Supreme Court ruling on transgender care called partisan and flawed

The U.S. Supreme Court abandoned science, fairness and common sense in its June 18 decision upholding a state’s ban on gender-affirming care for transgender youth, civil rights and legal experts said.

The 6-3 ruling in U.S. v. Skrmetti found Tennessee’s 2023 measure does not violate the Fourteenth Amendment guarantee of equal protection in denying medical treatment to a certain group of people — in this case those with gender dysphoria.

To reach that conclusion, the justices relied on a “rational basis” review that considered only whether a law is reasonably related to the state’s interests, not on its adherence to equity or equality.

“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,” Chief Justice John Roberts wrote for the majority. “Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives and the democratic process.”

The Tennessee law prohibits health care providers from providing gender-affirming care for minors, including the use of hormone therapies, puberty blockers and surgery. Transgender health care providers say noninvasive therapies such as puberty blockers are essential to save lives.

The court should have used the higher “intermediary scrutiny” standard it typically applies to laws that treat certain groups of people differently, Justice Sonia Sotomayor wrote in her minority opinion.

Tennessee’s law actually conditions the availability of certain drugs and procedures on an adolescent’s sex and transgender status, and such discrimination warrants the higher level of review denied by the high and lower court levels, she said. “By retreating from meaningful judicial review exactly where it matters most, the court abandons transgender children and their families to political whims. In sadness, I dissent.”

U.S. V. Skrmetti was filed in 2023 by the American Civil Liberties Union, the ACLU of Tennessee and a private law firm on behalf of three families with transgender children and a Memphis physician seeking protection under the Equal Protection clause of the U.S. Constitution.

The federal government supported the lawsuit under President Joe Biden but reversed positions after Donald Trump’s inauguration.

“Today the Supreme Court told Tennessee transgender youth and their families that they cannot access health care that is vitally important for a successful life,” said Lucas Cameron-Vaughn, senior staff attorney at ACLU of Tennessee. “This ruling creates a class of people who politicians believe deserve health care and a class of people who do not.”

Other critics asserted the ruling was heavily influenced by Christian nationalist ideology and the desire of religious hardliners to oppress the rights of transgender people.

“It undermines both parental rights and medical freedom, and signals a dangerous willingness by the court to allow theology to dictate constitutional rights,” said Patrick Elliott, legal director of the Freedom from Religion Foundation. “These laws deny trans youth life-saving, evidence-based medical care and strip parents and doctors of the ability to make informed, compassionate decisions — all to appease Christian nationalist lawmakers and interest groups.”

The rationale behind the ruling is absurd, said Russell K. Robinson, professor of law and faculty director of the Center on Race, Sexuality and Culture at the University of California at Berkeley. “The court’s claim that the state law regulates medical treatment, but not on the basis of sex or transgender identity, flies in the face of common sense.”

The decision also means transgender people in future cases will be granted only “rational basis” view, which is considered the lowest level of criteria to determine if a law meets constitutional standards, he said. “Unfortunately, the opinion establishes that courts now have discretion whether or not to analyze under heightened scrutiny a law that treats men and women differently. This creates an opening for justices to rely on policy arguments instead of legal principles.”

The ruling also abandons transgender children and their families to the beliefs of a right-wing movement bent on fusing government and religion, said Sam Spital, associate director counsel at the NAACP Legal Defense Fund. “At the heart of the Fourteenth Amendment is the principle that the law must protect all of us equally, and we are saddened to see the Supreme Court deny this protection to transgender youth.”

Christian nationalist groups, meanwhile, have lauded the Supreme Court decision.

“The American people and their elected representatives, not unelected judges, have the authority to tackle issues like these,” said Thomas Jipping, senior legal fellow with the Heritage Foundation, the organization behind Project 2025. “Tennessee is making sure that the current fad of gender ideology does not permanently harm children. Because the Constitution does not decide that issue for them, the Supreme Court properly chose to leave it to them.”

That was a theme repeated by Justice Clarence Thomas in his opinion concurring with the majority.

“Taken together, this case serves as a useful reminder that the American people and their representatives are entitled to disagree with those who hold themselves out as experts, and that courts may not ‘sit as a super-legislature to weigh the wisdom of legislation.’”

Thomas also disparaged the use of medical expertise in deciding the constitutionality of state laws governing medical issues like gender dysphoria. “To hold otherwise would permit elite sentiment to distort and stifle democratic debate under the guise of scientific judgment and would reduce judges to mere ‘spectators … in construing our Constitution.’”

Justice Amy Coney Barrett held that regulating gender dysphoria and other medical conditions is the purview of lawmakers, not judges.

“Legislatures have many valid reasons to make policy in these areas, and so long as a statute is a rational means of pursuing a legitimate end, the Equal Protection Clause is satisfied,” she said.

Barrett also agreed with the majority that transgender people do not comprise a “discreet group” and went further to claim their historic discrimination in employment, education, health care and other private settings does not constitute grounds for protection under the Constitution.

“For purposes of the Fourteenth Amendment, the relevant question is whether the group has been subject to a longstanding pattern of discrimination in the law. In other words, we ask whether the group has suffered a history of de jure (official policy) discrimination,” Barrett said.

But the court should not have overlooked that the American Academy of Pediatrics, American Medical Association, American Psychiatric Association, American Psychological Association and American Academy of Child Adolescent Psychiatry have proclaimed the efficacy of transgender therapies, Sotomayor wrote.

“When provided in appropriate cases, gender-affirming medical care can meaningfully improve the health and well-being of transgender adolescents, reducing anxiety, depression, suicidal ideation and (for some patients) the need for more invasive surgical treatments later in life,” she explained.

Meanwhile, the ruling and the attitudes behind it do not bode well for transgender and nonbinary people already responding to the decision with fear and anxiety, said Brian Henderson, executive director of the Association of Welcoming and Affirming Baptists.

“We fear this decision will result in an even more negative impact on young lives, with the potential for severely detrimental physical and mental health outcomes,” he said.

Henderson urged supporters of the LGBTQ community to reach out to transgender and binary youth and their families and to press elected representatives to oppose discriminatory measures.

“AWAB especially holds in mind and heart those within our larger Baptist family who will feel even more acutely the implications of this decision,” Henderson said.

 

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