Chloe Miracle-Rutledge is a JURIST Supreme Court Correspondent and a 2L at Georgetown University Law Center in Washington, DC.

Wednesday morning I attended oral arguments at the United States Supreme Court for United States v. Skrmetti, a case concerning whether Tennessee Senate Bill 1’s (SB1) ban on gender-affirming care for minors violates the Equal Protection Clause.

Over nearly two and half hours, the justices engaged three different advocates with questions about the legal issues of the case and the real-world ramifications their decision could have.

The justices’ questioning seemed aligned with their political leanings. The conservative justices appeared ready to leave decisions about gender-affirming care to states and legislatures, expressed skepticism about whether the law classifies based on sex, questioned the history of transgender discrimination, and worried about the risks of gender-affirming care for minors.

Justice Neil Gorsuch asked no questions throughout the entire argument. Gorsuch authored the Court’s 2019 opinion in Bostock v. Clayton County, which held that gay and transgender discrimination counted as a sex-based classification under Title VII, making his silence notable.

The liberal justices pushed back on Tennessee’s arguments that SB1 classifies based on medical treatment, not sex, expressed anxiety over the Court’s possible departure from standard equal protection doctrine, and brought up the negative impact that gender-affirming care bans can have on minors’ physical and mental health.

Read on for a more in-depth summary of the main questions that arose during oral arguments.

Questions About Sex-Based Classifications

As expected, much of the oral argument was devoted to whether SB1 classifies based on sex, which would trigger intermediate scrutiny, send the case back to the lower court, and pressure Tennessee to show how the law furthers an important interest and is narrowly designed.

The challengers argued that SB1 classifies based on sex because it bans medical treatment only when it is inconsistent with one’s sex assigned at birth. United States Solicitor General Elizabeth Prelogar, representing the Biden administration, began oral argument by stating that SB1’s categorical ban is a “facial sex classification, full stop.” Chase Strangio, a transgender attorney representing private plaintiffs, echoed Prelogar’s sentiments, explaining that SB1 draws a sex-based line. Justice Clarence Thomas pushed back, seeing this as an example of age classification, to which Prelogar responded it was both age and sex classification, which still triggers intermediate scrutiny.

But Tennessee Solicitor General Matthew Rice, supporting SB1, repeatedly stated that the law classifies based on medical treatment, not on sex and that the challengers conflate different treatments to find a sex-based distinction. Rice argued that, under SB1, medical treatment for gender dysphoria is not allowed regardless of sex: a boy wanting puberty blockers cannot get it for transitioning but can get it for precocious puberty, hinging on medical treatment, not sex.

But Rice had a hard time explaining his position to Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, who saw the medical treatments themselves as turning on one’s sex. Jackson posed a hypothetical that, under SB1, if two minors wanted to use hormone therapy for treatment to deepen their voice, whether they could get the treatment would depend on their sex. After tense back and forth, Rice responded that a boy could receive treatment to deepen his voice, but a girl could not if treatment was inconsistent with her sex. Kagan interjected that this meant the treatment was related to sex. Rice disagreed, saying “inconsistent with sex” categorizes medical purpose but does not draw a sex-based line.

Kagan also looked to one of the underlying purposes of SB1, to “encourage minors to appreciate their sex,” and questioned how this could be about anything other than gender conformity. Rice argued that the statute just tries to give minors time to appreciate their sex before making irreversible choices and seeking treatments.

Questions About Transgender Discrimination

Some justices also considered whether this case should be regarded as an instance of transgender discrimination, not sex discrimination. In response to a question from Kagan about the differences between sex and transgender-based discrimination, Prelogar said SB1 could be thought of as transgender discrimination that triggers a sex classification but that viewing it as sex discrimination was an easier and clearer path for the Court.

Justices also grappled with whether or not being transgender could be considered a “quasi-suspect class” that would make it count as a protected class under equal protection, like sex and race. The Court has not identified a new suspect class in over four decades.

One requirement of a quasi-suspect class is having a history of public discrimination. In response to Justice Amy Coney Barrett questioning whether there was such a history for transgender people, Strangio, the first openly transgender person to argue before the Supreme Court, explained that transgender discrimination was often mixed into anti-gay legislation and pointed to cross-dressing prohibitions and military service bans. Another requirement of a quasi-suspect class is being tied to immutable characteristics that cannot change. When Justice Sam Alito asked whether transgender status was truly immutable since people could be gender-fluid, Strangio argued it is always immutable because it involves continued inconsistency with one’s sex assigned at birth.

Justice Brett Kavanaugh also repeatedly questioned how a decision in this case would impact laws excluding transgender athletes from sports. The challengers both tried to assuage Kavanaugh’s concerns by saying a ban on athletes could potentially be upheld under intermediate scrutiny even if SB1 could not because it would involve completely different purposes and interests.

Questions About Constitutionalizing or Deferring to Legislatures

Several conservative justices expressed concern about making a constitutional decision about gender-affirming care since it is a relatively new area, with Chief Justice John Roberts and Kavanaugh asking why the Court should not leave these decisions to legislative bodies and states. Both challengers clarified that they do not think states should never be able to make laws prohibiting gender-affirming care for minors, but just that these laws must be able to survive intermediate scrutiny review because they classify based on sex.

Kavanaugh asserted multiple times that “the Constitution doesn’t take sides” on how to resolve the medical and policy debates and questioned why it is the Court’s responsibility to get involved. Prelogar responded that “the Constitution takes a position that individuals are entitled to equal protection of the law” but that the Court could make a narrow decision here to avoid moving too fast.

In a similar vein, Barrett asked Strangio whether the Court has made similar decisions in a medical context. Strangio pointed to COVID-19 cases where the Court held that states had the power to make laws within new medical contexts but were still subjected to heightened scrutiny if the COVID laws classified based on a protected class.

Alito expressed concern that applying intermediate scrutiny would lead to “endless litigation,” but Strangio pointed out that a recent West Virginia law that would pass intermediate scrutiny has led to no litigation. Prelogar made a similar point in response to a question from Kagan, saying that many state laws could be saved if states made sure the laws were not over or underinclusive.

At the end of Stragio’s argument, Jackson stated she was “suddenly quite worried” as she listened to her fellow justices questioning the role of the Court in this scenario. Jackson maintained that a “bedrock” component of equal protection was that a constitutional question is raised anytime a legislature is drawing lines based on a suspect class, drawing parallels between this case and Loving v. Virginia, which struck down bans on interracial marriage. Strangio agreed, stating that is “precisely why we think heightened scrutiny applies.”

Questions About Risks

The challengers maintained the risks of gender-affirming care, including infertility, were slight and outweighed by the benefits, whereas Rice opened his argument by claiming SB1 protects minors from “risky, unproven medical interventions” that have lifelong consequences.

Alito cited a European study that found a lack of evidence that the benefits of this treatment outweigh the risks, but Prelogar pointed out that none of the countries in the study responded to this data with a categorical ban like SB1. Justices also expressed concern about minors who would regret treatment and de-transition. Strangio clarified that the record showed a 1% regret rate when people received gender-affirming treatment after the onset of puberty and affirmed that laws with proper safeguards could help with regret. Rice said laws with these safeguards are “pure policymaking” that does not eliminate the risk of de-transitioning, but Sotomayor interjected to point out that there is always some harm in medical treatments.

The issue of parental rights is not before the Court in this case, but Kavanaugh and Barrett seemed keen to assure that parents would have other avenues of legal arguments if SB1 was upheld. Prelogar conceded that parents would have alternative methods, but she and Strangio both argued that categorical bans with no room for parental input are still problematic under equal protection. Rice, on the other hand, explained how states have historically had to bypass parental rights to intervene in risky medical treatments, such as eugenics or lobotomies.

Sotomayor asked whether a win for Tennessee could open up the ability for states to block treatment for adults, as well as minors. Rice responded that a law about adults would have to pass rational review and be left to the democratic process. Sotomayor responded that for transgender people, who make up one percent of the population, it’s “very hard to see how the democratic process is going to protect [them].”

The Court should issue a decision in this case by summer.

Read a transcript of the oral argument here.

Listen to an audio recording of the oral argument here.