is not an immutable characteristic, is it?”
Unsurprisingly, the more liberal members of the court, Jackson and Justices Sonia Sotomayor and Elena Kagan, appeared more favorable to Prelogar’s and Strangio’s arguments. Jackson likened the current case to Loving v. Virginia, the court’s landmark civil rights decision that determined that laws banning interracial marriage violated the Equal Protection and Due Process clauses of the 14th Amendment.
In arguing that the state had once legislated in such a way based on racial classifications, and that the court had overridden those state legislative judgments based on the Constitution’s promise of equality, Jackson argued it should do the same here.
Twenty-six states have passed laws similar to Tennessee’s in the past few years, and some of them have been challenged in the courts. But U.S. v. Skrmetti is the first case of its kind to reach the Supreme Court.
The court’s decision, which likely won’t be issued till June, no doubt will have a significant impact on the legislative and litigation efforts on this controversial issue for years to come.
