The Supreme Court’s Anti-Transgender Ruling Is a Tortured Mess

While the court’s ruling was not as immediately disastrous as it might have been, it sets the stage for a parade of horribles in the years to come.

by Matt Ford

Kevin Dietsch/Getty Images

The Supreme Court upheld a Tennessee law that banned gender-affirming treatments for minors on Wednesday, giving states a free hand to restrict access to puberty blockers and hormone therapies for young transgender Americans.

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.”

It is fitting that Roberts wrote the majority opinion in United States v. Skrmetti because it is representative of his court’s slipshod approach to major, high-profile cases. The Supreme Court’s conservative majority effectively engineered a landmark case on transgender rights in which no transgender person is a named litigant, reducing them and their interests to an easily ignored abstraction. The result is tortured reasoning, misapplied precedents, and a transparently outcome-oriented ruling.

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 ruling, on its own terms, drew sharp criticism from the court’s three liberal justices. In her dissent, Justice Sonia Sotomayor castigated the majority for what she saw as a blow to sex-based discrimination protections in general—and for the impact it would have on transgender Americans across the country. “By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims,” she wrote. “In sadness, I dissent.”

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.

Major medical associations, including the American Medical Association and the American Academy of Pediatrics, have endorsed gender-affirming treatments for young people for transgender youth, citing high rates of suicidial ideation, self-harm, and other destructive behaviors if left untreated. To that end, a group of transgender children, their families, and their medical providers sued the state shortly after the law was passed, arguing among other things that it violated the Fourteenth Amendment’s equal protection clause. (The Biden administration also sued Tennessee over S.B. 1, giving the combined case its current title.)

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 equal protection clause, which was ratified as part of the Fourteenth Amendment in 1869, declared that “no state” shall “deny to any person within its jurisdiction the equal protection of the laws.” Starting in the mid-twentieth century, the Supreme Court began to hold that when the government discriminates against certain groups of people, those laws and policies must meet a higher legal threshold to survive judicial scrutiny.

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.

Beyond those categories, the courts have been reluctant to expand the equal protection clause to cover additional suspect classifications. The Supreme Court has refused outright to cover groups on the basis of poverty, age, and other amorphous categories within this framework. And while the court has struck down multiple laws that discriminate against gay and lesbian Americans on equal protection grounds, it has never held that sexual orientation is a suspect classification in and of itself.

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.

“SB1 includes only two classifications: healthcare providers may not administer puberty blockers or hormones to minors (a classification based on age) to treat gender dysphoria, gender identity disorder, or gender incongruence (a classification based on medical use),” he wrote. “The plaintiffs do not argue that the first classification turns on transgender status, and our case law forecloses any such argument as to the second.”

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.

Applying this precedent required no small amount of mental gymnastics on Roberts’s part. He effectively argued that the Tennessee law just happened to primarily affect transgender people, as if it was not the law’s goal. “Although only transgender individuals seek treatment for gender dysphoria, gender identity disorder, and gender incongruence—just as only biological women can become pregnant—there is a ‘lack of identity’ between transgender status and the excluded medical diagnoses,” he wrote.

“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.

Why the twisted reasoning? While the court’s decision fell along its usual ideological lines, there were also important divisions among the conservative justices. Three of them—Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett—said that they would have gone even further. Barrett, in a concurring opinion joined by Thomas, wrote that she would have held outright that “transgender status” is not a suspect classification.

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.

A final prong is whether the group has historically experienced discrimination. The equal protection clause is typically more protective when a minority group is unable to remedy its problems through the democratic process. Here too, Barrett argued, transgender Americans fall short on proving de jure discrimination. “Because the group of transgender individuals is an insufficiently discrete and insular minority, the question is largely academic,” she explained.

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.’”

Roberts, as well as Justices Neil Gorsuch and Brett Kavanaugh, apparently weren’t willing to go that far. The decision and its reasoning appear to be driven by internal compromise, one that would uphold the Tennessee law while leaving the suspect-classification question for a future case. That divide roughly mirrors the one in the 2020 case Bostock v. Clayton County, where Gorsuch and Roberts joined with the court’s liberals to hold that Title VII of the Civil Rights Act of 1964’s ban on sex-based discrimination in the workplace also protects gay and transgender workers.

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.

But most of her frustration was aimed at the court’s drive-by damage to sex-based discrimination precedents. Sotomayor warned that the court had effectively weakened them by reinterpreting them for this outcome. “The Court’s willingness to do so here does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight,” she warned. “It also authorizes, without second thought, untold harm to transgender children and the parents and families who love them.”

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.

There was little hope that the Supreme Court’s conservative majority would deliver a sweeping ruling in favor of transgender rights, even after the victory in Bostock five years ago. As I noted last year, the justices watered down the litigants’ arguments by only taking up the petition from the federal government, effectively removing the families from the focus of the case. Wednesday’s ruling was not as disastrous for transgender rights as it could have been, but its full impact on the court’s equal protection precedents will take years to unfold.

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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