United States v. Skrmetti

LII note: The U.S Supreme Court has now decided United States v. Skrmetti

Issues

Does banning gender-affirming care for minors violate the equal protection clause of the 14th Amendment?

Oral argument:
December 04, 2024
Court below:
United States Court of Appeals for the Sixth Circuit

This case asks the Supreme Court to determine the extent to which the 14 th Amendment’s Equal Protection Clause applies to gender-affirming healthcare for transgender minors. Tennessee’s Senate Bill 1 prohibits medical treatments intended to alleviate gender dysphoria or initiate gender transition for minors. The United States argues that the Bill violates the Equal Protection Clause by withholding medical care on the basis of a patient’s sex, or alternatively, that the Bill discriminates against a quasi-suspect classification: transgender status. Skrmetti contends that the Bill applies equally to Tennessee youth regardless of gender, that it is not motivated by discriminatory intent, and that transgender status does not meet the quasi-suspect class characteristics of being discrete, insular, immutable, and politically powerless. The case will have powerful implications for future state policies regarding healthcare and transgender care, especially for minors, in the continuing social and political conflict over LGBTQ+ rights.

Questions as Framed for the Court by the Parties

Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause of the 14th Amendment.

Facts

On March 2, 2023, Tennessee passed Senate Bill 1, which went into effect on July 1, 2023. The law prohibited minors in Tennessee from receiving gender-affirming care for gender dysphoria or enabling minors to live with a gender identity inconsistent with their sex assigned at birth. Minors already receiving such care were permitted to continue receiving it until March 31, 2024, if their physicians affirmed in writing that discontinuing such care would harm the minors. There were also exceptions for treating certain conditions, but not gender dysphoria or any psychological conditions. Kentucky passed a similar law on March 29, 2023, restricting the use of puberty blockers, hormone therapy, and certain surgeries. Like the Tennessee law, the Kentucky law allowed minors to receive the restricted treatments for conditions such as precocious puberty or injury, but not for conditions such as gender dysphoria.

L.W. et al. (collectively, “L.W.”) are a collection of transgender minors, their parents, and a doctor who provides gender-affirming treatment for gender dysphoria. All but one of the minors is currently receiving puberty blockers, and many are receiving hormone therapy. The remaining minor is nine years old but anticipates requiring puberty blockers soon. The minors and their parents report greater confidence, less emotional distress, and less suicidality due to these treatments, and fear that enforcement of the laws would be damaging to their wellbeing. Tennessee and Kentucky, represented by Tennessee Attorney General Skrmetti, are two states which wish to regulate treatments for gender dysphoria in minors. They express hesitation about the irreversibility, efficacy, and potential for side effects from these procedures.

The minors sued in their respective states. In both states, the minors sought an injunction to prevent the enforcement of the new laws and argued that the laws violated the Due Process Clause and Equal Protection Clause of the Constitution. Both courts ruled that the laws of their respective states were unconstitutional and issued statewide injunctions against enforcement. . The district court’s reasoned that the laws discriminated on the basis of sex and infringed on a parent’s fundamental right to obtain medical treatment for their children. Both states appealed to the Sixth Circuit , which consolidated the cases and reversed the preliminary injunctions , then remanded the cases to the lower courts. The Sixth Circuit reasoned that the state laws treated similarly situated individuals evenhandedly; thus, surviving an Equal Protection challenge. Similarly, the Sixth Circuit held that the Due Process Clause was silent on the government’s regulation of the medical field. The United States intervened on the side of L.W. and petitioned for certiorari. The Supreme Court granted certiorari for the Equal Protection claims on June 24, 2024.

Analysis

SEX DISCRIMINATION

Skrmetti argues that the laws in question do not trigger intermediate scrutiny due to sex discrimination because the classifications are not based on sex. Skrmetti claims that this is not a case in which similarly situated minors are treated differently on the basis of sex, but that the distinction is between adults and minors, and between minors seeking treatments for different purposes. These distinctions, he reasons, are legally permissible because age is not a suspect classification , and states may classify procedures as permissible for some purposes and unsafe for others. Skrmetti raises the example of morphine, which may be legally used to alleviate pain but not to assist with suicide. Further, Skrmetti states that, even if the laws might be seen to restrict gender non-conforming behavior, there is no sex-based classification because the statute does not prohibit, for example, girls from receiving medically necessary testosterone. Thus, he argues, the law prohibits both boys and girls from using hormone therapy for the purpose of gender transition. Skrmetti states that male and female minors seek testosterone for different purposes: transitioning in one case and treating physical abnormalities in the other, so the minors are not similarly situated.

The United States, joining L.W. et al. (the “U.S.”), disagrees, arguing that the laws in question do trigger intermediate scrutiny, as they classify minors based on sex by defining prohibited medical treatments according to the minor’s sex assigned at birth. The U.S. argues that, because a minor assigned female at birth could receive puberty blockers and estrogen to live and present as female but a minor assigned male at birth could not receive the same treatments, the laws classify based on sex. The U.S. disputes that preventing transition-related care for all minors is gender-neutral because it claims that all sex-based classifications should be considered with intermediate scrutiny for the purpose of determining whether the classification is appropriate. Furthermore, the U.S. argues that discrimination based on transgender status is inherently discrimination based on sex because it treats differently those assigned male at birth as opposed to those assigned female at birth. That the same number of treatments are prohibited to members of each sex assigned at birth is irrelevant to the U.S, because it sees the classification itself as requiring intermediate scrutiny, which the Sixth Circuit declined to apply.

TRANSGENDER STATUS AS A QUASI-SUSPECT CLASS

Skrmetti argues that the laws should not be subject to intermediate scrutiny for targeting a quasi-suspect class, both because transgender status or gender identity does not meet the standards for quasi-suspect class and because the laws do not discriminate based on transgender status or gender identity. First, Skrmetti asserts that the laws are based on medical purposes rather than transgender status because transgender minors can receive puberty blockers for precocious puberty, for example, but not for transition. Skrmetti acknowledges that only transgender minors will have their healthcare prohibited under the laws but argues that mere disparate impact does not render a statute unconstitutional unless the regulation serves as a pretext for invidious discrimination . The standard for determining whether a classification is pretextual, Skrmetti argues, should be proving that there is no rational, nondiscriminatory reason that a law might classify people in such a way. Skrmetti submits that because the relevant laws were passed out of concern for protecting children from healthcare they might regret, the laws do not use pretext to discriminate against transgender minors.

Even if the laws did target transgender minors, Skrmetti posits that transgender status should not be a classification subject to intermediate scrutiny because it does not meet the required elements of being a discrete group defined by its immutable characteristics, which is politically powerless and has a history of being discriminated against. Skrmetti argues that because transgender identity encompasses a variety of sometimes-fluid gender identities and expressions, transgender people do not form a discrete group defined by immutable characteristics. Skrmetti also states that transgender people are not politically powerless because the president has appointed LGBTQ+ individuals to federal positions and that federal agencies have written regulations for the purpose of protecting transgender individuals. Finally, Skrmetti claims that there is no history of discrimination against transgender people because the court previously declined to extend quasi-suspect status to the classification of mental disability in Cleburne, despite the history of serious discrimination against mentally disabled people. Because the laws fail to trigger intermediate scrutiny, Skrmetti concludes that the laws ought to be examined only under rational basis review , which requires only that legal  classifications are rationally related to a legitimate government interest, a standard which Skrmetti asserts is met by the states’ desire to prevent minors from becoming “disdainful of their sex” and protecting minors from healthcare it deems risky. Because legislatures have discretion to legislate when there is a lack of medical or scientific consensus, Skrmetti maintains that the laws in question are legitimate and warns that the Court should not take a side on healthcare for transgender minors. Overall, Skrmetti claims that the states have a legitimate interest in protecting adolescents from treatments the legislature considers to be more risky than beneficial.

The U.S. argues that transgender people are a quasi-suspect class because they form a minority group with distinguishing characteristics, they lack significant political power, and their defining characteristics are unrelated to their ability to contribute to society. The immutable characteristic in question, the U.S. states, is having a gender identity that does not align with one’s sex assigned at birth, and the U.S. argues they are a minority because about one percent of the population is transgender. The U.S. disputes that immutability is a requirement to identify a quasi-suspect class, stating that alienage is a suspect classification, though people can become American citizens. The U.S. asserts that transgender status bears no relationship with an individual’s ability to contribute to society yet has proven to be the subject of discrimination in all areas of society. Finally, the U.S. argues that transgender people’s lack of political power can be seen in their underrepresentation in government, and in anti-trans legislation passed recently by many states. The U.S. asserts that just because some transgender individuals have greater power in society does not mean that transgender individuals as a class have political power, drawing parallels to the position of women in society when sex-based classifications were recognized as triggering intermediate scrutiny.

The U.S. insists that the laws in question cannot survive intermediate scrutiny, as they do not support important governmental objectives, and their discriminatory classifications are substantially related to the achievement of those objectives. The U.S. finds unconvincing Skrmetti’s justifications for the law: encouraging minors to appreciate their sex assigned at birth and protecting the health of minors by prohibiting potentially risky treatments. The first objective, the U.S. asserts, is indistinguishable from discouraging people from being transgender, which the U.S. argues could never be recognized as an important governmental interest because it illegitimately relies on stereotypical ideas about sex and gender.

The U.S. acknowledges that protecting the health and welfare of minors is a legitimate goal but asserts that the laws in question fail to protect minors’ wellbeing because Skrmetti failed to reasonably weigh the risks and benefits of the banned treatments. The U.S. maintains that the prohibited treatments are beneficial and necessary for many minors, yet the U.S. points out that Skrmetti failed to discuss the potential benefits of the treatments when determining whether the laws in question protect minors’ wellbeing. Citing studies that show reduced rates of suicide in transgender adolescents receiving gender-affirming care, the U.S. asserts that Skrmetti could not have fully considered minors’ wellbeing because it did not consider the benefits of the prohibited treatments. Therefore the U.S. asserts that the laws fail to meet the burden of intermediate scrutiny.

Discussion

PUBLIC HEALTH

The American Academy of Pediatrics , joined by other medical organizations (“AAP”), in support of the U.S., argues gender dysphoria treatment results in positive health outcomes, such as lessened anxiety, depression, and suicide risk, in transgender youth receiving gender-affirming care. The AAP adds that if the court accepts the reasons behind the law, it could irreparably harm transgender youth by denying them beneficial healthcare.

The Giffords Law Center to Prevent Gun Violence , with other gun violence-prevention groups (“Giffords Law Center”), in support of the U.S., adds that when laws like Tennessee’s are upheld, transgender youth are more likely to fall victim to gun violence. Giffords Law Center argues that this is due to both anti-transgender violence being exacerbated by anti-transgender legislation, and because of the higher risk of gun suicide among transgender youth unable to access gender-affirming care.

The Family Research Council , in support of Skrmetti, argues that the U.S.’s guidelines in support of gender-affirming care are politically motivated and only represent one side of the healthcare debate. The American College of Pediatricians , alongside other advocacy organizations (“ACP”), in support of Skrmetti, contends that transition surgery and hormone therapies are not effective treatments for gender dysphoria, as they cause permanent physical and mental health complications. On the other hand, the ACP argues, mental health counseling for underlying mental health conditions (such as depression or anxiety) is the proper standard of care for gender dysphoria.

The ACP adds that banning gender-affirming care does not lower the risk of suicide for transgender youth. The ACP argues that 90% of transgender youth who commit suicide were diagnosed with pre-existing mental disorders, and that gender-affirming care may increase, rather than decrease, risk of suicide.

HEALTHCARE DECISION-MAKING

Family and constitutional law scholars (collectively, “Scholars”), in support of the U.S., argue that upholding the laws would diminish parental rights to manage their children’s healthcare. The Scholars assert that parents are in a better position than government officials to determine whether to provide gender-affirming healthcare to their children, but these choices are stifled by the law. If laws such as Tennessee’s are upheld, the Scholars continue, parents could be forced to relocate in order to make healthcare decisions for their children.

Conservative officials, advisors, and activists (“Conservatives”), in support of the U.S., contend that a decision for Skrmetti will enable states to trample parental rights. The Conservatives continue that, under Tennessee’s arguments, states on the other side of the political divide could pass laws providing for transgender care without parental consent. The Conservatives argue that upholding the laws could enable states to overrule parental decisions on everything from diet to sports based on politics.

The Detransitioners Community (“Detransitioners”), in support of Skrmetti, counter that regarding medical procedures, states are better placed to represent minors’ interests than parents. The Detransitioners argue upholding the laws would keep transgender care in line with other medical care since a state’s police power is already used to regulate procedures such as abortions and assisted suicides. On the other hand, assert the Detransitioners, if the court struck down the legislation, it may allow parents to consent to permanent medical procedures on behalf of their child which the child may later regret.

Kentucky, joined by 21 other states (“Kentucky”), in support of Skrmetti, adds that a decision for the laws will uphold states’ ability to be democratic fora for the discussion of difficult issues. If the court rules for the U.S., continues Kentucky, it will have taken policymaking out of the states’ hands and left it to the courts, rather than allowing public debate to develop, and for each state to decide its own policies.

Conclusion

Written by:

Sasha Prakir

Samantha Wood

Edited by:

Rodrigo F. Tojo Garcia

Acknowledgments

The authors would like to thank Professors Deborah Dinner and Sheri Lynn Johnson for their insights into this case.

Additional Resources