There has been an increasingly heated debate across the nation over the right to access transgender healthcare, particularly for children. For a while, more and more states have been trying to restrict access of those under 18 to trans-affirming care, leading to lawsuits.
It all culminated this past Wednesday, when the U.S. Supreme Court handed down a landmark decision upholding a Tennessee law that bans certain medical treatments for transgender minors. It ruled that the law does not violate the Constitution’s Equal Protection Clause, a decision that will uphold many similar bans in other states.
Background on the Law(s)
In 2023, Tennessee joined a wave of states enacting laws that make it impossible for minors to get gender-affirming care, even with the consent of the minor and their parents. The law, known as Senate Bill 1 (SB1), prohibits doctors from prescribing puberty blockers or hormones to anyone under 18 if the purpose is to help the minor live as a gender different from their sex assigned at birth, or to treat distress arising from that incongruence.
Just a few weeks after the Tennessee law passed, the state’s northern neighbor followed suit: Kentucky passed a nearly identical law (SB 150), even over the governor’s veto.
Lawsuits Launched Against the Laws
Soon after SB1 was signed into law, three transgender minors in Tennessee, their parents, and a doctor challenged the law in federal court. They claimed that it violates the Equal Protection Clause of the Fourteenth Amendment by discriminating on the basis of sex and transgender status. They also argued that the law infringed on a parent’s fundamental right to direct the medical care of their child, which is protected by the Due Process Clause of the Fourteenth Amendment. They sought a preliminary injunction to prevent the law from taking effect, presenting evidence that gender-affirming medical care is medically necessary, supported by major medical organizations, and that denying such care would cause severe psychological and physical harm to transgender youth. The U.S. Department of Justice also intervened because they saw the case as a matter of public importance (this was, of course, under the Biden administration; it’s unlikely that the current DOJ would intervene on behalf of the plaintiffs).
While that was happening, parallel legal action was underway in Kentucky. Seven transgender minors and their parents filed a lawsuit challenging SB150. The legal arguments were very similar to those of the Tennessee plaintiffs: they argued that the law violated their rights under the Equal Protection and Due Process Clauses of the Fourteenth Amendment. They emphasized that these treatments were medically necessary for some transgender youth and that every major medical organization in the United States recognized them as safe and effective when used according to clinical guidelines. In both cases, the minors were already receiving or expected to need gender-affirming medical care, and their parents and doctors argued that these treatments were medically necessary and supported by major medical organizations. The main differences were that the Kentucky case didn’t include any doctors as plaintiffs, and the Kentucky plaintiffs weren’t challenging the surgery ban (only the puberty blockers and hormone bans).
Lower Court Decisions
In late June of 2023, both Kentucky and Tennessee district courts granted preliminary injunctions blocking enforcement of the state laws banning puberty blockers and hormone therapy for transgender minors (and of surgeries in Tennessee) to all people in the state (not just the plaintiffs). Each court applied strict scrutiny to the laws (rather than rational basis review) and found that the states’ justifications for the bans were not sufficiently persuasive or narrowly tailored, especially since the same treatments were allowed for other medical conditions.
A few months later, the Sixth Circuit consolidated the Kentucky and Tennessee cases and issued a single opinion that addressed both states’ laws together. It reversed the preliminary injunctions that had been given by each district court, allowing the laws in each state to take effect. The Sixth Circuit rejected intermediate scrutiny and instead applied rational basis review to both laws, finding that both Kentucky and Tennessee had rational reasons for their laws.
The plaintiffs, together with the Biden DOJ, petitioned the Supreme Court to review the Sixth Circuit’s decision. The Court granted limited certiorari: They agreed to take up only the question of whether SB1 violates the Equal Protection Clause, declining to opine on the Due Process claims. Last December, SCOTUS finally heard oral arguments. On June 18 of this year, they weighed in on the merits of the long-awaited case.
SCOTUS Upholds the Bans
Given how contentious the topic of transgender rights is — both in the eyes of the public and in jurisprudence — it shouldn’t be a surprise that SCOTUS was divided. But given the conservative tilt of the current Court, it also shouldn’t be surprising that the transgender plaintiffs did not prevail.
Chief Justice Roberts authored the majority opinion that upheld both Tennessee and Kentucky bans. The decision was along ideological lines, with Justices Thomas, Gorsuch, Kavanaugh, and Barrett joining. Justice Alito joined in part. They held that the state laws do not violate the Equal Protection Clause because they are not subject to heightened scrutiny and because they satisfy rational basis review. Since the Supreme Court opinion focuses on Tennessee’s SB1 (and only indirectly impacts Kentucky’s SB150), we will be talking about that law alone.
Plaintiffs Argue for Strict Scrutiny
The case really turned on the question of which level of scrutiny was appropriate. There are two types of “heightened” scrutiny used by courts to evaluate the constitutionality of laws or government actions that may infringe upon individual rights or suspect classes: strict and intermediate. Strict scrutiny applies to laws that classify on the basis of race, national origin, or infringe fundamental rights. Such laws are upheld only if they are narrowly tailored to serve a compelling government interest. Intermediate scrutiny applies to sex-based classifications and requires that the law serve important governmental objectives and use means substantially related to those objectives. Rational basis review is the default, much lower standard for laws that do not classify on a suspect or quasi-suspect basis.
The transgender plaintiffs had argued that SB1 warrants the heightened strict scrutiny because it draws explicit lines based on sex and discriminates against transgender individuals, who qualify as a “quasi-suspect” class. The law prohibits medical treatments for minors if the purpose is to allow the minor to “identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “distress from a discordance between the minor’s sex and asserted identity.”
The plaintiffs argue that on its face, the law is a sex-based classification because its very application necessarily depends on the individual’s sex assigned at birth. For example, a medication may be permitted for a minor assigned male at birth but prohibited for a minor assigned female at birth, depending on the purpose.
The plaintiffs argued that the law specifically targets transgender minors by prohibiting treatments intended to allow a minor to live in a manner inconsistent with their sex assigned at birth, which they say is an explicit attempt to discourage transgender identification. Therefore, the plaintiffs conclude, heightened scrutiny is called for, and the law doesn’t survive under that standard.
Majority Finds No Sex Stereotyping…
The Court did not consider whether SB1 would survive strict scrutiny, though, because SCOTUS shut that train down before it got there. The Court came to a different conclusion on the first step of the analysis, finding that strict scrutiny was not warranted. The Court found that SB1 classifies based on age (minors vs. adults) and medical use (permitted for some diagnoses, not others). The Court pointed to precedent holding that “[c]lassifications that turn on age or medical use are subject to only rational basis review.”
But what about the fact that SB1 references sex and prohibits treatments for “gender dysphoria, gender identity disorder, or gender incongruence”? Doesn’t that necessarily imply that the law is making a sex-based classification? Well, not in the minds of the SCOTUS majority. They pointed out that SB1 does not prohibit a treatment for one sex but allow it for the other: “SB1 prohibits healthcare providers from administering puberty blockers or hormones to any minor to treat gender dysphoria, gender identity disorder, or gender incongruence, regardless of the minor’s sex; it permits providers to administer puberty blockers and hormones to minors of any sex for other purposes” (emphases added).
In other words, for the majority, mere reference to sex is not enough to trigger heightened scrutiny, especially in the medical context where sex-related distinctions are sometimes medically relevant. In their eyes, the application of SB1 turns on the diagnosis and purpose of treatment, and “the plaintiffs’ allegations of sex stereotyping are misplaced.”
…And No Discriminatory Purpose
Since the majority found that SB1 classified “neither covertly nor overtly based on sex,” it does not trigger heightened review unless it was motivated by an “invidious” (i.e., intentionally harmful or discriminatory) purpose. They apparently didn’t find any such discriminatory purpose in the legislative history. “And regardless,” they wrote, “the statutory findings on which SB1 is premised do not themselves evince sex-based stereotyping.” Are they correct?
In the very text of the bill for SB1, the Tennessee legislature was not shy about explaining exactly what they were trying to do. They wrote: “This state has a legitimate, substantial, and compelling interest in promoting the dignity of minors,” “encouraging minors to appreciate their sex, particularly as they undergo puberty, and “protecting the integrity of the medical profession, including by prohibiting medical procedures that are…immoral, experimental…or that might encourage minors to become disdainful of their sex.”
You might interpret all that to mean that the Tennessee legislature was trying to make kids conform to their sex assigned at birth, or at least elevate cisgender status over trans. The SCOTUS majority interpreted it differently. They found that these statements, in context, reflected the legislature’s interests in protecting minors’ health and welfare, concerns about the risks and unknowns of the medical treatments in question, and the risk of regret or harm.
Once the majority found that heightened scrutiny was not triggered, the next step of the analysis was to apply rational basis review to the law. Under that low standard, a law will be upheld as long as “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” The Court does not judge the wisdom, fairness, or logic of the law, but only ensures that it is not arbitrary or irrational. The Court felt is wasn't necessary to get into the plethora of reasons that Tennessee offered to justify the law, because this standard is so deferential that any one of them would suffice. Needless to say, SB1 was upheld.
Bostock Does Not Apply
Lawyers and other Supreme Court watchers might be thinking: “but what about Bostock?” That famous 2020 SCOTUS case held that firing employees for being transgender violates Title VII's sex discrimination prohibition. The Court ruled that discrimination against transgender people is inherently based on sex. Bostock did not address strict scrutiny — it was a statutory interpretation case, not a constitutional analysis (which would implicate Equal Protection).
Plaintiffs had argued that Bostock should apply, but the majority quickly nipped that in the bud by pointing out that Bostock only applied in the context of Title VII (the part of the Civil Rights Act of 1964 that prohibits employment discrimination based on race, color, religion, sex, or national origin). The majority emphasized that their interpretation of “because of sex” in Bostock applies only to employment discrimination cases brought under Title VII, and does not automatically govern how courts interpret “sex discrimination” under the Equal Protection Clause or other laws.
If the Court had chosen to apply Bostock, the outcome might have been very different.
Other Opinions
Justice Alito agreed that SB1 should be upheld, but while the majority held that SB1 does not classify on the basis of transgender status, Justice Alito found there was a “strong argument” that SB1 does classify on that ground. Even so, he said that transgender status should not be treated as a suspect or quasi-suspect class and does not warrant heightened scrutiny. Instead, Alito argued, only laws dealing with racial discrimination or discrimination against women should receive that standard.
Liberal Justices Sotomayor, Kagan, and Jackson dissented. They argued that SB1 obviously discriminates on the basis of sex and transgender status because it prohibits certain medical treatments for transgender minors but allows the same treatments for cisgender minors, making sex and gender nonconformity the basis for unequal treatment.
Related Resources:
- Bostock v. Clayton County Case Summary (FindLaw's U.S. Supreme Court Insights)
- Sexual Orientation and Gender Identity Discrimination (FindLaw's Learn About the Law)
- The Law On Healthcare for Transgender Youth Across America (FindLaw's Law and Daily Life)
