Rule of 3 #1: All About United States v. Skrmetti

What you need to know about the recent arguments.

Overview

Case description: This case concerns a Tennessee law that bans medical treatments for gender dysphoria in transgender adolescents, prohibiting them based on the minor's sex and gender identity. The law has been challenged on the grounds that it discriminates based on sex and transgender status, and its validity is contested amid a wave of similar bans in other states, creating legal uncertainty for transgender adolescents and their families.

Question before the Court: Whether Tennessee Senate Bill 1 (SB1), which categorically 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,” Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment.

Takeaways from Oral Argument

Attorneys

CHASE B. STRANGIO: Respondents supporting Petitioner [against TN law]

1. SB1's Sex-Based Discrimination: SB1 discriminates based on sex by banning medical treatments that enable adolescents to live in a manner inconsistent with their birth sex. This sex-based classification requires heightened scrutiny, as the law denies treatments that have previously alleviated suffering for transgender adolescents.

2. Lack of Justification for the Ban: Tennessee has not provided sufficient evidence to justify SB1’s categorical ban on medically recommended treatments like puberty blockers, which have been shown to improve mental health outcomes and have low regret rates. The state’s reliance on outdated studies and misleading data fails to meet the burden of proof required under heightened scrutiny.

3. Judicial Oversight of Suspect Classifications: Courts play a critical role in evaluating laws targeting suspect classifications. SB1 bypasses standard regulatory measures like informed consent, undermining parental and medical judgment without adequately addressing any demonstrated harm, as confirmed by the district court.

ELIZABETH B. PRELOGAR: Petitioner [against TN law]

1. Life-Saving Medical Necessity: Prelogar emphasizes that access to gender-affirming medications, obtained through a careful consultation process involving doctors and parents, is critical for the well-being and mental health of transgender adolescents. As an example, she explains how Ryan's ability to receive these treatments has been life-saving, enabling him to thrive.

2. Harm Caused by the Law: The Tennessee law banning these medications categorically denies transgender adolescents like Ryan access to necessary medical care. Prelogar argues that this law directly harms their health and well-being, contradicting the State’s claim of protecting adolescent health.

3. Sex-Based Discrimination and Legal Standards: Prelogar contends that the law discriminates against individuals based on their birth sex, creating a sex-based classification that fails to meet even the low threshold of rational basis review under constitutional scrutiny. She argues that the State’s actions are unjustifiable on these legal grounds.

J. MATTHEW RICE: Respondent [supporting TN law]

1. Medical Purpose, Not Sex Discrimination: The law distinguishes medical treatments based on their purpose, not the patient's sex. Rice argues that using drugs like hormones and puberty blockers for treating medical conditions is different from using them for psychological distress associated with transitioning, and this distinction does not constitute sex-based discrimination.

2. Legislative Authority and Medical Uncertainty: Rice emphasizes that the law reflects the views of democratically elected lawmakers who, unlike judges, are best suited to assess the evolving medical issues surrounding treatments for minors. They argue that the law takes into account the uncertainty and irreversible consequences of certain medical interventions, with evidence from other countries and states showing caution around these treatments.

3. Fundamentally Different Medical Treatments: Rice argues that the law treats different medical treatments differently. They distinguish between using puberty blockers for conditions like precocious puberty versus using them for gender transitions. Rice contends that these are not the same treatments, as they affect the body differently and are used for different medical purposes.

Justices’ Interests

Alito

1. Medical Evidence on Gender-Affirming Treatment: Alito questions the evidence supporting the benefits of gender-affirming treatments, particularly puberty blockers and hormones, for transgender minors. They challenge the claim that these treatments significantly improve the physical and psychological well-being of adolescents, citing reports from Sweden and the UK that express concerns over the risks outweighing the benefits. Alito also references a lack of high-quality evidence from the UK’s Cass report.

2. Equal Protection and Legal Precedents: Alito questions the application of the Equal Protection Clause and references legal precedents like Bostock, Geduldig, and Dobbs to challenge the argument that discrimination based on transgender status is equivalent to sex-based discrimination. They ask whether gender-affirming treatments are subject to equal protection standards or whether the decision should be based on medical and procedural concerns that differ by sex.

3. Classification of Transgender Status: Alito explores whether transgender status should be considered a quasi-suspect classification, questioning the immutability of transgender identity. They challenge whether the fluidity of gender identity should affect its classification under the law, comparing it to other classifications like disability (schizophrenia), which are not considered suspect or quasi-suspect under legal standards.

Barrett

1. Discriminatory Intent and Equal Burden: Barrett explores whether laws prohibiting access to gender-affirming medications or procedures could be viewed as intentional discrimination, particularly focusing on how such laws treat boys and girls equally (by denying both access to these drugs) and the potential for stereotyping based on biological sex and gender norms. This question connects to whether this constitutes discriminatory intent under the Equal Protection Clause.

2. Transgender Status as a Suspect Class: Barrett delves into the issue of whether transgender people should be classified as a suspect class under the Equal Protection Clause, specifically questioning the lack of a historical record of de jure discrimination against transgender people. Barrett compares this potential categorization to other suspect classes like race or gender, which have clear histories of de jure discrimination.

3. Parental Rights and the Impact on Other Legal Claims: Barrett asks about the separation of the current case's resolution from parental rights claims, specifically if a decision regarding gender-affirming care would affect parents’ substantive due process rights to make decisions for their children, implying that such a decision might not impact future claims regarding parental rights.

Jackson

1. Classification and Scrutiny: Jackson highlights the central issue of how the statute is being characterized—whether it is a sex-based classification or one based on age and purpose. She suggests that both classifications could be in play, and the key question for equal protection analysis is whether the statute draws a sex-based line, which would trigger heightened scrutiny in evaluating its constitutionality.

2. Comparison to Loving v. Virginia: Jackson draws a parallel between this case and Loving v. Virginia, where racial classifications in marriage laws were scrutinized. She expresses concern about whether the Court is properly applying equal protection principles, noting that in Loving, the Court recognized that a law could still be discriminatory even if it applied to both races. Jackson is concerned that the Court might allow legislative classifications based on sex to be justified without fully considering whether the law discriminates.

3. Medical Purpose and Biological Sex: Jackson further discusses the statute's distinction based on biological sex in the context of medical treatments. She examines hypothetical situations where a person’s medical need (e.g., hormone treatment for voice deepening) might be affected by their sex, and she questions whether the law's restriction on certain treatments, based on sex, constitutes a sex-based classification under the Equal Protection Clause. She challenges the notion that a law could differentiate between treatment purposes when the effect on the body might be similar, and stresses the importance of applying heightened scrutiny to such laws.

Kagan

1. Sex-Based Classification vs. Transgender Status: Kagan questions whether the law should be viewed as a sex-based classification or one that discriminates against transgender individuals, suggesting that the law targets transgender status, which is intertwined with sex.

2. Underinclusion and Heightened Scrutiny: She discusses how the law's differential treatment of transgender minors (compared to cisgender minors) likely violates heightened scrutiny standards, particularly since no sufficient medical evidence has been provided to justify such underinclusion.

3. Encouragement of Gender Conformity: Kagan critiques the law's purpose of encouraging gender conformity, arguing that it reflects a negative view of gender non-conformity, particularly targeting transgender youth and suggesting that they are "wrong" for transitioning.

Kavanaugh

1. Role of the Court and Democratic Process: Kavanaugh emphasizes that the Constitution doesn't take sides in policy debates, such as the decision to allow medical treatments for transgender minors. He questions whether it is best for the Court to step in, given that there are strong arguments on both sides and suggests that this might be better left to the democratic process, where states can make their own policy decisions.

2. Balancing Risks and Benefits: Kavanaugh acknowledges that both sides of the debate present risks: some minors will suffer if they can't access treatments, while others may regret undergoing treatments and want to detransition. He suggests that the Court must weigh these risks, which is a difficult policy decision. He asks why it is the Court’s role to make this decision when it seems like a choice better suited for policymakers.

3. Impact on Transgender Participation in Women's Sports: Kavanaugh raises concerns about how intermediate scrutiny could affect the issue of transgender athletes in women's sports. He questions whether it is possible to apply intermediate scrutiny to cases involving transgender rights while allowing laws that restrict transgender athletes in women's sports. This brings attention to potential broader constitutional implications, particularly related to fairness in competitive sports.

Roberts

1. Legislative Deference: Justice Roberts suggests that the issues involved, particularly medical and evolving standards, may be better addressed by legislative bodies rather than the Court. He emphasizes that courts may not be well-suited to make decisions on complex medical matters, such as those involving predictive judgments and the effects of medical treatments, which are more appropriate for legislative determination.

2. Medical Expertise vs. Legal Judgment: Roberts distinguishes the case from past rulings (like Morales-Santana and Craig v. Boren), noting that those cases involved more straightforward issues like gender distinctions or drinking age laws, which did not heavily involve medical considerations. He points out that the current case involves medical expertise, making it more complex and better suited for legislative deliberation.

3. Constitutional Allocation of Authority: Roberts raises concerns about the Court stepping into an evolving medical issue where expertise is lacking, highlighting that the Constitution typically leaves such decisions to the elected representatives of the people, not to the judiciary. He cautions against judicial intervention in areas where the situation is dynamic and not yet fully understood.

Sotomayor

1. Gender Differences and Medical Needs: Justice Sotomayor emphasizes that there are inherent differences between sexes, and that intermediate scrutiny should be applied to ensure that laws are not based on instinctual or prejudiced judgments. She argues that there are children who suffer significantly from gender dysphoria and need medical treatment, and that the purpose of heightened scrutiny is to protect vulnerable groups from unnecessary harm when medical treatments are involved.

2. Judicial Review of Medical Decisions: Sotomayor challenges the idea that courts are not suited to address complex medical issues, pointing out that the court has the fundamental role of ensuring that any legislation or government action, especially regarding medical treatments, meets constitutional standards. She also questions whether policymakers should be allowed to make decisions on the lives of individuals without proper review, particularly when the consequences of those decisions can have severe effects on a small and vulnerable population.

3. Sex-Based Distinctions in Medical Treatment: Justice Sotomayor raises concerns about the sex-based distinctions in the medical treatments, pointing out that if a medical condition is the same (such as unwanted hair or breasts), there should not be different access to treatment based solely on sex. She suggests that such distinctions are rooted in sex-based differences and should be subject to scrutiny to avoid discrimination.

Thomas

1. Age Classification vs. a Ban: Justice Thomas challenges the argument that the case is about a complete ban on medical treatments. Instead, he frames it as an issue of age classification, questioning why the case is framed as a ban when it is focused on minors, and whether the restriction is more about the age of the individual rather than an outright prohibition.

2. Sex-Based Differences in Medical Treatment: Thomas questions whether there is a physiological difference in the way testosterone and estrogen affect males and females, suggesting that there might be significant differences in how these hormones are processed depending on sex. He emphasizes the importance of understanding these differences in the context of medical treatments.

3. Equal Protection and Remedy: Justice Thomas probes the remedy being sought in this case, asking whether the petitioner is seeking different treatment based on sex. He compares the case to other equal protection cases, like Boren, in which different groups received different benefits, questioning what remedy would arise in this case based on sex-based distinctions in medical treatment.

Gorsuch: Did not speak

Lower Court's Decision

The court reversed the preliminary injunctions that had been issued by the lower courts and remanded the cases for further proceedings. The injunctions had blocked the enforcement of laws in Tennessee and Kentucky that restricted gender-affirming treatments for minors. The court found that the district courts had abused their discretion by granting such broad injunctions without sufficient justification.

Three Main Points in the Decision

1. Standing and Redressability: The court raised concerns about the plaintiffs' standing, particularly whether the relief they sought could address their injuries, focusing on whether future treatments would be available and whether the plaintiffs had sufficiently demonstrated how statewide relief was necessary.

2. Abuse of Discretion: The court concluded that the district courts had abused their discretion by granting such broad relief without properly explaining why such an injunction was necessary, especially considering that a more targeted class action could have addressed the issues.

3. Public Interest and Harm: The court noted that the harm to the states, Tennessee and Kentucky, if the injunction remained in place, was significant, particularly with regard to their ability to enforce laws passed by their elected representatives to protect minors. The balance of harm favored the states' interests in limiting treatments for minors under these laws.

Notes on Amici

NAACP (for Petitioner)

The NAACP's argument focuses on the discriminatory nature of Tennessee's law banning gender-affirming healthcare for transgender adolescents, asserting that it constitutes a sex-based classification subject to heightened scrutiny. They argue that the law's passage is rooted in animus and prejudice against transgender people, particularly transgender youth, and that it cannot be considered constitutionally valid under the Equal Protection Clause, given the broader context of rising hostility toward LGBTQ individuals.

America First Legal Foundation (For Respondent)

AFLF’s argument is that the plaintiffs failed to demonstrate standing, particularly the redressability of their injuries, which is necessary for obtaining a preliminary injunction. The court argues that the plaintiffs cannot show that their requested relief would directly address the issue since the private lawsuits allowed under the law would still expose providers to liability.