Chief Justice John Roberts, who wrote for the court, rejected a Fourteenth Amendment challenge that had been brought against the law. “This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field,” he wrote. “The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements.”
Skrmetti was expected to be a landmark ruling on whether transgender Americans, as a group, could receive a heightened level of judicial protection under the equal protection clause. Instead, the justices upheld the statute on narrower grounds by holding that it did not discriminate on the basis of sex or gender identity at all.
The dispute centered on Tennessee Senate Bill 1, which was enacted in 2023 as part of a Republican-led legislative pushback against transgender Americans in general. The law bans doctors in Tennessee from approving prescriptions or surgeries that “[enable] a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or “[treat] purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Puberty blockers and hormones are specifically targeted by the statute.
The constitutional argument took two forms. On one hand, the plaintiffs argued that the law amounted to sex-based discrimination because it targeted transgender youth who sought treatment for gender dysphoria. Alternatively, they argued that transgender Americans were collectively entitled to heightened protections under the clause’s modern judicial framework.
The high court has previously held, for example, that race, religion, and national origin are what are known as “suspect classifications,” meaning that courts will apply strict scrutiny when the government discriminates along those lines. (This term does not mean that the group itself is “suspect” but that targeting them by law is.) Strict scrutiny is the judiciary’s most stringent test; laws and policies almost never survive it. The courts have also held that sex is a quasi-suspect classification, meaning that when the government treats men and women differently, it must justify its actions on exceptional grounds—but not near-fatal ones, as with strict scrutiny.
Here is where the majority opinion’s muddled reasoning is on stark display. Roberts went to great lengths to avoid this issue in this case. He instead concluded that the court need not decide the suspect-classification question for transgender Americans in Skrmetti. Instead, he held that the law’s classifications actually fell into two unprotected categories.
The case law that Roberts cited is the court’s 1974 decision in Geduldig v. Aiello, where it held that a California insurance program that didn’t cover certain pregnancy-related disabilities did not discriminate on the basis of sex. In short, the court upheld the program’s rules because they hinged on a medical condition that only one sex could have, not against that sex as a whole. The Geduldig court also held open the possibility that courts need not uphold such distinctions if they were “mere pretexts,” which it said wasn’t the case there.
“The plaintiffs, moreover, have not argued that SB1’s prohibitions are mere pretexts designed to effect an invidious discrimination against transgender individuals,” Roberts added. While it is true that the Justice Department brief does not level such an accusation, the families’ brief states outright that S.B. 1 “was enacted in 2023 as part of a wide-ranging series of laws targeting transgender people in Tennessee.” Rarely is a justice so openly disingenuous about one side’s arguments.
She listed the factors that courts typically use when deciding whether a group should received heightened protections. Is the group defined by “obvious, immutable, or distinguishing characteristics,” for example? No, said Barrett, because transgender people do not experience gender dysphoria at birth and because some of them “detransition” later in life. Nor are they necessarily a “discrete group” because, she claimed, transgender people can have a wide range of gender identities and expressions.
Justice Samuel Alito largely agreed. “Transgender status is not ‘immutable,’ and as a result, persons can and do move into and out of the class,” he wrote in his solo concurring opinion. “Members of the class differ widely among themselves, and it is often difficult for others to determine whether a person is a member of the class. And transgender individuals have not been subjected to a history of discrimination that is comparable to past discrimination against the groups we have classified as suspect or ‘quasi-suspect.’”
Sotomayor, for her part, adopted Bostock’s basic reasoning to the equal protection clause question at hand and said the law amounted to sex-based discrimination. “By depriving adolescents of hormones and puberty blockers only when such treatment is ‘inconsistent with’ a minor’s sex, the law necessarily deprives minors identified as male at birth of the same treatment it tolerates for an adolescent identified as female at birth (and vice versa),” she wrote.
That approach, Sotomayor claimed, would be intolerable in other contexts. “Nearly every discriminatory law is susceptible to a similarly race- or sex-neutral characterization,” she pointed out. “A prohibition on interracial marriage, for example, allows no person to marry someone outside of her race, while allowing persons of any race to marry within their races.” Roberts disputed that reference to Loving v. Virginia, but it was hardly persuasive.
And while the court’s punt on the suspect-classification question is a mild surprise, its freewheeling approach to the case is not. This is the same court that curbed the Environmental Protection Agency’s ability to regulate carbon emissions by overturning a policy that wasn’t in force and never would be. It’s the same court that sided with a high school football coach’s religious freedom claims despite ample evidence that he was misrepresenting what had happened. And it’s the same court that haphazardly laid waste to the Fourteenth Amendment and the separation of powers to clear the way for Donald Trump’s reelection. That sloppiness used to be an exception from the court’s typical practices. Now it’s slowly becoming the rule.
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