The U.S. Supreme Court on Wednesday upheld a Tennessee law banning certain gender-transition treatments for transgender minors, in a decision with potential ripple effects for other state-level restrictions on transgender rights in education, including bans on transgender girls’ participation in school sports.
Two justices, in fact, sent a signal that they believe states have wide authority to regulate sports eligibility and access to restrooms for transgender students.
The 6-3 decision in United States v. Skrmetti upholds the 2023 Tennessee medical law under the 14th Amendment’s equal-protection clause, which is the same basis upon which several federal courts have blocked laws in Arizona, Idaho, and West Virginia that bar transgender girls from school and college sports.
“This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field,” Chief Justice John G. Roberts Jr. said in the majority opinion. “The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements.”
The law at issue, known as SB1, bars puberty blockers and hormone therapy when used to help transgender minors transition to a gender identity different from their sex assigned at birth. Some 23 other states have similar laws.
There are some 300,000 people aged 13 to 17 who identify as transgender in the United States, according to the Williams Institute at the University of California, Los Angeles, law school. According to a report in JAMA Pediatrics, fewer than 2,000 youths nationwide are receiving puberty blockers or hormone treatments.
Challengers argued that the law created sex-based classifications that violate the Equal Protection Clause because Tennessee does not bar treatments for minors for purposes not related to gender dysphoria, such as a treatment for premature puberty.
Tennessee argued that its law is a legitimate regulation of medical treatment for transgender youths who may regret or be harmed by certain treatments. (A provision of the law barring sex-transition surgical procedures for minors was not before the Supreme Court.)
The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, upheld the law in 2023 by applying a rational basis test, the lowest level of constitutional scrutiny, which requires only that a law be rationally related to a legitimate governmental interest. That court also rejected a claim based on parents’ right to make medical decisions for their children.
Law classifies based on age and medical care, not sex, majority rules
In his majority opinion, Chief Justice Roberts agreed that the law can be sustained under the rational basis test. The law classifies based on age, since it applies only to minors, and based on medical purpose, since puberty blockers and hormone treatments are allowed for some conditions of minors but may not be used to treat gender dysphoria.
But the law does not classify based on sex, Roberts said.
“Under SB1, no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence,” Roberts said. “Minors of any sex may be administered puberty blockers or hormones for other purposes.”
The majority also rejected the challengers’ claims that SB1 enforces a government preference that people conform to expectations about their sex. Roberts said Tennessee’s statutory findings “do not themselves evince sex-based stereotyping.”
“Tennessee found that the prohibited medical treatments are experimental, can lead to later regret, and are associated with harmful—and sometimes irreversible—risks,” the chief justice said.
The majority opinion was joined in full by Justices Clarence Thomas, Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett, and in large part by Justice Samuel A. Alito Jr. (Thomas and Barrett wrote concurring opinions, and Alito wrote an opinion concurring in part and concurring in the judgment.)
Barrett briefly addressed transgender issues in schools in her concurrence, which Thomas joined.
“Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams,” Barrett said. “Legislatures have many valid reasons to make policy in these areas, and so long as a statute is a rational means of pursuing a legitimate end, the Equal Protection Clause is satisfied.”
Justice Sonia Sotomayor wrote the main dissent, joined in large part by Justice Elena Kagan and in full by Justice Ketanji Brown Jackson. Sotomayor read at length from her dissent from the bench.
“The majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review,” Sotomayor said. “By retreating from meaningful judicial review exactly where it matters most, the court abandons transgender children and their families to political whims.”
“Those searching for more evidence of de jure [under law] discrimination against transgender individuals need look no further than the present,” Sotomayor said. “The federal government, for example, has started expelling transgender servicemembers from the military and threatening to withdraw funding from schools and nonprofits that espouse support for transgender individuals.”
Supreme Court likely holding transgender athletics cases for this decision
The Supreme Court last year agreed to hear only the appeal based on the equal-protection clause brought by President Joe Biden’s administration, though it also allowed the private challengers (who had focused on the parental-rights claim) to argue their case.
During oral arguments in December, concerns about how the ruling might play out in school athletics were on the mind of at least one justice.
“Would transgender athletes have a constitutional right, as you see it, to play in women’s and girls’ sports—basketball, swimming, volleyball, track, et cetera—notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes?” Justice Brett M. Kavanaugh asked.
U.S. Solicitor General Elizabeth B. Prelogar, representing the Biden administration, said laws targeting transgender girls in sports involved distinct legal questions that could be analyzed separately from the medical treatment bans.
Kavanaugh cited with evident approval a friend-of-the-court brief filed by cisgender female athletes in support of the Tennessee law and against heightened scrutiny of laws barring transgender students from female sports.
Soon after President Donald Trump took office for his second term, the solicitor general’s office filed a letter with the court announcing that the Biden administration’s views on the case no longer represented the position of the United States. Still, it urged the justices to decide the case.
“The court’s prompt resolution of the question presented will bear on many cases pending in the lower courts,” the letter said.
The high court has been holding the appeals in the three cases from Arizona, Idaho, and West Virginia, most likely because the challenges to those laws were based either entirely or in part on the equal-protection clause.
Those pending appeals are West Virginia v. B.P.J., Little v. Hecox (Idaho), and Petersen v. Doe (Arizona). Now that it has decided the Skrmetti case, it would be customary for the Supreme Court, within a week or so, to vacate lower court rulings blocking the three state laws and ask those courts to reconsider them in light of the Tennessee decision.
Or, the court could grant review of one or more of those cases if it was ready to take up the issue of transgender participation in girls’ sports. But given the ongoing litigation and political activity around the country, the court may opt to remand the cases for now and let lower courts apply the new precedent.
