The Supreme Court upheld a Tennessee law prohibiting gender-affirming medical care for transgender minors. By a vote of 6-3, the Court’s conservative majority ruled the ban does not violate the Fourteenth Amendment’s Equal Protection Clause. The challengers had argued that by banning gender-affirming care for minors with gender dysphoria, while allowing the same treatments for other medical conditions in cisgender minors, it discriminately targeted transgender minors in violation of the Equal Protection Clause. 

What is this case about?

• In 2023, the Tennessee legislature enacted a law prohibiting doctors from providing puberty blockers and hormone therapy to transgender minors as part of gender-affirming care.
• Among the reasons for enacting such a law, the legislature wrote, “This state has a legitimate, substantial, and compelling interest in…prohibiting medical procedures that are harmful, unethical, immoral, [or] experimental.”
• In total, 26 states ban gender-affirming care for transgender minors.
• Studies show that puberty blockers and hormone therapy significantly reduce anxiety, depression, and suicidality in transgender minors. Puberty blockers and many hormone treatments are reversible. Opponents argue these treatments stunt growth and have cardiovascular risks.
• A group of transgender teens, along with their parents, filed a lawsuit challenging the statute as a violation of the Fourteenth Amendment’s Equal Protection Clause. The Biden administration joined the lawsuit in support of the transgender teens.

What happened in the courts?

• U.S. District Judge Eli Richardson froze enforcement of the ban and wrote about the intense publicity of the issue: “The Court realizes that today’s decision will likely stoke the already controversial fire regarding the rights of transgender individuals in American society on the one hand, and the countervailing power of states to control certain activities within their borders and to use that power to protect minors.” 
• Then, a divided panel of judges on the U.S. Court of Appeals for the Sixth Circuit reversed Richardson’s order and ultimately upheld the ban on gender-affirming care.
• The families and the Biden administration petitioned the Supreme Court to review the appellate court’s decision. The justices granted the Biden administration’s request. (The family’s petition also contained arguments about the rights of parents to make decisions about their children’s medical care, while the government’s petition did not.)
• Earlier this year, the Trump administration notified the justices that the government is changing its position to support Tennessee in seeking to uphold the law. Deputy Solicitor General Curtis Gannon wrote, “The Department has now determined that SB1 does not deny equal protection on account of sex or any other characteristic. Accordingly, the new Administration would not have intervened to challenge SB1—let alone sought this Court’s review of the court of appeals’ decision reversing the preliminary injunction against SB1.”

What is the Equal Protection Clause of the 14th Amendment?

• Equal Protection Clause of the 14th Amendment: “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”
• To succeed with a claim under the Equal Protection Clause, the challenger must show that a state actor treated them differently from others without sufficient justification under the applicable level of scrutiny, resulting in harm.
• The levels of scrutiny: 
  • Strict Scrutiny: The law must be “‘narrowly tailored’ to serve ‘compelling governmental interests.’”
  • Intermediate Scrutiny: The law must be “substantially related to the achievement of an important government interest.”
  • Rational Basis: “[The Court] will uphold a statutory classification so long as there is ‘any reasonably conceivable state of facts that could provide a rational basis for the classification.’”

How has the Supreme Court ruled in recent transgender rights cases?

• There is limited Supreme Court jurisprudence on transgender rights issues.

• Bostock v. Clayton County (2020): The Court held that it is unlawful for an employer to discriminate against an individual based on sexual orientation or gender identity. Justice Neil Gorsuch wrote, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.” 
• Gloucester County School Board v. Grimm (2021): The Supreme Court declined to intervene in a dispute over whether Title IX and the Equal Protection Clause require schools to allow transgender students to use bathrooms matching their gender identity. The denial of certiorari left the lower court ruling in favor of the transgender student in place.

What did the Supreme Court decide in the current case?

• The Court’s six conservative justices ruled in favor of Tennessee, upholding the ban on gender-affirming care, while the Court’s three liberal justices dissented.
• The justices determined that the lowest level of scrutiny applies because the law classifies individuals by age and medical use, but not by sex, which would have triggered heightened scrutiny. According to Roberts, the law “does not mask sex-based classifications…The law does not prohibit conduct for one sex that it permits for the other. Under SB1, no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence; minors of any sex may be administered puberty blockers or hormones for other purposes.”
• Roberts also wrote that the Court has never recognized transgender status as a suspect class, which would have heightened the level of scrutiny. (A suspect class is a group of people who have historically faced discrimination and are afforded special protections under the Equal Protection Clause.)
• In addition, Roberts pointed out that the Court has “not yet considered whether Bostock’s reasoning reaches beyond” federal employment discrimination cases.
• Therefore, when applying the Equal Protection’s rational basis test, the Court found Tennessee’s law to be constitutional. Roberts wrote, “Tennessee concluded that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence. SB1’s ban on such treatments responds directly to that uncertainty.”

What did the concurring justices write?

• Justice Clarence Thomas criticized the Biden administration’s reliance on medical experts as the basis of some of the government’s arguments. Thomas wrote that the cited experts “have built their medical determinations on concededly weak evidence. And, they have surreptitiously compromised their medical recommendations to achieve political ends.” 
• Justice Amy Coney Barrett argued that transgender status is not a suspect class. According to Barrett, “transgender individuals do not share the ‘obvious, immutable, or distinguishing characteristics’ of ‘a discrete group’ [to]…define a suspect class.” She continued, “The category of transgender individuals is ‘large, diverse, and amorphous.’”
• Justice Samuel Alito posited that there is “a strong argument” that the Tennessee law classifies based on transgender status. However, he argues that transgender status is not a suspect class and should not be the basis for heightened scrutiny. Thus, he agrees with the Court’s outcome, upholding the law as constitutional via the rational basis test.

Why did the Court’s liberal justices dissent?

• Justice Sonia Sotomayor read her dissenting opinion aloud from the bench and ended it with “I dissent,” omitting the traditional qualifier “respectfully.”
• In Sotomayor’s view, “SB1 plainly classifies on the basis of sex, so the Constitution demands intermediate scrutiny.” She argues, “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. Put in the statute’s own terms, doctors can facilitate consistency between an adolescent’s physical appearance and the ‘normal development’ of her sex identified at birth, but they may not use the same medications to facilitate ‘inconsisten[cy]’ with sex.”
• Sotomayor also argued that transgender status is a suspect class. She wrote, “Transgender people have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence.” Thus, transgender individuals should be afforded special protections.
• Sotomayor ended her dissent by highlighting the dangerous implications of this ruling for transgender children and their families. Sotomayor wrote, “The Court’s [decision]…invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight. It also authorizes, without second thought, untold harm to transgender children and the parents and families who love them.”

What happens next?

• The Supreme Court’s ruling means Tennessee’s ban on gender-affirming care for minors remains on the books.
• In addition, similar laws in 25 other states will remain in place as well.
• Some outstanding issues still could be challenged by other plaintiffs, including the provision of the law that prohibits gender-affirming surgery. That claim was originally raised in the district court but was dismissed because these challengers expressed no “desire or plan to receive surgery for their treatment of gender dysphoria.” Plus, gender-affirming surgery is usually reserved for transgender adults, not minors. Therefore, these challengers lacked standing to bring the claim. (Standing is a constitutional requirement that a plaintiff demonstrate an injury caused by the defendant that can be redressed by a favorable outcome in court. Since these challengers had no plans to have gender reassignment surgery, they lacked standing to sue.)
• The Supreme Court in this case also did not entertain arguments related to parental rights over children’s health care.
• This decision could also pave the way for a federal ban on gender-affirming care for minors if there is sufficient Congressional support for such legislation.