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    December 04, 2024

    United States v. Skrmetti

    Transgender Rights

    Does Tennessee’s Ban on Puberty Blockers and Hormone Therapy to Facilitate a Minor’s Sex Transition Violate the Equal Protection Clause?

    Case at a Glance

    In March 2023, Tennessee adopted a law that prohibits health-care providers from delivering puberty blockers and hormone therapy to transgender minors to facilitate their transition to another sex. At the same time, the law specifically allows health-care providers to deliver puberty blockers and hormone therapy to treat a minor’s congenital defect, precocious puberty, or other conditions. Tennessee contends that the law advances its interests in the health and safety of minors in the state and in protecting the integrity and ethics of the medical profession.

    United States v. Skrmetti
    Docket No. 23-477

    Argument Date: December 4, 2024
    From: The Sixth Circuit

    by Steven D. Schwinn, University of Illinois Chicago School of Law, Chicago, IL

    Introduction

    Transgender minors, their parents, and a doctor sued, arguing that Tennessee’s ban violates the Fourteenth Amendment’s Equal Protection Clause. The United States intervened on behalf of the plaintiffs under a federal law that authorizes the government to intervene in a private equal-protection case. The district court granted a preliminary injunction halting the state’s enforcement of the measure, but the Sixth Circuit Court of Appeals reversed.

    Issue

    Does the Equal Protection Clause prohibit a state from banning health-care providers from delivering puberty blockers and hormones to facilitate a minor’s transition to another sex?

    Facts

    In March 2023, Tennessee adopted a law that bans certain medical treatments for transgender minors to facilitate their transition to another sex. In particular, the law, Senate Bill 1 (SB1), prohibits health-care providers from “prescribing, administering, or dispensing any puberty blocker or hormone” to “[e]nabl[e] a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to “[t]reat[] purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Tenn. Code Ann. §§ 68-33-102(5)(B) and 68-33-103(a)(1). (SB1 also prohibits surgical procedures for the same purposes, but that ban is not at issue in this case.) SB1 defines “sex” as the “immutable characteristics of the reproductive system that define the individual as male or female, as determined by anatomy and genetics existing at the time of birth.” Tenn. Code Ann. § 68-33-102(9).

    SB1 says that Tennessee has a “compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty,” and in prohibiting treatments “that might encourage minors to become disdainful of their sex.” Tenn. Code Ann. § 68-33-101(m). The law’s findings also describe alleged risks associated with using puberty blockers and hormones to treat minors with gender dysphoria.

    Importantly, SB1 does not ban the provision of puberty blockers or hormones for any other purpose. Indeed, SB1 specifically exempts those treatments for “a minor’s congenital defect, precocious puberty, disease, or physical injury.” Tenn. Code Ann. § 68-33-103(b)(1)(A).

    SB1 specifies that health-care providers who violate the law are subject to civil penalties of $25,000 for each prohibited treatment, professional discipline, and potential civil liability in private lawsuits.

    Three transgender minors, their parents, and a Tennessee doctor who treats adolescents with gender dysphoria sued the state and state officials responsible for enforcing SB1, arguing that the law violates the Equal Protection Clause, among other things. The United States intervened in support of the plaintiffs under a federal statute that authorizes the government to intervene in private equal-protection lawsuits “if the Attorney General certifies that the case is of general public importance.” 42 U.S.C. § 2000h-2. (As a result, the government is listed as the petitioner in the case caption. The plaintiffs are listed as the respondents in support of the petitioner.)

    The district court granted the plaintiffs’ motion for a preliminary injunction. The Sixth Circuit Court of Appeals reversed. This appeal followed.

    Case Analysis

    The government argues that the Court should apply heightened scrutiny in reviewing SB1 for two reasons. For one, the government says that SB1 discriminates based on sex: “Put simply, an adolescent assigned female at birth cannot receive puberty blockers or testosterone to live as a male, but an adolescent assigned male at birth can.” For another, the government contends that SB1 discriminates by transgender status. It asserts that “transgender individuals satisfy all of the hallmarks of a quasi-suspect class,” including that they are subject to discrimination, that their status is unrelated to their ability to contribute to society, that they are “a discrete and identifiable minority,” and that they “have not been able to meaningfully vindicate their rights through the political process in much of the country—as evidenced by the recent wave of laws targeting transgender individuals in Tennessee and other States.”

    Because the Sixth Circuit did not apply heightened scrutiny (it applied rational basis review), the government argues that the Court should remand the case to allow the Sixth Circuit to apply heightened scrutiny in the first instance.

    But if the Court itself applies heightened scrutiny, the government argues that SB1 fails, because the ban is not substantially related to an important government interest. The government says that the state’s interest in preventing minors from becoming “disdainful of their sex” is not an important government interest, because it’s based on mere stereotype. And the government claims that SB1 is not substantially related to the state’s interest in protecting the health and welfare of adolescents. In particular, the government asserts that the state “ignored the benefits of gender-affirming care, substantially overstated the risks of that care, and adopted a categorical prohibition that is both severely overinclusive and severely underinclusive when viewed in light of those risks.”

    The plaintiffs make substantially similar arguments and add that SB1 fails even rational basis review. According to the plaintiffs, that’s because SB1 is so far removed from the state’s asserted interests that “it is impossible to credit those interests” as even legitimate.

    Tennessee counters that the Court should not apply heightened scrutiny. The state says that SB1 does not classify by sex; instead, it merely distinguishes between “minors seeking drugs for gender transition and minors seeking drugs for other medical purposes.” Moreover, the state says that “boys and girls are not similarly situated for purposes of receiving testosterone and estrogen,” and that heightened scrutiny therefore does not apply. Tennessee contends that SB1 similarly does not discriminate by transgender status, and even if it did, “this Court should not get back in the fraught business of creating suspect classes.”

    The state argues that SB1 easily meets rational basis review, and even satisfies heightened scrutiny. Tennessee contends that it has “compelling” interests (even more than what heightened scrutiny requires) in the health and safety of minors in the state and “in protecting the integrity and ethics of the medical profession.” The state says that SB1 substantially advances these interests, especially under the deference that the Court should grant to SB1, given the “medical and scientific uncertainty” involved.

    Significance

    Despite the state’s claim about “medical and scientific uncertainty,” health-care providers have a long history of safely prescribing puberty blockers and hormone therapy for adolescents and adults with gender dysphoria and other conditions. For example, providers have prescribed puberty blockers to treat gender dysphoria for 20 years and precocious puberty for more than 30 years. They have prescribed hormone therapy to treat gender dysphoria in adults for at least 60 years and in adolescents for at least 20 years.

    According to leading medical organizations, research shows that these treatments for adolescents reduce depression, anxiety, and suicidal ideation. Several studies show that hormone therapy is associated with reduced suicide attempts and significant improvement in quality of life.

    Still, Tennessee is far from alone in banning these treatments. In the last three or four years, state legislatures have adopted a wave of prohibitions on gender-affirming care for minors. Today, at least 22 states ban such care.

    The parties argue the case under traditional equal protection doctrine. As a threshold issue under this approach, the Court will need to determine whether SB1 classifies by sex or transgender status. Recall that just four years ago the Court ruled that an employer who fires an employee “merely for being gay or transgender” unlawfully discriminates “because of such individual’s sex” in violation of Title VII. Bostock v. Clayton County, Georgia, 590 U.S. 644 (2020). Bostock does not necessarily foretell the result here, though, for two reasons. First, this case involves the Equal Protection Clause, not Title VII, and the Court could rule that they operate differently. Next, Tennessee argues that SB1’s classification is based on age (minor status) and on whether a person seeks puberty blockers or hormone therapy to transition sexes, or for some other purpose. If the Court adopts Tennessee’s approach, SB1 doesn’t classify based on sex or transgender status at all.

    Finally, note what this case does not involve: a parent’s right to obtain medical treatment for their minor children under the Due Process Clause. The plaintiffs raised this issue below; the district court ruled in their favor, but the Sixth Circuit reversed. The government did not seek review on this issue in its writ of certiorari.

    Steven D. Schwinn

    Professor of law at the University of Illinois Chicago School of Law

    Steven D. Schwinn is a professor of law at the University of Illinois Chicago School of Law and coeditor of the Constitutional Law Prof Blog. He specializes in constitutional law and human rights. He can be reached at 312.386.2865 or [email protected].

    PREVIEW of United States Supreme Court Cases 50, no. 3 (November 28, 2022): 42–48. © 2022 American Bar Association 

    Attorneys for the Parties

    • For Petitioner United States
      • Elizabeth B. Prelogar, Solicitor General (202.514.2217)
    • For Respondents Jonathan Thomas Skrmetti, et al.
      • James Matthew Rice (615.741.3491)
    • For Respondents in Support of Petitioner L.W., By and Through Her Parents and Next Friends, Samantha Williams and Brian Williams, et al.
      • Chase Bachrach Strangio (212.549.2500)

    Amicus Briefs

    In Support of Petitioner United States and Respondents in Support of Petitioner

    • 17 Healthcare Providers

      • Amelia Temple Redwood Starr (212.450.4000)

    • 164 Members of Congress

      • Conor Denali Tucker (213.439.9400)

    • American Academy of Pediatrics and Additional National and State Medical and Mental Health Organizations

      • Debra Jean Veta (202.662.5294)

    • American Bar Association

      • John Patrick Elwood (202.942.5992)

    • American Historical Association, Organization of American Historians, LGBTQ+ History Association, and Historian Scholars

      • Kara Nicole Ingelhart (312.503.3770)

    • American Psychological Association and Other Leading Mental Health Organizations

      • Jessica Ring Amunson (202.639.6023)

    • California

      • Julie Michelle Veroff (415.693.2000)

    • Clinical Practice Guideline Experts

      • Eugene E. Stearns (305.789.3280)

    • Constitutional Accountability Center

      • Brianne Jenna Gorod (202.296.6889)

    • Disability Rights Education & Defense Fund

      • Claudia Center (510.644.2555)

    • Dr. Erica E. Anderson, PhD, and Dr. Laura Edwards-Leeper, PhD

      • Samantha Lee Chaifetz (202.799.4082)

    • Families with Transgender Children

      • Peter T. Barbur (212.474.1000)

    • Family Law and Constitutional Law Scholars

      • Brian Robert Matsui (202.887.8784)

    • NAACP Legal Defense & Educational Fund, Inc.

      • Samuel Spital (212.965.2200)

    • National Women’s Law Center and Legal Scholars

      • Catherine Emily Stetson (202.637.5491)

    In Support of Respondents Jonathan Thomas Skrmetti, et al.

    • Abigail Martinez

      • Kelly J. Shackelford (972.941.4444)

    • Alliance Defending Freedom

      • John J. Bursch (616.450.4235)

    • American College of Pediatricians, et al.

      • Gene Clayton Schaerr (202.787.1060)

    • Independent Women’s Law Center

      • James Mahoney Burnham (602.501.5469)

    • Kentucky, Arkansas, Indiana, Alaska, Florida, Georgia, Idaho, Iowa, Kansas, Louisiana, Mississippi, Montana, Nebraska, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Virginia, West Virginia, and Wyoming

      • Matthew Franklin Kuhn (502.696.5300)

    • Liberty Counsel

      • Mathew D. Staver (202.289.1776)

    • State Legislators, American Family Association, Inc., and AFA Action, Inc.

      • Trey Christian Dellinger (662.821.2024)

    • Women’s Liberation Front

      • Elspeth Benten Cypher (202.507.9475)

    Let me know if you'd like more names or need further refinements! 😊