Right to Treatment

The Supreme Court's decision this week could have sweeping consequences for Transgender rights, the 14th Amendment, and the future of judicial activism

In one of its most landmark decisions in recent history, the Supreme Court voted to uphold Tennessee Senate Bill 1 — a bill that effectively bans puberty blockers and hormone therapy from being used to treat gender dysphoria in minors. Transgender issues have been front and center in the American political arena; whether it be issues of involvement in collegiate sports, acceptable bathroom usage, or even draconian military service bans, pundits spend a large amount of time arguing about the virtues of expanding our understanding of gender and sexuality. In United States v. Skremetti, the Supreme Court took a decisive stand on one of these issues: what is the suspect classification of transgender individuals in the United States? While this issue does not get the spotlight on Fox News that transgender swimmers do, I would argue that this question affects transgender Americans much more consequently than any other issue.

By siding with the state of Tennessee in barring gender-affirming care from minors with gender dysphoria, the Supreme Court rejects the status of transgender individuals as being a suspect class, effectively making any future argument regarding 14th Amendment equal protection rights much more difficult. In a political environment dominated by right-wing conservatism and transphobia, the Supreme Court has stranded transgender Americans in a legal status of limbo.

This deep dive into the opinions, backgrounds, and rationales behind this landmark SCOTUS decision will develop a case regarding how politically right-wing arguments regarding transgender healthcare have found their ways onto the bench of the Supreme Court; how by choosing not to answer what the legal status of transgender Americans is, the Supreme Court has green-lit further discrimination and prejudice; and how the future of judicial activism in general looks especially grim.

In a moment that echoes the failures of the court’s past, Robert's court is setting us further back in our fight for gender equality.

The Case At Hand

United States v. Skrmetti strikes at the heart of the “gender-affirming care for minors” debate. This specific instance can be traced back to March of 2023, when the Tennessee House of Representatives passed a bill which prohibited the use of medical treatments on minors for gender dysphoria. The Tennessee Senate shortly after passed bill SB1, which reinforced the ban — this bill was met with scorn from numerous medical professional associations, as well as the Biden Department of Justice who issued an injunction in the District Court of the Middle District of Tennessee to stop this bill from going through. Soon after, a handful of transgender teenagers, along with their families and a doctor sued the state of Tennessee for violating the Equal Protections Clause.

The case had a brief stint in the US Court of Appeals for the Sixth Circuit, where the major point of contention remained to be the violation of the Fourteenth Amendment’s Equal Protection Clause, arguing that the bill very formally discriminates based on the gender status of the plaintiffs involved. By fully developing and understanding the role that the 14th Amendment plays in this case, we can further theorize as to how this case will affect the plight of transgender rights in the future.

Equal Protection

The Equal Protection Clause of the Fourteenth Amendment is one of the most consequential clauses in the Constitution. It guarantees that no state can deny a person equal protection under the law, effectively banning any form of discrimination on an inherent quality. The Equal Protection Clause was a key factor in ending segregation, legalizing gay-marriage, and strengthening the ability for our institutions to uphold our fundamental rights; the consequences of Brown v. Board of Education can be found in every legal avenue where discrimination, prejudice, and other forms of oppression take form.

With regards to the Supreme Court’s decision this week, the government argued that SB1 violated the Equal Protections Clause by discriminating on the basis of sex. The government was able to argue on this point because the bill does not unilaterally ban the use of hormone therapy and gender-affirming care to minors in Tennessee. Rather, it bans the use only in the case where the patient suffers from gender dysphoria; if a minor in Tennessee had another type of disorder where use of hormone therapy is recommended, they may seek that in the state of Tennessee. The government argues that this distinction inherently rests on the basis of “sex,” and therefore a heightened level of scrutiny is warranted. Tennessee states that the claim that the bill discriminates on the basis of sex is unfounded, arguing that the bill only disallows a very specific medical procedure.

But in taking that an individual that suffers from gender dysphoria and requires hormone therapy (as recommended by the vast majority of medical professional associations) is recognized under a certain group, does that not maintain that the level of discrimination here isn’t on “sex,” but on “gender identity?” And if SB1 does discriminate based on “gender identity” should a level of intermediate scrutiny not be placed on this case?

While the Supreme Court sides with Tennessee in their insinuation that SB1 does not violate the Equal Protections Clause because it discriminates based on some form of “gender identity” and not sex, precedence shows that the Supreme Court does not view the two any separately. Look no further than Bostock v. Clayton County (2020), which effectively made gender identity a protected class.

Bostock v. Clayton County

In one of SCOTUS’ most consequential cases regarding LGBT rights in recent history, Justice Neil Gorsuch delivered an opinion that protected employees from being discriminated against on the basis of their sexual orientation or gender identity. Up until then, Title VII did not cover discrimination based on sexual orientation, meaning that gay, lesbian, and transgender workers were not constitutionally protected from workplace discrimination. This case effectively meant that discrimination-based issues related to sexual orientation or gender identity would trigger “intermediate scrutiny,” placing it on the same level as discrimination based on sex.

In his majority opinion, Justice Gorsuch argued that discrimination based on sexual orientation or gender identity is also discrimination “because of sex,” directly placing it under the Title VII umbrella. Gorsuch writes:

“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids. Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. But the limits of the drafters' imagination supply no reason to ignore the law's demands. Only the written word is the law, and all persons are entitled to its benefit.”

One has to seriously wonder what happened in the five years between this being written and Gorsuch’s vote alongside other conservative members of the court in their decision in Skrmetti. It is quite obvious that SB1’s key discrimination can be found in the reason behind seeking hormone therapy. SB1 clearly states that minors cannot seek these types of treatments if their reasoning for doing so is “gender dysphoria,” a very real and serious condition that thousands of teenagers face every year.

If it pleases the court to act like the key issue in Tennessee’s bill is not “gender identity,” then they should feel free to do so. But it clearly goes against recent precedent that gender identity is in fact a protected class and that any allegation of discrimination wherein must trigger intermediate scrutiny. The court found that in this case, where the law essentially discriminates against individuals who fall in the “gender identity” bucket, those who seek equal protection may not find it here.

The issue with this is that it sets the precedent for “facial neutrality,” or writing bills in ways that on paper, do not discriminate on a protected class status, but in action most certainly do. The written text in SB1 does not outwardly say that transgender teenagers are barred from getting hormone therapy; the written text in SB1 applies a parallel ban on a sufficient quality that one must have in order to be included in the “gender identity” bucket. SB1 gets as close to the line of discrimination on the basis of gender identity as possible without crossing that line.

By siding with Tennessee, the Supreme Court has signaled to the rest of the country that laws can discriminate against transgender individuals, as long as they do so without outwardly stating so. This means that if you word your discrimination well-enough, you can get away with withholding gender-affirming care, or rejecting women from healthcare initiatives, or even hiring off of the basis of race. While these issues should, in theory, be found unconstitutional under the Equal Protections Clause, they manage to skirt the regulations meant to restrain them.

Thomas and the “Medical Consensus”

Justice Clarence Thomas is considered to be one of, if not the most, conservative Supreme Court justices in American history. Justice Thomas has led the charge to overturn Roe v. Wade, hand more legislative powers to the President, and strike down any attempts to pass common-sense gun control. While Thomas says that his beliefs stem from a genuine place of traditional jurisprudential philosophy, it has become increasingly clear that Thomas takes into account and acts out of his own personal conservative social value system. In his concurring opinion on Skrmetti, he chooses not to focus on the suspect status of transgender individuals. He does not focus on the lack of due process that parents of transgender Tennesseans are afforded once the state legislature decides that a certain type of treatment is illegal. Thomas instead chooses to repeat often-debunked and disproven Republican-driven talking points about the “safety” of transgender care, even going so far as to directly contradict doctors he himself considers experts.

In his concurring opinion, Thomas writes:

“Many prominent medical professionals have declared a consensus around the efficacy of treating children’s gender dysphoria with puberty blockers, cross-sex hormones, and surgical interventions, despite mounting evidence to the contrary. They have dismissed grave problems undercutting the assumption that young children can consent to irreversible treatments that may deprive them of their ability to eventually produce children of their own. They have built their medical determinations on concededly weak evidence. And, they have surreptitiously compromised their medical recommendations to achieve political ends.”

If you were to read this quote alone, you would expect this to be written by perhaps the governor of Tennessee or a freshman Freedom Caucus member of the House. You do not expect to see this type of rhetoric from a Supreme Court judge who decides on cases on the basis of their constitutionality and adherence to precedent. To say that he is overstepping his role, however, is not the only issue with Thomas’ opinion. It is also factually wrong.

Thomas does not explain what “mounting evidence” there is to the contrary. In the decades-long research expeditions taken on by unbiased and impartial medical organizations, it is safe to say that they have done their due diligence in order to discover the best methods for treating gender dysphoria. They are very explicit when they assert that these methods of treatment must be treated with the utmost care and prospects for these forms of therapy are heavily screened and made to go through numerous hoops. Thomas operates off of the Fox News-built assumption that teenagers can go on hormone therapy with ease; this mode of operation was not built by genuine reporting and understanding of the method of treatment, rather by a right-wing media environment that demonizes transgender individuals.

Following the Supreme Court’s decision in Skrmetti, numerous medical professional organizations have come out in anger and disappointment as to the future of transgender healthcare in the United States. The Endocrine Society, American College of Obstetricians and Gynecologists, American Psychiatric Association, American Academy of Pediatrics, American College of Physicians, and many others have all come out to say that the Tennessee bill puts transgender teenagers at grave risk.

Justice Thomas might want to reconsider his examination that these organizations have “compromised their medical recommendations to achieve political ends.” In this episode of social conservatism staining the court, it seems like the only compromise to achieve political ends is being done by Justice Thomas himself.

Scrutiny

The debate revolving around the most efficacious way of treating gender dysphoria is a difficult one. Healthcare issues regarding minors is always a tumultuous topic, especially when the agency for major decisions rests on an individual who is not fully developed. Transgender issues do not only exist within the confines of a doctor’s office, but are hotly debated in the national media, often leading to a culture of gender skepticism at best and transphobia at worst. One cannot easily separate the larger cultural conversation regarding transgenderism with the specific discussion surrounding the allowance of healthcare for minors with gender dysphoria.

But we do not need to look to the Supreme Court for answers to these questions. The Supreme Court is not tasked with assessing the virtues of transgenderism or the best method of dealing with gender dysphoria in teenagers. The Supreme Court is tasked with ensuring that bills from state legislatures do not discriminate based on the tenants left in the Fourteenth Amendment. In this case, the Supreme Court failed at viewing Skrmetti through the lens of intermediate scrutiny.

Justice Sotomayor, in delivering her dissenting opinion, notes how the availability for state legislatures (as well as the federal government) to fully discriminate against transgender individuals has been made much easier via the majority opinion in Skrmetti. She writes:

“The Court’s willingness to do so here does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight.”

Justice Sotomayor further develops this position, noting how transgender individuals are already being discriminated against by the Trump administration, writing:

“In any event, those searching for more evidence of de jure discrimination against transgender individuals, need look no further than the present. The Federal Government, for example, has started expelling transgender servicemembers from the military and threatening to withdraw funding from schools and nonprofits that espouse support for transgender individuals.”

The Robert’s Court has made it a staple of their tenure to push back against judicial activism, stating that any form of “legislating from the bench” goes against their duty as mere interpreters of the Constitution rather than legislators. But by siding with Tennessee, they have green-lit discrimination based on gender identity and transgender status. Under an administration such as this one, where transgender individuals are scapegoated and lied about, it is clear to see the dangerous precedent that the Supreme Court has allowed.