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Oral arguments were heard in the Supreme Court on Wednesday United States v. SkrmettiArguably the most important transgender rights case the court has ever heard. The case asks whether discrimination against transgender people can violate the Constitution — and it seems most justices don’t think so. The likely result is that courts will allow states to ban health procedures that enable gender-affirming care, both for minors and potential adults.
The argument went terribly wrong for transgender Americans, as many judges suggested a carve-out from the general constitutional rule limiting all forms of gender-based discrimination. Chief Justice John Roberts, for example, has suggested giving the government broad authority to engage in such discrimination in medical contexts — a ruling that could have serious implications for women in general, including cisgender women.
Justice Ketanji Brown Jackson said at one point in the argument, “I’m getting kind of nervous” that the court is about to chip away at one of the “bedrock” principles of US anti-discrimination law.
I screamed A 2023 Tennessee law involves banning trans youth from receiving medical treatments such as puberty blockers and hormone therapy, if those treatments are prescribed to help them transition. Notably, the Act is quite clear that its purpose is to “encourage[e] Minors to praise their sex” and that the young may not be “contemptuous of their sex”.
Although this particular law involved a ban on sex-affirming care for minors, Tennessee’s arguments for the law could also allow the government to prohibit adults from receiving the same treatment.
At least four justices — Roberts and Justices Clarence Thomas, Samuel Alito and Brett Kavanagh — were present to vote to uphold Tennessee’s law. Justice Amy Coney Barrett, meanwhile, was a little less direct in her questioning, but she seemed sympathetic to Tennessee’s position. Most notably, Barrett signaled through this argument that he was open to Roberts’ call for a medical curveout from the Constitution’s restrictions on sex discrimination.
Justice Neil Gorsuch, a Republican who wrote a landmark opinion defending trans rights in 2020, remained silent throughout the argument. That left only three Democrats on the court to defend a conservative approach to laws that discriminate on the basis of sex, casting a skeptical eye on any law that treats people differently because of the sex they were assigned at birth.
The biggest question I screamedIn other words, maybe how The court instead found a way to uphold Tennessee’s law whether The court does so. And it seems fairly likely that the court’s opinion could fundamentally change the rules governing sex discrimination by the government.
How current court precedents approach the law to draw lines based on sex
The most important thing to understand about Tennessee’s law is that it clearly draws the line based on the sex of the patient assigned at birth. If a child is assigned male at birth If testosterone is prescribed by their doctor, Tennessee allows the child to receive that treatment. But a child who is assigned female at birth may not be.
In fact, Matthew Rice, Tennessee Solicitor General, while defending his state’s law, tried many times to deny that the law was classified based on sex, he finally admitted that he did so after being pressed by Justices Sonia Sotomayor and Jackson.
Jackson, for example, asked Rice whether the law would allow a boy who seeks testosterone because he wants to deepen his voice and otherwise enhance his masculinity to receive that treatment, and Rice eventually conceded that, under the specific law in this case, , the boy could. Rice then finally conceded that if a girl tried the same treatment for the same purpose — to deepen her voice and make her body look more masculine — Tennessee law would prohibit her from receiving the treatment.
This is important because, in United States v. Virginia (1996), the Supreme Court held that “all sex-based classifications” are subject to “higher scrutiny,” meaning that the law is presumptively unconstitutional and the state must prove that its law was not impermissibly enacted for sexist reasons. Some laws survive this heightened scrutiny, if those laws are based on real differences between the sexes and not on prejudice or stereotypes. But, under VirginiaAny law that draws the line based on gender in any way receives this high level of review from the federal courts.
Significantly, neither the Biden administration, which argued against Tennessee’s law in the Supreme Court, nor the ACLU, which represents families seeking access to care for their transgender children, has asked the Supreme Court to strike down Tennessee’s law definitively now. Rather, the only issue before the court is whether to remand the case to a federal appeals court that previously declined to apply the heightened scrutiny required. Virginia.
But many judges are determined not to apply Virginia In this case. Roberts, for example, warned that there were “medical nuances” in this case that were not present here. Virginia or some other previous gender discrimination case in court. And he suggested that courts should take a more deferential view of state lawmakers in cases involving drugs because judges aren’t good at ruling on treatment.
Kavanaugh echoed Roberts’ thinking, at one point suggesting that the Constitution does not take sides in a “medicine and policy debate”.
Barrett was also sympathetic to Roberts’ view, asking ACLU lawyer Chase Strangio if the court had ever applied heightened scrutiny to a case involving medical judgments.
Strangio had an excellent answer to this question: During the pandemic, several churches and other religious institutions claimed they had a constitutional right to violate state rules prohibiting large gatherings of people in one place to prevent the spread of Covid. The court ultimately split 5-4 in the case, with five of the Republican justices concluding that the right to free exercise of religion trumps a state’s medical determination that large gatherings are too dangerous.
Barrett, however, disagreed, claiming that the Covid case, in which he ruled with the majority, did not involve a “deep dive into the medical evidence”. (Roberts dissented on Covid, so his position on Covid is consistent with what he thinks I screamed.)
Thomas and Alito’s questions, meanwhile, were consistently hostile to two lawyers arguing for trans rights. When you add the votes of Roberts, Kavanaugh and Barrett, it’s probably a majority in favor of Tennessee’s law.
If the court were to take Roberts’ approach, that would likely not be a devastating blow to transgender youth and their families. It is also a sea change in the court’s approach to all forms of gender discrimination. again, Virginia holds that “all” laws that draw the line based on gender must survive heightened scrutiny, though some laws eventually clear this hurdle. “All” means all. But many justices are now inclined to hold that only certain laws that classify people on the basis of sex are presumptively unconstitutional.
This case reaches the court at the worst possible moment
It is difficult to divorce this case from its political context. During his recently victorious presidential campaign, President-elect Donald Trump embarked on a campaign of anti-trans rhetoric — spending literally millions of dollars on ads that, in the words of the Washington Post, “Paint trans people as a threat to society” Republicans control six of the Supreme Court’s nine seats, so it’s not surprising that most Republican justices appear to be aligned with their party’s position on trans rights (the court’s three Democrats, for that matter, also appear to be aligned with their own party).
But, in their apparent eagerness to uphold this Tennessee law, the court’s Republican majority likely isn’t about to strike back against trans rights. They seem prepared to do considerable damage to the legal norms governing gender discrimination in general. Perhaps Tennessee, if the case is sent back to a lower court, can offer a justification for its law that survives higher scrutiny. But most justices seem ready to overrule VirginiaIts statement that all gender-based classifications must undergo such an examination.
That’s why, near the end of Strangio’s time on the stage, Jackson said he was “suddenly quite worried” about the implications of the court’s questions.
If courts can carve out a medical carve out of the general rule that all gender discrimination is presumptively unconstitutional, what other carves can they carve out in the future? For that matter, will the Court make similar carvings for other discriminations such as caste discrimination? Jackson even compared Tennessee’s argument to Virginia’s failed defense of the ban on interracial marriage. Loving vs. Virginia (1967).
All that said, the court will likely not issue an opinion I screamed until June 2025, when the court typically decides the biggest case of its term. He may have time to convince some of his peers to compromise for a voice like Jackson’s. But based on Wednesday’s argument, I screamed This is perhaps not a historic blow to transgender Americans, but a potentially similar blow against all people who may be subject to unconstitutional discrimination.
