Not Only a Threat to Trans Rights

[justaprogressive]

On Wednesday, the U.S. Supreme Court ruled that the state of Tennessee did not violate the Constitution’s equal protection clause when it enacted a law forbidding transgender minors from accessing medical care that their parents and physicians agree is appropriate for them. The majority opinion, written by Chief Justice John Roberts for the whole six-member right-wing bloc, insists that a state law forbidding treatment to “enabl[e] a minor to identify with, or live as, a purported identity inconsistent with the minor’s biological sex” is not a form of sex classification—even though the statute allows the same medications to be used by young people who are considered male that it disallows for those considered female, and vice versa.

By the logic of justices in the majority, neither they nor the lower federal courts are obliged to consider the Tennessee law with the kind of “intermediate” or “heightened” scrutiny that has been developed by courts since the 1970s for assessing when a sex-based distinction in the law is problematic, and when it’s OK. Since there is no sex classification present, Chief Justice Roberts avers, the state must prove only that it had a “rational basis” for its anti–trans youth medical care law. Ergo, it, and the laws in 26 other states limiting youth access to transgender medical care, don’t offend the Constitution and may stand.

The Skrmetti ruling is a blow to trans rights and to all rights that might be considered in the light of the “equal protection” clause of Section 1 of the Constitution’s 14th Amendment. It is one of those “Happy Pride!” and “Joyous Juneteenth!” gifts that no one gives like the Roberts Court’s conservative majority, especially since the passing of Justice Ruth Bader Ginsburg. (If you want a recap of the oral argument in the case, see my reporting from December 2024.)

Here are four problems with Skrmetti that lurk beneath the surface and might be hard to suss out from the dense and self-important judicial prose.

The good news is that the majority didn’t overturn any old precedents about sex-based constitutional adjudication, which Ginsburg played such a major part in fashioning, first as an advocate for the ACLU before the Court and then as a justice. Skrmetti won’t let the states implement laws that establish different drinking ages for women and men, or that sort of thing. However, the Court did this by defining away the possibility of a sex-based constitutional claim for a transgender young person, their family, or their doctor, even in the case of an egregiously sex-obsessed state law.

https://prospect.org/justice/2025-06-20-threat-to-trans-rights-supreme-court/