Chemerinsky: SCOTUS considers law prohibiting gender-affirming care—case of constitutionality, deep cultural division
Erwin Chemerinsky. (Photo by Jim Block)
The culture wars come to the Supreme Court Dec. 4 when it hears oral arguments in United States v. Skrmetti, which involves the constitutionality of a Tennessee law that prohibits gender affirming care for transgender youths. Twenty-six states have adopted such laws. An estimated 118,000 transgender teenagers, about 40% of transgender youths, live in states with bans on gender-affirming care.
The legal issue centers on what level of constitutional scrutiny should be used for such statutes. But underlying the case is a cultural divide about transgender individuals and the practical implications of these laws on the lives of transgender youths.
The Tennessee law
The Tennessee statute, SB1, prohibits health care providers from “prescribing, administering, or dispensing any puberty blocker or hormone” if that treatment is provided 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.” SB1 defines “sex” as the “immutable characteristics of the reproductive system that define the individual as male or female, as determined by anatomy and genetics existing at the time of birth.” The law also prohibits surgical procedures provided for the same purposes, but that prohibition is not at issue in this case and rarely are surgical procedures performed on minors.
Violations of the Tennessee law are punishable by civil penalties of $25,000 for each prohibited prescription or treatment, by professional discipline and by potential civil liability in private suits. In many of the other states that have adopted such laws, there are criminal penalties for health professionals who prescribe puberty-blocking drugs.
On the other hand, reflecting the cultural divide over this issue, 16 states and the District of Columbia have shield laws that protect access to gender-affirming care for transgender youths. These laws affirm the right of minors to receive gender-affirming care and protect patients, guardians and medical professionals from prosecution for seeking or providing care.
The litigation
The petitioners before the Supreme Court are the U.S. government and also private individuals: three transgender adolescents who live in Tennessee, their parents and a Tennessee doctor who treats adolescents with gender dysphoria. This is likely to be important in ensuring the case goes forward. It is expected that after Donald Trump’s inauguration, his administration will inform the court that the U.S. government is changing positions and no longer is challenging the Tennessee law. But the other petitioners surely will continue with the litigation, which means that the case will not need to be dismissed by the Supreme Court.
The federal district court found that SB1 is likely unconstitutional as denying equal protection and issued a preliminary injunction. The district court concluded that the Tennessee law was discrimination based on sex and also discrimination based on gender identity. The district court thus applied intermediate scrutiny, which requires that a government action be substantially related to an important government interest. The court concluded that the Tennessee law prohibited administration of the prevailing standard of care to transgender youths. The court explained “the weight of the evidence” did not support the state’s contention that “either puberty blockers or cross-sex hormones pose serious risks” to transgender adolescents. At the same time, the court found that “the benefits of the medical procedures banned by SB1 are well-established.” Finding that the Tennessee law would cause irreparable injury, the district court issued a preliminary injunction.
The U.S. Court of Appeals for the 6th Circuit, in a 2-1 decision, reversed the district court. The 6th Circuit said only rational basis review was appropriate for the law. The Court of Appeals said the law is not sex discrimination because it “regulate[s] sex-transition treatments for all minors regardless of sex,” and that discrimination against transgender individuals does not warrant heightened scrutiny.
Applying rational basis review, the 6th Circuit concluded that the Tennessee law was reasonable in light of the medical uncertainties in administering puberty-blocking hormones to transgender youths. The court stressed the appropriateness of judicial deference to the legislature in this area.
The issues before the Supreme Court
The Supreme Court granted review on the question: “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.”
The legal issues before the court, raised by the parties and in dozens of amicus briefs, center on what is the appropriate level of scrutiny to be used in considering the constitutionality of Tennessee’s SB1. There is discussion in many of the briefs as to the medical issues surrounding the administration of puberty blockers to transgender youths. The state and its amici argue that the medical literature shows significant harms to administering puberty blocking hormones to minors. The United States, the private petitioners and their amici argue that the medical literature shows few risks to these drugs and substantial benefits for children with gender dysphoria.
But the medical debate ultimately likely turns on the legal issue. If only rational basis review is to be applied, then there is deference to the Tennessee legislature’s view of the medical evidence. On the other hand, if the Supreme Court agrees with the district court and the dissent in the 6th Circuit that heightened scrutiny is appropriate, then it is unlikely that the conflicting medical claims will be a sufficient basis for upholding the law.
One of the key legal issues is whether the Tennessee law should be regarded as sex discrimination. Both the U.S. government and the private plaintiffs argue that under the Supreme Court’s decision in Bostock v. Clayton County, Georgia, discrimination against transgender individuals is sex discrimination. In Bostock, the court held that discrimination based on sexual orientation and gender identity are sex discrimination in violation of Title VII. One of the cases before the court involved a transgender woman who was fired after transitioning. The court explained that if she were male, she would still have her job. That is discrimination based on sex.
The United States and the private plaintiffs say that is exactly what Tennessee is doing: preventing medical care from being administered based on the sex of the patient. The private plaintiffs write in their brief: “Thus, a minor assigned female at birth is prohibited from receiving the same testosterone medication that a minor assigned male at birth might receive—even if both minors are prescribed the medication for the purpose of masculinizing their bodies.” They argue this is the government “imposing a … preference that minors conform to 18 overbroad sex-based generalizations. That is a classic sex classification, and it triggers heightened scrutiny.”
Tennessee and its amici argue that this is not sex discrimination because male and female minors are treated the same: none can receive puberty blocking hormones. Tennessee argues in its brief: “SB1 contains no sex classification that warrants heightened review. It creates two groups: minors seeking drugs for gender transition and minors seeking drugs for other medical purposes. Each of these groups ‘includes members of both sexes,’ so no facial sex classification exists.” Tennessee further argues: “Heightened review also does not apply because boys and girls are not similarly situated for purposes of SB1. It defies biological reality to suggest, as the government does, that males and females are medically the same for purposes of receiving testosterone and estrogen.”
The other major issue with regard to equal protection is what level of scrutiny should be used for discrimination against transgender individuals. This is an issue that the court never has directly addressed. The United States argues in its brief that discrimination against transgender individuals meets all of the criteria for heightened scrutiny: a history of discrimination, a likelihood that discrimination reflects stereotypes and prejudices, an immutable characteristic and political powerlessness.
Tennessee, by contrast, says: “This court has never recognized transgender-identifying persons as a suspect class, and it should not add to the short list of protected characteristics.”
Conclusion
Underlying this case is the question of who should decide. Should it be left to transgender youths, their parents and their doctors to decide the course of medical treatment? Or should it be for state legislatures to make this decision?
It is extremely unusual for states to prohibit medical treatments approved by the Food and Drug Administration. It is impossible to understand the state laws or the case before the Supreme Court except in the context of the culture wars over gender and transgender individuals.
Ultimately, the case is likely to turn on whether the justices on the court will look at the issue through that partisan lens, or if they will focus just on the legal issue of whether this discrimination violates equal protection.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023.
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
