Earlier this month, the Supreme Court heard oral arguments in what is likely to be the term’s blockbuster case, United States v. Skrmetti. The case considers the constitutionality of state laws that ban gender-affirming care for transgender minors. While the case itself addresses only a law from Tennessee, 26 states have passed similar laws that will be affected by the outcome.
A blanket ban on such care risks devastating effects for those youth who need it. But as the argument made clear, that is not all that is at stake. The case is also about women’s rights, and a fundamental legal principle that helped to secure them: Courts should be skeptical of laws that discriminate on the basis of sex.
With the defenders of Tennessee’s law challenging that bedrock principle, it is not only transgender equality, but sex equality more broadly that is in doubt. Depending on the outcome, Skrmetti could be the next Dobbs, adding another nail in the coffin to women’s legal freedoms — and freedoms we all enjoy regardless of sex.
The United States is challenging the Tennessee law on the basis of the Constitution’s equal protection clause, which has been interpreted to guarantee sex equality. Under this provision, sex-based laws — that is, laws that on their face classify people on the basis of sex — are subject to what is known as heightened scrutiny, which means that courts will invalidate them unless there is a persuasive reason to draw a sex-based line.
SB1, the Tennessee law at issue in this case, bans certain medical treatments only when they are prescribed to allow a minor to affirm a gender that differs from their sex assigned at birth. The very same treatments are unrestricted if they are prescribed for any other purpose, such as treating delayed or early-onset puberty.
U.S. Solicitor General Elizabeth Prelogar made clear at the argument that this constitutes sex discrimination. She offered an illustrative example: “[T]ake Ryan Roe, who is one of the individual plaintiffs here. He wants to take testosterone in order to live and identify as a boy, and he’s prohibited by SB1 from doing so because his birth sex was female. But, if you change Ryan’s birth sex and suppose he was assigned male at birth, then SB1’s restriction lifts.” Drawing a line between biological females and biological males — one can get the treatment and the other can’t — should trigger demanding judicial scrutiny of the law.
Perhaps the key question was whether this is really a case of sex discrimination. Justices Elena Kagan and Amy Coney Barrett deemed the sex discrimination analysis rather “formal,” with both asking some version of whether, as Justice Kagan put it, “what’s really going on here is … discrimination against, a disregard for, young people who are trans,” rather than any disregard based on sex. Whether the court treats this as a case of sex discrimination matters a lot. Chances of the challenge prevailing on a theory of transgender discrimination, rather than a theory of sex discrimination, are slim to none. Discrimination against transgender people is not now subject to heightened scrutiny, and the Supreme Court hasn’t added a new protected class in decades. A win for the challengers will almost certainly go through the path of the sex discrimination theory.
Yet there is more on the table. Even if the law draws this line based on sex, Tennessee argues that the court should give it a free pass. Tennessee points to other lines the law draws to negate the sex-based lines. Justice Sonia Sotomayor asked a telling question: “If a sex-neutral-looking child walks into a doctor and says, I don’t want to grow breasts, doesn’t the doctor have to know whether it’s a girl or a boy before they prescribe the drug?” According to Tennessee, what the doctor has to know is the purpose of the drug — that is, whether it’s related to a gender transition or for some other purpose. Never mind that Justice Ketanji Brown Jackson got Tennessee’s lawyer, Tennessee Solicitor General Matthew Rice, to concede that the law would allow a child assigned male at birth to get a hormone treatment to deepen his voice or avoid growing breasts, but prohibit a child assigned female at birth from getting the very same treatments for the very same purposes. For Tennessee, then, not all laws that draw sex-based lines warrant a close look by the court. If that’s right, it would be far easier to uphold not only this law, but many other laws that discriminate based on sex.
Adopting Tennessee’s approach would undermine not only the interests of transgender minors in need of medical care, but a half century of legal precedent that has formed the cornerstone of women’s equality in law. Over 50 years ago, the Supreme Court recognized that judicial scrutiny of sex-based laws was needed to fulfill the constitutional mandate of equality. As one early case put it, while sex was usually irrelevant to “the ability to perform or contribute to society,” a history of discrimination against women had nonetheless “relegat[ed] the entire class of females to inferior legal status.” Careful scrutiny of sex-based laws was needed to ensure that the law did not continue to perpetuate invidious discrimination.
Since then, the Supreme Court has subjected any law that draws lines on the basis of sex to exacting scrutiny, upholding it only when there is an important reason for doing so. This doctrine of sex equality has allowed courts to invalidate laws that forced women into subservient positions in the family and out of many areas of public life. The Skrmetti argument itself — with four women on the court and one arguing before it — is a striking illustration of the doctrine’s success.
One idea that Tennessee has floated — that sex-based laws related to biological sex difference are shielded from scrutiny — is particularly pernicious. As I have shown in research, this has never been the court’s approach. And for good reason. Throughout the history of sex discrimination, hiding bias behind biology has been a common tactic. Many sex-based lines that have been challenged in the court — from a male-only university admissions policy to rules distinguishing mothers and fathers when it comes to the citizenship of their children — have been couched in terms of physical sex differences. Upon examination, the court has acknowledged that sex stereotypes and not biological differences drive these laws. Without requiring that courts take a close look at all sex-based laws, we make it far too easy to legislate on sexual prejudice.
Just as important as addressing women’s subordination, equal protection has been a key tool in striking down laws that confine not just women, but men, to traditional roles and expectations. Equal protection has been used to invalidate laws that exclude men from caregiving or that require anyone to conform their behavior or appearance to sex-based conventions. In doing so, the doctrine helps to free all of us from limiting sex stereotypes.
Seen this way, it is not hard to appreciate that the law at issue here strikes at the heart of sex equality. The Tennessee law — and trans discrimination more generally — is not only about discrimination against trans people, but about ensuring that we all keep in our gender lanes. As Prelogar explained, the law here is “one that prohibits inconsistency with sex,” requiring that children born as boys and girls “look and live like boys and girls.” Tennessee’s argument would call into question the longstanding freedom we all enjoy to live our lives as we wish, regardless of sex.
Far from being a neutral law that applies evenhandedly to males and females, the law at issue here is of a piece with a gender hierarchy that prizes masculinity while narrowly circumscribing femininity. Medical treatments that would reduce the fertility of trans boys and men threaten the idea of women being mothers first (and anything else second or not at all). A friend-of-the-court brief from leading conservative anti-abortion group, Alliance Defending Freedom, worried that, “If both a boy and a girl are considering a mastectomy, only the girl gives up the ability to breastfeed her future child.” Scare tactics about girls renouncing maternity are part of anti-trans politics, with the cover of conservative critic Abigail Shrier’s book, Irreversible Damage: The Transgender Craze Seducing Our Daughters, showing a young girl with a blank space where her uterus would be. These anxieties about women rejecting motherhood are the very same ones that motivate much of the opposition to abortion — and they are grounded upon the very same sex stereotypes that the equal protection clause is meant to abolish.
The idea of rolling back five decades of law critical to sex equality may feel like déjà vu. This is the court that gave us Dobbs, which reversed a 50-year-old precedent guaranteeing women’s reproductive freedom.
Notwithstanding Dobbs, there may be a glimmer of hope. The court — both its liberal and conservative wings — has shown a willingness to view sex discrimination with skepticism. Justices across the political spectrum have applied heightened scrutiny to sex-based laws, even when those laws, like the one here, relate to biological sex difference.
The most recent such case, from 2017, rigorously scrutinized a sex-based law linked to biology and struck it down without dissent (although two conservative justices agreed with the result without weighing in on the sex discrimination claim). In that decision, the court spoke of “an era when the Nation’s lawbooks were rife with overbroad generalizations about the way men and women are” — an era that the court thought was long in the past.
Let’s hope this decision keeps it that way. The lives of transgender youth and the fate of sex equality hang in the balance.
