Supreme Court Not Sure Why You Thought the Equal Protection Clause Meant Anything
The Supreme Court held today in United States v. Skrmetti that the Equal Protection Clause of the Constitution is no obstacle to laws that deny lifesaving medical care to transgender children. In 2023, Tennessee lawmakers enacted a law that prohibits medical providers from administering hormone therapy to minors, if—and this is a big if—the purpose of the treatment is to help the kid “identify with, or live as, a purported identity inconsistent with the minor’s sex,” or to alleviate “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Doctors who prescribe hormones to kids for other medical reasons can do so. But doctors who try to help trans kids live happily as trans kids are staring down a $25,000 civil penalty per violation.
The text of Tennessee’s law also explicitly aims to encourage minors to “appreciate” and not “become disdainful” of the sex assigned to them at birth. This is a polite way of saying its goal is to stop people from being trans, or, put another way, stop trans people from being.
Under the Fourteenth Amendment, no state may “deny to any person within its jurisdiction the equal protection of the laws.” To any normal person, Tennessee’s law discriminates on the basis of sex, which is literally the determining factor in whether kids can access the relevant medications. Justice Sonia Sotomayor illustrates this in dissent by imagining a hypothetical teen, distressed over unwanted facial hair that makes them appear masculine. “The doctor’s next step depends on the adolescent’s sex,” she explains. “Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl.” In other words, the law straight-up treats kids differently because of their sex.
The Constitution has a problem with all of that, but the conservative supermajority on the Supreme Court does not. In his majority opinion, Chief Justice John Roberts says that Tennessee’s law, which grants or withholds medical treatment based on sex, does not classify on the basis of sex. He says that the law, which expressly aims to force trans kids to conform to their sex assigned at birth, does not classify on the basis of transgender status. He says the law does not contain or conceal any classifications that could warrant a closer look under the Equal Protection Clause. Instead, Roberts insists with italics, the law only “prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses”—two classifications that, he says, do not “turn on sex.”
And to swat away any argument about the explicitly sex-based text of the law, Roberts says that text doesn’t count. “In the medical context, the mere use of sex-based language does not sweep a statute within the reach of heightened scrutiny,” he says. Eliding how that sex-based language was actually used, Roberts decided there’s nothing untoward happening here. Under the Supreme Court’s precedents, he was thus free to subject the law to the lowest standard of review, called “rational basis scrutiny.”
Surprise, it passed: Since Tennessee lawmakers claimed that the law responded to an “ongoing debate among medical experts”—for Roberts, a plausible rational justification—he concluded that the Court should stay out of the matter. “Our role is not to judge the wisdom, fairness, or logic of the law before us, but only to ensure that it does not violate the equal protection guarantee of the Fourteenth Amendment,” he wrote. And since the Court determined it did not, it should “leave questions regarding its policy to the people, their elected representatives, and the democratic process.”
You may recognize this move from Justice Samuel Alito’s opinion in Dobbs v. Jackson Women’s Health Organization rescinding the right to abortion. There, too, the Court contended that it was democratic, actually, for judges to render people unequal under law. Concurring in Skrmetti, Justice Clarence Thomas also sang democracy’s praises but added a verse of antitrans propaganda, calling for judicial deference to “legislatures, not experts,” whom he said have “surreptitiously compromised their medical recommendations to achieve political ends”—a sentence I assume he wrote while wearing a tin foil hat.
You may also recognize the arguments in Skrmetti as the same argument the Court rejected in Loving v. Virginia, the 1967 case that struck down bans on interracial marriage. Then, Virginia insisted there was no equal protection problem because no person could marry outside their race and any person could marry within their race, and the legislature should be free to respond to “scientific” debates about the harms of interracial marriage. Now, Roberts says there is no equal protection problem because “no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence.” Further, he says, “minors of any sex may be administered puberty blockers or hormones for other purposes,” and “scientific uncertainty” underscores “the need for legislative flexibility.” (Free editorial tip: If you repeatedly find yourself relying on italics to do the work that your argument can’t, you might just be talking out of your ass.)
The rehabilitation of these rejected arguments will have grave implications, including, most immediately, endangering the lives of trans kids. Just yesterday, the Trump administration directed the national suicide prevention hotline to stop providing specialized services to LGBTQ youth. And Sotomayor’s dissent points out that untreated gender dysphoria can lead to “severe anxiety, depression, eating disorders, substance abuse, self-harm, and suicidality,” and that “as many as one-third of transgender high school students attempt suicide in any given year.” Today, Roberts and the majority pretended the words of the Constitution don’t mean anything because, to them, the lives of trans kids don’t mean anything.
Madiba K. Dennie is the Deputy Editor and Senior Contributor at Balls & Strikes, and author of The Originalism Trap: How Extremists Stole the Constitution and How We the People Can Take it Back. Her writing has been featured in outlets including The Atlantic and The Washington Post.
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