Earlier this month, one of those bills from Tennessee, SB1, came before the Supreme Court. And next June, the Justices will determine whether the law violates the 14th Amendment’s Equal Protection clause. US v. Skrmetti is the first case before the court to directly consider this question for trans youth, but it's not as straightforward as determining if this law discriminates against them. by Vivian McCall There is a widespread political fantasy that transgender people are so central to American life that they swayed the outcome of a US Presidential election and turned millions into authoritarian apologists. The most obsessive rightwingers believe trans people control American universities, corporations and language itself, justifying the more than 1,000 bills to restrict trans health care and civil rights as retribution for an imagined social hijacking. Earlier this month, one of those bills from Tennessee, SB1, came before the Supreme Court. And next June, the Justices will determine whether the law violates the 14th Amendment’s Equal Protection clause.  US v. Skrmetti is the first case before the court to directly consider this question for trans youth, but it's not as straightforward as determining if this law discriminates against them. SB1, passed in March 2023, prohibits doctors from prescribing trans children puberty blockers, hormone replacement therapy (HRT), or gender-affirming surgery, while allowing those same treatments for intersex children, children starting puberty early or late, and medical conditions other than gender dysphoria. The state argued it had a compelling interest in “encouraging minors to appreciate their sex, particularly as they undergo puberty.” The petitioners—trans children, their parents, their doctors, the American Civil Liberties Union and the federal government—contend transgender people fall into a quasi-suspect class. They allege the state ignored the proven benefits of gender-affirming care and that the law itself is making a distinction on the basis of those who “appreciate” and disdain their sex.  A lower district court sided with them, and granted a preliminary injunction temporarily preventing the law from taking effect. The conservative Sixth Circuit Court of Appeals reversed this decision, and an appeal brought the case before the court last Wednesday. The most important question the Justices must answer is what the “standard of review” should be in this case, a legal term for how skeptical courts should be when evaluating laws that treat and classify groups differently. Tennessee draws the line between kids who take hormones and puberty blockers to treat gender dysphoria and those prescribed the same drugs for reasons including early puberty and intersex conditions. Imara Jones, creator of the nonprofit multimedia publication Translash, was in the courtroom last Wednesday. Not one to sugarcoat, she still emerged hopeful.  “Every time they tested various arguments, they quickly realized they were in a cul-de-sac that always brought them back to sex,” she says. “And I think it reinforced the main argument from the Solicitor General and ACLU.” Choosing the Arena Courts evaluate Equal Protection cases on three levels of judicial scrutiny: “Suspect,” or strict scrutiny for cases involving race, religion, national origin, and lack of citizenship, “quasi-suspect” or middle-tier scrutiny in gender and sex-based cases, and “rational basis” or minimum scrutiny, when no “suspect” class applies. The higher the level of scrutiny, the more a government must do to prove its law is both necessary and in the interest of the state. Conversely, under “rational basis” review, a state just needs to prove the government’s action is rationally related to a legitimate interest. That’s the reason this question of “tier” matters. Under heightened scrutiny, Tennessee has more to prove, and their body of evidence is lacking. Tennessee argues SB1 does not make a sex classification; instead, they argue, they’re making an age distinction unrelated to sex. Earlier this month, Justice Samuel Alito seemed swayed by this argument, recalling his statements in Dobbs v. Jackson Women’s Health Organization, the 2022 case that overturned Roe v. Wade, and the 1974 case, Geduldig v. Aiello, which found that states could regulate medical procedures related to biological sex. Solicitor General Elizabeth Prelogar, the official who represents the federal government before the Supreme Court, held that while those cases only implicated sex, Tennessee’s law made explicit distinctions. “That doesn’t apply in any relevant respect here,” she said. “These aren’t drugs that are limited to one sex or another. Both males and females alike have been prescribed puberty blockers, hormones, testosterone, estrogen. They produce the same physical characteristics … no matter if your sex is male or female.” Elana Redfield is a Federal Policy Director at the Williams Institute, a LGBTQ public-policy research center at the University of California, Los Angeles. She says Prelogar’s point could potentially resonate with Justice Neil Gorsuch. But it’s hard to know for sure. The normally chatty justice didn’t ask a single question during oral arguments. There’s hope for a repeat of the unexpected 5-4 decision in Bostock v. Clayton County, the first and only Supreme Court case to consider transgender rights, where Gorsuch sided with the liberals and authored a majority opinion about employment discrimination that grounded trans-friendly policy in Joe Biden’s federal agencies. “An individual’s homosexuality or transgender status is not relevant to employment decisions,” he wrote. “That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” However, Bostock can’t be treated as a bellwether: Skrmetti is not a Title VII case; The court that delivered the narrow ruling on employment discrimination is a shade redder than it was in 2019; And Gorsuch has not tucked a trans flag under his robes.  In Bostock, Gorsuch addressed employers worried the court’s decision would sweep “beyond Title VII to other federal or state laws that prohibit sex discrimination,” including sex-segregated bathrooms, locker rooms and dress codes. “But none of those other laws are before us today,” he wrote. That limited ruling frees Gorsuch and the rest of the conservative bench to rule differently here. Whatever Gorsuch comes to will be rigid and textualist. While his logic in past cases would suggest applying heightened scrutiny, there’s no evidence he is sympathetic to the petitioners. Meanwhile, Justice Amy Coney Barrett addressed the unlikely possibility of creating a new suspect class for trans people, but said to her knowledge, before the laws of the last three years, and Trump’s military ban during his first term, there was no history of discrimination under government-enacted laws.  But modern concepts of transness do not always apply to a historical framework. Chase Strangio, a staff attorney at the ACLU and the first trans person to argue before the Supreme Court, mentioned a history of laws forbidding cross dressing, and a number of old statutes that lumped gay and trans people together.  Even recent historical figures from early in the gay rights movement we’d think of as transgender today wouldn’t have described themselves as such. Even if the evidence of de jure discrimination convinces Barrett, a new suspect class has not been named in decades. It’s unlikely she’d rule in favor of creating it.   The 1 Percent D Dangaran, a board member of the National Trans Bar Association, has faith that the court will apply intermediate scrutiny in this case, but worries the conservative Justices will throw their weight behind the argument that gender-affirming care harms people who later detransition, which Justice Kavanugh didn’t think the court could ignore. Children and adults who seek trans healthcare want trans healthcare, and study after study shows it improves their general well-being. For this reason, few change their minds. However, detransition is a real, and deeply personal experience the right misrepresents as a singular political argument against trans healthcare. While a small percentage of people detransition because they regret taking hormones or undergoing surgery, many stop transitioning because they lack social support, simply experience a shift in their self-conception, or are pausing before re-transitioning later.  The right—and a minority of vocal detrans people who claim to speak for the community—have worked to draw a false equivalence between their experiences and the experiences of many more people who benefit from trans care (gender-affirming surgeries, for example, have extremely  low regret rates of about 1%.) Republicans have not scrambled to ban similar procedures such as elective, risk-reducing mastectomies for cis people, although regret rates are five to 14 times higher, or breast augmentations, which between 5% and 9% of patients regret, according to a literature review in the peer-reviewed American Journal of Surgery. The same study found regret rates for body contouring dance between 10% and 33%. Other studies show up to 30% of patients regret knee surgeries and prostatectomies. About 19% of people regret bariatric surgery for weight loss.  But here we are: Supreme Court justices and the journalists sculpting their views are circling the wagons over a 1% regret rate. Tennessee Attorney General Jonathan Skrmetti has gone as far to say that the medical consensus on gender affirming care is “fake.” None of them are doctors, so it’s not surprising they’d take medical information out of context. Anti-trans bills reinforce this bias by making it easier for former patients to sue doctors who provided gender-affirming care. What is it about this small risk that induces the urge to slam the brakes on medical care that works for the vast majority of people who receive it? The news media seem to see the narratives around abortion regret, a real experience, as the anti-abortion propaganda that it is. Mainstream news organizations are not devoting limited resources to investigate how those experiences might inform the legitimacy of a procedure that has medical consensus. But many do spend an unusual amount of time and effort questioning gender-affirming care. The specter of gender regret haunts differently. Ironically, the focus suggests living in a body intolerably marred by gendered characteristics is a unique horror. The very thing gender-affirming care seeks to remedy.  “When the facts are truly weighed, that should not be an exceedingly persuasive justification for this broad categorical ban that covers both those who want it, and that small percentage of people who may actually feel harmed by the care they receive,” Dangaran said. Similarly, Tennessee is relying on bunk scientific claims to discredit gender affirming care that would crumple under examination. Totally circumventing questions about suspect classes and equal protection, Kavanaugh argued that it’s not the court’s job to evaluate the evidence or resolve medical and policy questions. (As Strangio pointed out, the court didn’t hesitate to apply heightened scrutiny in a case involving medical judgements when it ruled churches’s right to freely practice religion superseded the public health risk of spreading COVID-19 at large gatherings.)  The Swing(ish) Votes Justices Alito, Clarence Thomas, Kavanaugh, and Chief Justice John Roberts seemed most sympathetic to Tennessee's arguments, while questions from Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson indicated they saw the connection between the precedent established in Bostock, and the dangerous precedent the court could set in this case. Brown Jackson noted a parallel to the “scientific” arguments made in Loving v. Virginia, in which the court evaluated if Virginia’s “anti-miscegenation” laws banning interracial marriage had any rational basis.  If the court approaches this case by saying “there are lots of good reasons for this policy and who are we as the Court to say otherwise,” Jackson said, “I'm worried that we're undermining the foundations of some of our bedrock equal protection cases.” Barrett and Gorsuch are the wildcards, and only one has to side with the conservatives for majority. This could come down to an ideological decision that sides with the state over the precedent of sex discrimination and what many would see as an objective reading of the Constitution. The court could conservatively kick it back to the lower court, or determine the reasoning in Bostock applies. That would be strong support for liberal interpretations of Section 1557, the Affordable Care Act’s anti-discrimination statute, cases on sports and other cases on gender-affirming care. Those cases are coming. A victory for the petitioners in this case would be narrow at best, and nobody should expect Obergefell, when people married hours after the decision ran down the courthouse steps. These laws are scattershot across the country, with different technicalities built into each one. Twenty-six states have restricted gender-affirming care for minors. While most are roughly similar to Tennessee, and this case has the potential to invalidate them, there are other ways of limiting care, like cutting funding and increasing liability. On the other hand, the petitioners did not take up a number of other related legal claims, including a parent’s right to choose the best care for their child and first amendment claims.  Win or lose, this ain’t over yet.