U.S. v. Skrmetti

Today, the Supreme Court heard oral argument in U.S. v. Skrmetti, a challenge under the Equal Protection Clause to Tennessee Senate Bill 1, which prohibits healthcare providers from performing or administering gender-affirming care to minors while allowing the same treatments for minors who suffer from “congenital defect, precocious puberty, disease, or physical injury.” This is the first case the Court has heard related to a ban on gender-affirming care for people under 18 years old, of which 26 states currently have some form.

What You Need to Know

• Facts of the Case: Since 2021, at least 26 states have banned gender-affirming healthcare for people under 18 years old, despite such healthcare being available and the standard of care for decades. Two states ban best practice surgical care for transgender youth, while the remaining 24 states ban both best practice medication and surgical care for transgender youth. Passed in 2023, Tennessee’s ban applies to both medication and surgical care for transgender youth, characterized by the state as: “(A) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex; or (B) Treating purported discomfort or distress from a discordance between the minor's sex and asserted identity.” The ban creates a private right of action for minors and their parents or next of kin against a healthcare provider who provided gender-affirming care and allows the state attorney general to independently seek civil penalties of $25,000 per violation of the ban. The ban explicitly allows the same treatments to be provided for minors suffering from any other medical conditions for which such treatment, including puberty blockers, hormone therapy, or surgery, is considered the standard of care. Tennessee’s ban states that: “These procedures can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering from adverse and sometimes fatal psychological consequences. Moreover, the legislature finds it likely that not all harmful effects associated with these types of medical procedures when performed on a minor are yet fully known, as many of these procedures, when performed on a minor for such purposes, are experimental in nature and not supported by high-quality, long-term medical studies.” Despite these purported concerns, the state prohibits these treatments only for one use — gender-affirming healthcare. Yet, in an amicus brief filed with the Court, the American Academy of Pediatrics, joined by more than a dozen other medical and mental health organizations, asserted that, “Empirical evidence indicates that gender-affirming care, including the prescription of puberty blockers and hormone therapy . . . can alleviate clinically significant distress and lead to significant improvements in the mental health and overall wellbeing of adolescents with gender dysphoria.”

• Procedural History: In 2023, three transgender minors, their parents, and a doctor sued several Tennessee officials in the U.S. District Court for the Middle District of Tennessee. The U.S. Department of Justice intervened to support the plaintiffs under a federal law that permits the Attorney General to sue to address equal protection violations. The district court judge found that that the ban “discriminates on the basis of sex and that transgender persons constitute a quasi-suspect class” and was therefore “facially unconstitutional,” and issued a preliminary injunction. The U.S. Court of Appeals for the Sixth Circuit overturned the judge’s decision in the case and stayed the injunction, allowing the ban to go into effect. The Supreme Court granted certiorari in June 2024.

• Questions Presented: 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.

• What Happened at Oral Argument: Both U.S. Solicitor General Elizabeth Prelogar, and counsel for the three transgender minors, Co-Director of the ACLU’s LGBT & HIV Project Chase Strangio (whose appearance marked the first time an openly transgender attorney appeared before the U.S. Supreme Court), argued that the Court should find that SB 1 makes a sex-based classification subject to intermediate scrutiny under the Equal Protection Clause, recognize transgender status as a suspect classification entitled to similar heightened scrutiny, or hold that SB 1 does not withstand even rational basis review. Applying heightened scrutiny based on sex or transgender status would require Tennessee (and other states imposing similar bans) to demonstrate that the law furthers an important government interest and that the means are substantially related to that interest. As Prelogar noted, the challenged law would not survive heightened scrutiny in part because it is underinclusive. Despite the state’s claim that puberty blockers and hormone treatments are too dangerous to adolescent health, those treatments are allowed for all medical purposes except when a minor seeks to affirm their gender identity in contrast to the gender they were assigned at birth. “Thus, for example, a teenager whose sex assigned at birth is male can be prescribed testosterone to conform to a male gender identity, but a teenager assigned female at birth cannot.” Tennessee makes this classification explicit by justifying SB 1 as “encouraging minors to appreciate and not be disdainful of their sex.” Justice Alito expressed skepticism about the medical validity of gender-affirming healthcare and at various points attempted to include evidence that had neither been admitted in the original district court case or otherwise briefed, leading Prelogar to respond that, “There is a time and place for that inquiry. It’s not here.” She argued that the Court’s role in this case is to determine the level of scrutiny and remand to the district court to figure out the factual record. Justice Alito, along with Justices Kavanaugh, Thomas, and Chief Justice Roberts, expressed concern about the Court’s role in evaluating such medical evidence and each suggested that it may be outside the Court’s proper role. This prompted Justice Jackson to express concern, saying “It is a bedrock in the Equal Protection framework that . . . where a legislature is drawing lines [using] suspect classifications . . . that’s a question for the Court.” She expressed concern that any suggestion that the Court should step away from that role will “[u]ndermine the foundational bedrock of equal protection.”

• Potential Impact: Three circuits courts have allowed gender-affirming healthcare bans enacted by multiple states to go into effect. These bans have proliferated and now, according to the Williams Institute, nearly 40 percent of trans youth ages 13-17 live in a state where they are denied potentially lifesaving medical treatment. If the Court upholds the ban in this case, it would remain in effect in Tennessee and would impact challenges to other states’ bans in courts throughout the country. It could also lead more states to pass these and even more draconian bans. During oral argument, Strangio noted that if this ban were upheld in the face of an equal protection challenge, then bans of gender-affirming healthcare for adults might also be constitutionally permitted, a position Tennessee Solicitor General Matthew Rice said the state would take.

For more information about the cases on the Court’s docket this term, make sure to listen to our Broken Law podcast (Episode 158 is our SCOTUS Preview) and catch the video of our SCOTUS Preview program.