The Dangerous Trans-Rights Decision from the Supreme Court

On June 18, the Supreme Court issued its decision in United States v. Skrmetti, upholding a Tennessee law banning gender-affirming care for minors. Skrmetti represents a significant setback for transgender rights since the Court issued its 2020 opinion in Bostock v. Clayton, which extended protections against sex-based discrimination to gender identity and sexual orientation. Although the 6-3 Skrmetti majority preserved Bostock, they dismissed its applicability to Skrmetti, spelling trouble for future LGBTQ rights—and especially trans-rights—cases. 

Twenty-seven states ban hormone therapy, puberty suppression, and other medical interventions for addressing gender dysphoria, a condition in which individuals experience “significant distress or impairment” stemming from a mismatch between their gender identity and the physical markers of their birth-assigned sex. Eight states with bans for minors also have, or are considering, limitations on care for adult transgender populations.  

Puberty suppressors delay the progression of puberty and its physical changes. For gender dysphoric young people, this means staving off the process in which some sex-based physical characteristics are activated. Hormone replacement therapies allow individuals to launch a puberty of sorts that promotes the development of sex-based traits that match their gender identity, and to maintain those changes so long as hormone levels are maintained. In other words, puberty suppressors pause physical development, while hormone treatments steer development towards gender-identity-affirming sex-specific markers. 

A small percentage of youth whose gender identity does not conform to their sex-based characteristics (commonly referred to as “transgender”) seek out puberty suppressors. And even fewer pursue hormone therapies. Nevertheless, the bans could impose significant costs on the lives of the young people who may need them. While some physicians and scientists, particularly in the United Kingdom and the Netherlands, have expressed concerns about the understudied long-term effects of hormone therapies on young people, mainstream scientific organizations in the United States cite numerous studies demonstrating their benefits—particularly in decreasing the incidence and magnitude of significant and ongoing depression and suicidality that too often accompany gender dysphoria.  

Some states with bans have also passed legislation penalizing parents and physicians who help minors receive these therapies. The bans leave the parents of transgender youth with the impossible choice of living in a state with these policies and having their child forgo critical therapies, seeking therapies elsewhere (sometimes on the sly), or moving out of their state to support their children. Each of these options imposes significant risks and costs on gender dysphoric youth and their families. 

Skrmetti is a bellwether for LGBTQ rights in the aftermath of Bostock v. Clayton County, which expanded those rights. Bostock is an amalgam of several cases that highlight conflict over the federal meaning of “sex,” in the context of civil rights protections, and its application to instances of discrimination based on gender identity or sexual orientation. One of the cases included in Bostock involved Aimee Stephens, a transgender woman who was fired from her position at Harris Funeral Home in Michigan because of her gender identity. The Court determined that sexual orientation and gender identity were both included within the meaning of the word “sex” in the context of Title VII of the Civil Rights Act of 1964, which forbids discrimination by employers “because of [an employee’s] race, color, religion, sex, or national origin.” 

While Title VII does not reference gender identity, court decisions, as well as previous guidance from the Equal Employment Opportunity Commission, maintain that prohibitions against discrimination based on sex necessarily incorporate sexual orientation and gender identity, as each relies on stereotypes or misperceptions of sex and gender. Writing for the Bostock majority, Justice Neil Gorsuch concluded that “it is impossible to discriminate against someone on the basis of being homosexual or transgender without discriminating on the basis of sex.” 

The Skrmetti case, named after Tennessee’s attorney general, merged challenges to the state law brought by transgender children, doctors, and the Biden administration. Challengers argued that bans on hormone therapy for gender dysphoria violate both the 14th Amendment and the kind of statutory protections considered by Bostock. Tellingly, the state bans do not outlaw these hormone therapies for all minors. Young people experiencing “precocious puberty” (a condition in which children begin puberty before age 9, increasing the risk of infertility and cancer) have long relied on the same suppressors now banned by Tennessee for youth with gender dysphoria.  

According to the American Medical Association, the American Academy of Pediatricians and the Endocrine Society among others, puberty suppressors, such as GnRH, or Gonadotropin-Releasing Hormone, a hormone produced in the hypothalamus that regulates the reproductive system, are clinically proven to stop early-onset puberty and have been used since the 1980s to treat the condition. NIH-supported researchers describe these interventions as the “gold standard” of care.  

The Supreme Court’s majority opinion, written by Chief Justice John Roberts, rests on two questions stemming from past rulings: 1) Do policies banning gender-affirming care hinge on sex-based classifications—which would arguably violate the Equal Protection Clause of the Fourteenth Amendment?—and 2) To what degree should courts intervene in policy disputes about which there appear to be significant scientific disagreement? 

The Skrmetti majority—all justices nominated by Republican presidents—argued that the Tennessee statute is not even really about a sex-based classification. All genders are equally affected by the ban. It’s not people, but instead medical treatments for conditions that are being regulated by the state. Precocious puberty is a valid trigger for these therapies; gender dysphoria is not. Framed in this way, Bostock is rendered irrelevant. 

The Skrmetti majority argued that gender-affirming care bans do not meet the “but for” or “because of sex” criteria established by past federal precedent and confirmed in Bostock. This standard argues that, to prevail under federal civil rights statutes, plaintiffs must demonstrate that their treatment (in employment, housing, access to public accommodations, etc.) would have been better “but for” their sex. In other words, plaintiffs need to demonstrate they experienced a worse set of outcomes “because of their sex.”  

The Skrmetti majority finds that despite the ban’s narrow application to “gender dysphoria, gender identity disorder and gender incongruence,” the Tennessee plaintiffs fail to make a convincing argument that bans on medical care for transgender minors meet the “because of sex” or “because of gender identity” standard reified under Bostock. Roberts argues that children of all sexes and gender identities can still access puberty suppressors and hormone replacement therapies so long as their diagnoses are sanctioned by state law. Similarly, youth of both sexes are prohibited from receiving these treatments in the context of gender dysphoria or other related conditions. Diagnoses trigger these bans, argues the majority, not classifications of people.  

The majority opinion was easy to foresee during oral arguments. Roberts asked the challengers whether the legislation relied on sex-based classifications at all, or whether it was a simple question of the state’s long-accepted authority to regulate medical policies. States have significant latitude in monitoring and constraining medical interventions to protect the welfare of their residents.  Physicians regularly prescribe hormone therapies to minors experiencing precocious puberty, yet this fact does not prohibit the state from regulating their use for gender dysphoria, the argument runs.  

Analyzed within this framework—as simply a question of medical intervention rather than gender identity bias—the justices are free to rely on the analysis pioneered by the majority in Dobbs v. Jackson Women’s Health Organization, which voided constitutional protections for women seeking abortion. In contested medical or social issues, Justice Samuel Alito wrote in the majority opinion in Dobbs, the legislatures, not the courts, should prevail. 

That logic may seem ironclad. Of course, states can regulate medical care. Yet, to immunize decades of federal precedent when it comes to gender-affirming care, the majority engages in legal gymnastics. Gender dysphoria, gender identity disorder, and gender incongruence are conditions where patients feel trapped and acutely distressed by sex-based characteristics that conflict with their gender identity. Sex and gender identity are two sides of the same coin.  

After diminishing Bostock’s relevance, the Court reaches back more than 50 years to a tortured—and entirely repudiated—decision to bolster its arguments. In Geduldig v. Aiello, a 1974 case, the Court held that the state of California did not discriminate against women when it excluded pregnancy-related disabilities as a medical condition that triggered benefits under a state-mandated disability fund. The majority concluded that the state’s decision to exclude pregnancy-related disabilities to keep the program solvent did not “discriminate[ ]against any definable group or class.” Instead, the state exercised its authority to choose which conditions to cover and which to exclude. Only women experience pregnancy-related disabilities, but that’s irrelevant, the majority ruled. Lots of conditions are excluded, they argued, and some male applicants may find themselves in a similar situation with their disabilities exempted from coverage. 

Yet absent from the flawed analysis in Geldudig (and by extension Skrmetti) is how sex-based characteristics determine who will bear the costs of these bans. It made no difference to the majority in Geldudig that women—and only women—were impacted by policies that curtail pregnancy coverage. Geldudig ignored that 1) sex-based differences manifest different physical burdens and conditions, and 2) policies that exclude sex-determined physical ailments from coverage necessarily impose sex-determined costs and challenges. The Geduldig Court ignored the unequal imposition of costs that extend from its ruling. 

In 1978, Congress repudiated Geduldig’s misstep by passing the Pregnancy Discrimination Act, which explicitly acknowledges the reality that pregnancy is sex-determined—and that any attempt to single out pregnancy in the imposition of costs and burdens produces a sex-based violation. With this fix, courts could apply a growing body of precedent-setting cases requiring what is called heightened scrutiny for policies based on sex-based classifications to those that relate to pregnancy. 

But the Court in Skrmetti exhumed Geduldig from its grave. It revived the practice of removing medical conditions from their sex-based (or, in this case, specifically gender-identity-based) roots—as Geldudig ran roughshod over sex and pregnancy, so too with Skrmetti and gender identity and gender dysphoria. Roberts and the Court’s conservative supermajority ignore that gender dysphoric youth alone shoulder the costs of these bans.  

As with the men who served as reference points in Geduldig, young people whose sex- and gender identity-based characteristics are not in conflict—those who are commonly referred to as cisgender—will never be shackled by these bans. By definition, only young people who experience a mismatch between gender identity and sex receive the diagnoses at issue in Skrmetti. 

And, as with many wrong-headed Supreme Court decisions, Skrmetti‘s consequences will be felt beyond this case. For one, Bostock’s relevance is in doubt. If we can argue that gender affirming care does not hinge on either sex or gender-identity-based classifications, the Court will have ample room in future cases to willfully ignore the unfavorable treatment targeted at transgender persons and them alone. An ill tide that begins with children’s medical care will affect employment discrimination and beyond.