The US Supreme Court will hear oral arguments Wednesday in a landmark case involving a Tennessee law that prohibits gender-affirming healthcare for minors. United States v. Skrmetti marks the Supreme Court’s first opportunity to address transgender rights under the Equal Protection Clause and comes in the wake of a rise in state laws regulating gender-affirming care and a presidential election that brought a proliferation of debate over transgender rights to the national stage.
We have compiled a comprehensive explainer of this case which is poised to significantly impact states’ power to regulate gender-affirming care and transgender rights generally. Read on to learn more about the legal questions that will come before the Supreme Court, the case’s origins, the parties involved, and what is at stake in this decision.
What is the law being challenged here?
At issue in this case is Tennessee Senate Bill 1 (SB1) a state law prohibiting healthcare providers from providing medical procedures that enable a minor to identify or live with a gender identity “inconsistent with the minor’s sex” or to treat “discordance between the minor’s sex and asserted identity.”
SB1 defines sex as sex assigned at birth. The medical procedures at issue in this case are hormone therapies and puberty blockers, often used to treat gender-dysphoria. (The ban on gender-affirming surgeries is not before the Supreme Court in this case.)
SB1 includes exceptions that allow minors to receive hormone therapies to treat issues unrelated to affirming a gender identity inconsistent with one’s sex assigned at birth, such as precocious puberty or hormonal irregularities.
What is the procedural background of the case?
In 2023, a group of transgender minors, their parents, and healthcare providers challenged SB1 and a similar Kentucky law in federal court. They sought preliminary injunctions — orders from a judge that would prevent the laws from taking effect. The district court initially granted the injunctions, finding that the laws likely discriminated on the basis of sex and infringed on parents’ fundamental rights. Tennessee appealed to the US Court of Appeals for the Sixth Circuit which stayed the injunctions, allowing SB1 to go into effect until further legal proceedings. In response, the original challengers and the Biden administration both petitioned the US Supreme Court, urging the nation’s highest justices to review the constitutionality of SB1.
Who are the parties in this case?
The petitioners in this case include the Biden administration and private plaintiffs with personal or professional stakes in the Supreme Court decision, including transgender minors, their parents, and healthcare providers. The petitioners are represented by non-profit legal organizations such as the American Civil Liberties Union (ACLU) and Lambda Legal.
The respondent is Tennessee Attorney General Jonathan Skrmetti.
ACLU attorney Chase Strangio, who will present on behalf of the private plaintiffs, is set to become the first openly transgender lawyer to argue before the Supreme Court. Mr. Strangio will split the petitioners’ argument time with US Solicitor General Elizabeth Prelogar, who will represent the Biden administration.
Matthew Rice, Solicitor General of Tennessee, will argue on behalf of the respondent.
What specific legal issue is the Supreme Court being asked to decide regarding SB1?
The Supreme Court will decide whether Tennessee SB1 violates the equal protection clause of the 14th Amendment. The equal protection clause guarantees that all people are treated equally under the law. But states and the federal government can make laws that appear to discriminate and treat people in distinct ways — referred to as “classifications” — so long as the government has a valid reason for doing so. When deciding equal protection cases, the Supreme Court applies different levels of review based on the classifications, known as “tiers of scrutiny.”
The least intensive level of scrutiny, rational basis review, applies when a law does not classify based on a protected class, such as sex or race. More heightened levels of scrutiny, such as intermediate or strict scrutiny, apply when a law classifies based on a protected class, such as sex or race, or infringes on a fundamental right.
When reviewing SB1, the district court applied intermediate scrutiny, finding that the law classified on the basis of sex. But the 6th Circuit Court of Appeals invalidated the district court’s decision and applied rational-basis review, finding that SB1 classifies based on age and medical condition, but not sex. A critical component of the Supreme Court’s decision in Skrmetti will be what tier of scrutiny should be used to assess SB1.
What is Tennessee’s legal position?
Tennessee argues that the 6th Circuit’s use of rational basis review was correct because the law does not regulate medical-care based on one’s sex; it regulates hormone treatments for all minors, regardless of sex. The state maintains it is regulating a medical treatment for minors that just happens to involve consideration of sex.
If rational basis review is applied, the Court will likely adopt the 6th circuit opinion, find that the state’s legitimate interest in protecting children is rationally related to regulating this type of medical treatment for minors, and uphold SB1.
What are the challengers arguing?
The parties challenging SB1, however, argue that the Court should apply intermediate scrutiny — a heightened level of review that applies when a law classifies on the basis of sex. They argue that SB1 does classify based on sex insofar as it bars minors from using hormones inconsistent with their sex assigned at birth. The challengers also point out that, under the exceptions to SB1, a minor can have hormone treatments to align with their sex assigned at birth, like precocious puberty treatment, but cannot have hormone treatments to align with an identity inconsistent with their sex assigned at birth, necessitating explicit discrimination based on one’s sex.
If the Supreme Court agrees that the law classifies on the basis of sex and applies intermediate scrutiny, Tennessee will have to prove that the law furthers an important governmental interest in a way that is substantially related to that interest. Under this less-deferential standard, it becomes harder for the state to win.
What could happen at oral argument?
To determine the appropriate level of review, Wednesday’s oral argument will likely focus on whether SB1 discriminates on the basis of sex, as the challengers argue, or if it is just a regulation of medical treatment, as the state maintains. There may also be some discussion devoted to whether the law would satisfy intermediate scrutiny if the Court were to apply it. But if the Court finds intermediate scrutiny is appropriate, it will most likely remand the case back to the 6th Circuit for further determinations.
Another possible way for intermediate scrutiny to be triggered would be for the Court to find that being transgender is a protected class itself, but it’s unlikely the Court will reach this issue, as it is somewhat beyond the scope of the case and controversial.
What is at stake in this case?
Since gender-affirming care, gender-dysphoria, and transgender rights are relatively new issues, one underlying question is whether this area of law should be constitutionalized at all. Tennessee’s briefs express concern that a constitutional rule at this moment would be too much too soon, and that it would be more appropriate to let states decide how to regulate this new area of law themselves. Tennessee worries that a decision against them will undermine states’ rights and impose premature constitutional burdens.
Tennessee, and other supporters of laws like SB1, also worry about the “lifelong consequences and risks” involved in hormone treatments for minors. Attorney General Skrmetti and his team were unavailable for comment prior to oral argument, but their briefings demonstrate fear that applying heightened scrutiny and taking control out of states’ hands could bring serious harm to minors.
The challengers respond that while some deference to states is appropriate, caution is also due. Even in emerging areas of law, the challengers believe that heightened scrutiny is still needed to determine whether a law is actually legitimate, or if it is just harmful stereotyping and dangerous discrimination. Counsel for the private plaintiffs argue that SB1 discriminates against transgender people and punishes minors who do not conform to sex-based stereotypes.
The challengers also worry that a decision in favor of Tennessee could undermine transgender rights more generally. I spoke with David Cole, a professor at Georgetown University Law Center, the former Legal Director of the ACLU, and counsel for the private plaintiffs in this case. Professor Cole explained his concern that if the Court applies rational basis review to SB1, it could become easier for other states to make laws prohibiting gender-affirming care not only for minors but for adults too, since the state’s arguments that the law does not discriminate on the basis of sex would apply equally to bans on adults. “It would be extraordinary for the Court to rule that a law that prohibits treatment ‘inconsistent with sex’ is somehow sex-neutral,” Professor Cole said, “and such a ruling would weaken protections against sex discrimination far more broadly.” But perhaps the challengers’ gravest fear is that the Court could hold that transgender discrimination does not count as sex discrimination under equal protection at all which, according to Professor Cole, would be a “terrible loss,” denying transgender people an entire realm of legal protections.
We will be in the press box on December 4th, eager to hear what the Justices ask during oral argument and ready to report back for JURIST readers. Stay tuned for more on this historic case that will have a significant impact on the future of gender-affirming care.
