Last week, the Supreme Court decided one of the most watched cases of the Term, United States v. Skrmetti, which involved a constitutional challenge to Tennessee’s ban on the use of puberty blockers or hormones for transgender minors under the Equal Protection Clause. The six-justice conservative majority on the Court allowed the law to stand, and most press attention focused on the impact of the decision for transgender children and their families.

The human cost of the Court’s decision merited that attention, but I want to focus here on an aspect of the Court’s decision that received less attention but is also important. The Court’s reasoning in Skrmetti is a worrisome signal that a majority on the current Court is going to be far less vigilant in policing laws that discriminate on the basis of sex and against disfavored minority groups. To understand why, let me start with a brief primer on the Supreme Court’s rubric for reviewing legislation under the Equal Protection Clause.  

Most legislation is reviewed under a rational basis standard. As the Court noted in Skrmetti, under rational basis review, “if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.” This is a forgiving standard that almost always means a law will be upheld. In contrast, if a law targets a “suspect class,” it gets closer scrutiny from the Court. Laws that make racial distinctions, for example, get strict scrutiny and will survive only if they are narrowly tailored to serve a compelling state interest. The legal scholar Gerald Gunther famously observed the test is “strict in theory, fatal in fact,” as most laws do not survive this test. 

Sex-based classifications fall in the middle of these poles and get an intermediate form of scrutiny that requires the state to show that its sex-based classification “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Unlike laws subject to strict scrutiny, laws that face intermediate or heightened scrutiny can sometimes survive if the Court finds there are good reasons for making sex-based distinctions. The Court has, for example, upheld the male-only draft and statutory rape laws that focused on sex with females under a certain age as opposed to all people under a certain age because of a stated concern with preventing teenage pregnancy. At the same time, the Court has struck down many other sex-based distinctions. For example, it rejected a female-only admissions policy at a state nursing school and likewise struck down a male-only admissions policy at the Virginia Military Institute. The review of sex-based distinctions thus occupies a middle ground that gives the state an opportunity to explain why it makes sense to focus on biological attributes of sex, and the Court often allows those distinctions. 

The petitioners challenging Tennessee’s law argued that the ban on gender-affirming care merited heightened scrutiny because it discriminated on the basis of sex. This was not exactly a heavy lift for the petitioners given that the actual text of the law states that the procedures cannot be done if it is for the “purpose of enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex or treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Roberts’ opinion for the Court brushes this aside by stating that a mere reference to sex is not enough to trigger heightened scrutiny. In this case, the opinion argues, rather than discriminating on the basis of sex, the law is really just regulating the use of medical treatments for certain conditions – in this case, gender dysphoria, gender identity disorder, or gender incongruence. 

There are two major problems with this approach by the majority. First, the conditions being regulated are inextricably bound with sex and identity, so it’s not like the law is talking about disallowing drugs for the treatment of high blood pressure. It is hard to see this law as anything but a law making a distinction on the basis of sex. The only people affected are transgender kids. 

The majority, however, claims that the law is not discriminating on the basis of transgender status, relying on a 1974 case, Geduldig v. Aiello, in which the Court upheld a California insurance program that refused to cover certain pregnancy-related disabilities. The Court in Geduldig concluded that the scheme did not amount to discrimination on the basis of sex because the program only removed a particular condition – pregnancy – from the list of what was covered and did not refuse to cover women as a class. Because not all women would be pregnant and affected, the Geduldig Court said the law was fine.  

Roberts uses this case to argue that, although “only transgender individuals seek puberty blockers and hormones for the excluded diagnoses,” some transgender individuals will seek hormones and puberty blockers for diagnoses that are not excluded. Thus, just as some women will get pregnant and some will not – the logic forming the basis for Geduldig’s conclusion that the California law was constitutional – the fact that some transgender kids can use hormones and puberty blockers for other conditions also means Tennessee’s law does not discriminate on the basis of sex. The majority therefore holds that the law is subject only to rational basis review.

You do not need a law degree to see the flaw with Geduldig’s reasoning. A law that rules out pregnancy as a covered offense discriminates against women because pregnancy is inextricably linked to sex. Congress recognized as much, rebuking Geduldig by passing the Pregnancy Discrimination Act of 1978 and stating that discrimination “because of sex” or “on the basis of sex” includes discrimination “on the basis of pregnancy, childbirth, or related medical conditions.”

It has been standard fare for decades to teach Geduldig as an abomination. It is taught in the same way that a case like Korematsu is taught – as an example of the Court misunderstanding discrimination and failing at its most basic task. Geduldig had been viewed as a relic of the 1970s, like orange shag carpeting and vinyl jumpsuits, but far more pernicious. To John Roberts and his colleagues, however, it is the key to resolving Skrmetti. As Justice Sotomayor observed in her dissent, “[t]hat the majority must resuscitate so unpersuasive a source, widely rejected as indefensible even 40 years ago, is itself a telling sign of the weakness of its position.”

The second problem with the majority’s approach is that it seems to think that applying heightened scrutiny to laws regulating conditions specifically associated with sex would call into question too many important distinctions in the medical context. But just because one recognizes that a law discriminates on the basis of sex, that does not mean the law will be struck down. Heightened scrutiny just means courts take a closer look, rather than rubber-stamping the law. The Court, however, seems to want to avoid the inquiry entirely and give legislatures the freedom to draw sex-based lines in the medical context without judicial oversight. This reluctance to take a closer look at medical conditions tied to sex could mean that the regulation of abortion, pregnancy, menstruation, and other reproductive health care decisions could be used to discriminate against women. In the majority’s view, this would merely be “conditions-based” regulation and not grounded in sex, but that just ignores reality.  

If all this was not bad enough, three justices – Justices Thomas, Alito, and Barrett – would have gone further and applied rational basis even to a law that expressly discriminated on the basis of transgender status. That is, even if Tennessee did not write its law as focused on particular conditions bound up with transgender status but had instead categorically said “transgender minors cannot get hormones or puberty blockers,” these three justices would still apply rational basis review. It remains to be seen what Chief Justice Roberts and Justices Kavanaugh and Gorsuch think of such laws, but if at least two of the three share that view, states would have wide latitude to exclude transgender people from more than just specific medical treatments.

Justice Sotomayor was right to sound the alarm in her dissent that the Court in Skrmetti “does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight.” None of us should turn a blind eye to that.