More good news for the movement to let kids be in the United States! The US Supreme Court just upheld a Tennessee ban on medical transitions for minors in United States v Skrmetti.
In 2023, Tennessee prohibited prescribing, administering, and dispensing puberty blockers or cross-sex hormones for the purpose of medical transitioning for minors. The reasons for this ban are the same that every other jurisdiction has used to curtail medical transitioning for minors. As the official summary of the Court ruling explains:
“Tennessee determined that administering puberty blockers or hormones to minors to treat gender dysphoria, gender identity disorder, or gender incongruence carries risks, including irreversible sterility, increased risk of disease and illness, and adverse psychological consequences. The legislature found that minors lack the maturity to fully understand these consequences, that many individuals have expressed regret for undergoing such treatments as minors, and that the full effects of such treatments may not yet be known. At the same time, the State noted evidence that discordance between sex and gender can be resolved through less invasive approaches.”
This law was challenged based on the Equal Protection Clause of the fourteenth amendment to the American constitution, with the plaintiffs arguing that the law discriminated on the basis of sex and “transgender status.”
Six out of nine justices upheld the ban, but for different reasons and with different emphases.
The Legal Theory in the Majority Opinion
The majority opinion largely side-stepped the substantive questions of the case and instead based its decision on the appropriate legal standard of review to judge the case.
In U.S. constitutional law, not all classifications are treated equally. Some—such as race-based classifications—are considered suspect and receive “strict scrutiny” from the courts. This means the government must show a compelling interest and prove the law is narrowly tailored to achieve that interest. Other classifications—such as those based on age or medical use—are subject only to a “rational basis review,” where the law merely needs to be rationally related to a legitimate government objective. A third category, such as sex-based classifications, receives “intermediate scrutiny,” a middle ground between deference to lawmakers and judicial review.
The plaintiffs argued that Tennessee’s law discriminated against them based on their sex and “transgender status.” Tennessee argued that any discrimination was based on age or medical use. So, the Court had to decide which characterization of the main issue was correct – and consequently which standard of review (rational basis or intermediate scrutiny) applied.
The majority is quick to side with Tennessee, saying there is no discrimination based on sex or “transgender status.” The law doesn’t prohibit certain medical treatments for members of just one sex. For example, it didn’t only ban boys from taking puberty blockers or girls from receiving cross-sex hormones. So, there is no sex discrimination. The law also doesn’t ban people who claim to be transgender from accessing puberty blockers or cross-sex hormones for reasons other than to medically transition (e.g. to treat precocious puberty). That is, the law doesn’t target “transgender” persons per se. And so, there is no discrimination on the basis of “transgender status” either.
Instead, the majority agreed that any discrimination in the ban on medical transitioning was based on age. The law only applied to minors (not adults), and it only banned puberty blockers and cross-sex hormones for the purpose of medical transitioning (but not other treatments). In these cases, the precedent was to apply only rational basis review to the case at hand. Using this standard, “where there exist ‘plausible reasons’ for the relevant government action, ‘our inquiry is at an end. SB1 [the ban on medical transitioning for minors] clearly meets this standard” (21).
Noting that there is much scientific uncertainty and low-quality evidence in this area (the opinion cites Finland, England, Sweden, and Norway’s review of the evidence and changes to clinical care), the Court found it entirely appropriate for government to restrict a medical procedure in the name of safeguarding the health and safety of a segment of its population.
In other words, the majority decided to defer to the elected branch of government on this one.
But certain justices within the majority had more to say.
The State’s Interest in Regulating Medical Transitioning – Justice Thomas’ Concurring Opinion
Justice Thomas, who signed onto the majority opinion, wrote a concurring opinion that focuses on the practice of medical transitioning for minors rather than what standard of review to use. He discusses the harms of both puberty blockers, cross-sex hormones, and surgery; the inefficacy of these treatments in relieving gender dysphoria; the unethical nature of these treatments, particularly the inability for minors to give informed consent; the increasing number of detransitioners; and the activist nature of the World Professional Association on Transgender Health (WPATH). Given all of this, he opines the state has good reason to ban medical transitioning for minors. He concludes his opinion by saying, “[E]xperts and elites have been wrong before — and they may prove to be wrong again” (23).
The Place of Gender Identity in Discrimination Law – Justice Barrett and Justice Alito’s Concurring Opinions
Although the majority opinion and Justice Thomas’ concurring opinion definitively settle the legality of the bans on medical transitioning for minors – the primary issue for the Let Kids Be campaign – there is another issue at stake in this case that will impact a far wider set of cases: whether gender identity or “transgender status” should be added to the list of classes of people who receive greater protections against discrimination. Should a transgender identity more analogous to race or age, sex or disability?
In the opinion of Justice Alito, this “important question has divided the Courts of Appeals, and if we do not confront it now, we will almost certainly be required to do so very soon.”
Rather than waiting for another day, Justice Barrett and Justice Alito decide to tackle this broader issue in this case.
Both justices agree that “transgender status does not qualify under our precedents as a suspect or ‘quasi-suspect’ class” (10). A “‘suspect class’ status is reserved for those groups whose members tend to ‘carry an obvious badge’ of their membership in the suspect class, which in part explains ‘the severity or pervasiveness of the historic legal and political discrimination against’ the group. Suspect class status is therefore generally inappropriate for ‘large, diverse, and amorphous’ groups that do not share ‘obvious, immutable, or distinguishing characteristics that define them as a discrete group’” (14).
American courts have only considered race (along with its corollaries, ethnic and national origin) to be an inherently suspect classification. Even sex, disability, age, and poverty have been dismissed as suspect classes. For example, sex is an important and, in some contexts, a legally relevant and legitimate classification. Disability and poverty are too large, diverse, or amorphous to capture an inherently suspect classification.
In the opinion of Justice Barrett, “transgender status” should not be considered a “suspect class” needing special protections against discrimination because persons who identify as transgender have not experienced discrimination de jure (in law). She concludes by saying
Because the litigants assumed that evidence of private discrimination could suffice for the suspect-class inquiry, they did not thoroughly discuss whether transgender individuals have suffered a history of de jure discrimination as a class. And because the group of transgender individuals is an insufficiently discrete and insular minority, the question is largely academic. In future cases, however, I would not recognize a new suspect class absent a demonstrated history of de jure discrimination (10-11).
In the last sentence, however, she leaves the door open to changing her mind in the future if new evidence came to light.
Justice Alito comes down more firmly on this question. Although many citizens, activists, and judges compare every form of discrimination to racism, Alito states that he does “not think that transgender status is sufficiently similar to race, national origin, or sex to warrant a higher level of scrutiny” (19). Persons who identify as transgender have not suffered a long history of discrimination in law. They have not been excluded from participation in the political process. They do not necessarily carry an obvious badge for their transgender identity. They are too diverse and amorphous a group (given claims that there are possibly an infinite number of genders). And even the parties in the case admit that transgender status is not an immutable characteristic.
And so, Justice Alito firmly contends that “transgender status” should not receive extraordinary legal protections. If adopted by the majority of the court, such a stand would have far reaching consequences far outside the issue of medical transitioning for minors.
What All This Means
First, Skrmetti signals to every American state that, if crafted the right way, the Supreme Court will uphold laws banning medical transitioning for minors.
Second, while declining to give “transgender identity” special protections against discrimination, almost every justice used terms laden with gender ideology (e.g. “transgender boy”) in their reasoning, giving tacit endorsement to core tenets of gender ideology. While the American executive branch has explicitly stated that there are only two sexes and rejected gender ideology, the judicial branch hasn’t been willing to go so far yet.
Third, while this decision is a victory in the battle to end medical transitioning for minors, the court didn’t squarely deal with whether there was discrimination against “transgender identity” or gender identity. Hopefully the Court will take a firmer stance on the issue in the future.
Skrmetti, of course, doesn’t apply anywhere in Canada and Canadian courts rarely look to legal opinions outside our country for guidance. But the growing body of academic studies, legal cases, and democratic laws that support limiting medical transitioning for minors should encourage Canadian governments to follow suit.