US v. Skrmetti – The Five-Alarm Fire We’ve Been Warning About

Photo Credit: People For The American Way

For more than the last two years, we have been warning about the imminent threat to the rights of women, girls and the LGBTQIA+ community posed by US v Skrmetti, a case involving a constitutional challenge of the Tennessee law banning gender affirming care for minors. As expected, the US Supreme Court (“SCOTUS”) recently issued its much anticipated its decision, upholding the ban and delivering a devastating blow to transgender kids and their families.

But what many do not realize (as it is not being discussed or covered by media) is the Skrmetti decision impacts not just transgender youth, but the entire LGBTQIA+ community, women, girls, and even the medical profession.

Here is a general overview of the key takeaways from the Skrmetti decision:

• In upholding the gender affirming care ban for minors, SCOTUS has given states carte blanche to enact similar laws, making it far more difficult for transgender kids to access medically necessary care.  

• SCOTUS has indicated it will soon make it nearly impossible for transgender people, regardless of age, to establish discrimination under the 14^th Amendment.

• SCOTUS also intends to make it nearly impossible for women to establish a sex-based discrimination claim under the 14^th Amendment.

• To circumvent well-established medical evidence and further a political/ideological agenda, SCOTUS explained a party need only present a differing point of view to ensure SCOTUS defers to state legislatures.  

Now, the deeper dive.

It is dense as there is much to unpack in the majority opinion, as well as the concurring opinions of Justices Barrett, Thomas, and Alito, and the dissenting opinions of Justices Sotomayor, Jackson, and Kagan.

But given all that is at stake, it is imperative that everyone understand precisely what is going on. I urge you to read it in its entirety and contact me at nvbates@shatteringglass.org if you have any questions.

And please share this far and wide! We soon will be holding a presentation on the Skrmetti decision. Please sign-up for email updates at shatteringglass.org for additional details.

Background—Judicial Standards Of Review

To appreciate the sheer significance of the Skrmetti decision, one must have a basic understanding of the three standards of review courts have created and apply to 14^th Amendment Equal Protection claims—strict scrutiny, intermediate scrutiny and rational basis. As noted by Justice Sotomayor in her Skrmetti dissent, “the level of constitutional scrutiny courts apply in reviewing state action is enormously consequential.”

The highest standard of review is strict scrutiny, which applies to suspect classes (race and national origin) and is an incredibly difficult burden for the government to overcome. The lowest standard of review is rational basis. Somewhere in between is intermediate scrutiny, which applies to “quasi-suspect” classifications (sex). Unless a classification is suspect or “quasi-suspect,” the rational basis standard of review applies, and great deference is given to the government.

To illustrate the consequence of the applicable standard of judicial review, a 2004 study quantified a plaintiff’s likelihood of success in establishing a discrimination claim when each of the standards is applied. The study concluded a plaintiff has a 73% chance of winning if strict scrutiny applies, 47% chance with intermediate scrutiny, and 20% chance with rational basis. In reality, and as is demonstrated in Skrmetti, it is, in fact, nearly impossible to establish a discrimination claim if rational basis applies.

The Decision

In Skrmetti, the question presented to SCOTUS was whether the law discriminates against transgender youth in violation of the Equal Protection Clause of the 14th Amendment. The children, their parents, and the US claimed the ban on gender affirming healthcare for minors constitutes a sex-based classification that cannot satisfy intermediate scrutiny, the test applied to sex-based discrimination claims. In the alternative, the plaintiffs argued that transgender individuals constitute a quasi-suspect class in their own right and, accordingly, their claims are subject to intermediate scrutiny.

The plaintiffs’ arguments relied on SCOTUS’s 2020 decision in Bostock v. Clayton County, which held discrimination based on sexual orientation or gender identity constitutes sex discrimination under Title VII (employment-related claims). However, SCOTUS expressly declined to rule on whether Boystock applies beyond sex-based discrimination claims under Title VII.

Justice Roberts delivered the opinion of the Court and completely punted on the issue of sex discrimination, the only question raised on appeal, delaying resolution for a future date. Instead, the Court ruled that the Tennessee gender affirming care ban for minors includes classifications based on age (minors versus adults) and medical use (treating gender dysmorphia versus treating other conditions), and not sex. Such non-sex classifications are subject to rational basis review, meaning the law will be upheld if there are any reasonably conceivable facts that could support a rational basis for the law. A standard nearly impossible to overcome as great deference is given to the government.

Here, the Court found Tennessee’s stated concerns, including irreversible infertility, immaturity, and adverse psychological consequences, provided a rational basis and upheld the gender affirming care ban for minors. In doing so, SCOTUS ignored the medical opinions of numerous prominent US medical groups and put greater weight on health authorities in European countries.   

SCOTUS refused to rule on whether the transgender individuals constitute a quasi-suspect class entitled to intermediate scrutiny for two reasons. First, the age classification does not turn on transgender status as the Tennessee gender affirming care ban only applies to transgender minors, not adults. Second, the Court relied on the Geduldig decision, referenced in Dobbs to negate any potential equality argument to support abortion, and noted that transgender minors may receive the hormone therapy so long as it is not for treating gender dysmorphia.

Understanding The Key Takeaways

As has become the case with SCOTUS, the actual holding in Skrmetti is but a small portion of the full story.

The Impact on Transgender Kids and Their Families

The Skrmetti decision will have a devastating impact on transgender minors and their families. Medical experts, including the American Medical Association, have determined such care is critical to the physical and emotional wellbeing of transgender youth. Yet the Skrmetti decision gives states carte blanche to enact laws prohibiting gender affirming care for minors. Like abortion care, families living in states with bans will be forced to travel or move to access gender affirming care IF THEY HAVE MEANS. And if they don’t, . . .

On a macro level, Skrmetti serves to add fuel to the fire, strengthening the animus towards the entire transgender community and dividing the country at the expense of this already marginalized group.

The Decision Impacts The Entire Transgender Community

Although SCOTUS punted on the 14^th Amendment sex-based discrimination issues, some of the Justices made clear how those issues soon will be decided.

In their concurring opinions, Justices Alito, Barrett, and Thomas addressed the unanswered questions, which they thought should have been included in the Court's decision. The three concluded transgender persons do not constitute a quasi-suspect class, although Justice Alito employed a different reasoning to reach the same decision. Justice Alito also stated transgender status and gender identity are not equal to sex, which is limited to biological men and women defined at birth. Justice Alito and Justice Thomas also concluded the Bostock decision should not be applied outside the limited context of Title VII employment discrimination cases.

Given the clues provided by the Justices, there is little doubt that SCOTUS will soon rule (1) transgender status is not a suspect or “quasi-suspect” class, (2) Boystock is limited to Title VII employment discrimination cases, and (3) 14^th Amendment Equal Protection claims for discrimination against transgender individuals are subject to rational basis review.

What does that all mean? SCOTUS will defer to state legislatures, making it virtually impossible for transgender individuals, regardless of age, to establish a 14^th Amendment discrimination claim.

Justice Barrett went so far as to note “Beyond the treatment of gender dysphoria, transgender status implicates several other areas of legitimate regulatory policy – ranging from access to restrooms to eligibility for boys’ and girls’ sports teams.”  

Like clockwork, within days of the Skrmetti decision, West Virginia again asked SCOTUS to uphold its law prohibiting transgender participation in girls’ sports. To do so, SCOTUS will be required to answer the sex-based discrimination questions it dodged in Skrmetti – whether (1) Bostock applies beyond Title VII employment cases, making transgender status a sex classification, and (2) transgender individuals constitute a quasi-suspect class, requiring the court to apply intermediate scrutiny to 14^th Amendment Equal Protection claims.

SCOTUS, at lightening speed for a court that takes its own sweet time, has already agreed to hear the case, along with a similar case from Idaho. As you may recall, SCOTUS sat on the request to hear the Skrmetti case for months, kicking the can down the road to ensure the case was heard after the 2024 elections.

If SCOTUS is so eager to hear the West Virginia and Idaho cases, you are probably wondering why they didn’t just decide the issues in Skrmetti.

Simple.

The politicians have succeeded in making transgender participation in girls' and women’s sports a hot button, 90/10 issue (meaning 90% of people do not approve of transgender participation), despite the fact that such participation rarely occurs. People will be celebrating the outcome of the decision and fail to notice what SCOTUS will be doing beyond its immediate decision to harm the rights of not only the transgender community, but also women and girls. The very people they will be purporting to protect.

Equal Protection For Women and Girls Remains In Grave Danger

Although SCOTUS punted on the issues related to sex discrimination, there was an unusual, hyper-focus on sex discrimination and the applicable standard of review in the concurring and dissenting opinions.

In his concurring opinion, Justice Alito reiterated that SCOTUS “has never equated classifications based on sex with classifications based on race or national origin” for purposes of Equal Protection under the 14th Amendment. Admitting, along with Justice Barrett, that the Court makes it easier (and always has made it easier) to discriminate against women. Interestingly, Justice Alito does not explain why there is a lower standard for sex discrimination, even though he likens sex to race and national origin (with immutable characteristics) and uses that as the basis for his conclusion that transgender persons do not constitute a quasi-suspect class entitled to intermediate scrutiny.

But nothing is more telling than the roadmap provided by Justice Thomas. In a footnote, he noted:

I assume for purposes of this opinion that government sponsored discrimination triggers [intermediate] scrutiny under the Equal Protection Clause. As I have noted elsewhere, however, ‘it is possible that the Equal Protection Clause does not prohibit discriminatory legislative classifications’ at all. . . . And, even if does, the Court routinely applied rational-basis review to sex discrimination cases until the 1970s, . . . which might suggest the application of heightened scrutiny to such claims is a departure from the from the Fourteenth Amendment’s original understanding. But, the parties have not briefed the issue, so I do not pass upon it here.

And there it is. The most transparent call to-date for those opposed to gender equality to bring the case that will end the ability to establish 14th Amendment sex discrimination claims. Insight into the discussions the Justices had about Skrmetti. And the most likely reason the concurring and dissenting opinions were hyper-focused on sex discrimination and the applicable standard of review in a case that held there was no sex-based classification.

As we have been warning, it is nearly certain SCOTUS will soon apply rational basis to 14th Amendment sex discrimination claims, making it virtually impossible to establish sex discrimination. Why else would Justice Sotomayor, who emphasized the critical significance of the applicable standard of review, go out of her way to justify the nearly 50-year application of intermediate scrutiny to sex-based discrimination? A lower standard of review that makes it easier to discriminate against women. Clearly, it is about to get worse.

This leads to the conclusion that Justice Roberts intentionally wrote the opinion of the Court, focusing on the age and medical treatment classifications to defer ruling on the applicable standard of review for 14^th Amendment sex discrimination claims. Say the West Virginia and Idaho laws banning transgender participation in girls' sports. A case that will uphold the bans, and 90% of people will be focused on the “win,” particularly given the increased animus towards the transgender community resulting from the Skrmetti decision. And amidst their celebration, they are far more likely to miss the evisceration of 14^th Amendment Equal Protection for women and girls.

The Medical Community Should Be Alarmed

Another component of the Skrmetti decision that is being overlooked is the complete disregard of science and the opinions of prominent medical professionals.

In its opinion, SCOTUS highlighted the differing positions of the States of California and Alabama (obviously reflecting political/ideological positions) as evidence of the “rising debates regarding the relative risks and benefits” of gender affirming care. To conclude that Tennessee had a rational basis for its gender affirming care ban for minors, the Court focused heavily on the recent opinions of European health professionals, particularly those in the United Kingdom, as well as restrictions on gender affirming care enacted in more than 20 US states. Justice Roberts acknowledged “this case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field.”

However, the Court’s majority opinion most certainly focused on the policy and not the science. That was made clear in a separate concurring opinion authored by Justice Thomas, who stated:

The Court rightly rejects efforts by the United Staes and the private plaintiffs to accord outsized credit to claims about medical consensus and expertise.

As noted by Justice Sotomayor in her dissent, the expert opinions the majority rejected in favor of ideological positions are those of major American medical associations, including the American Academy of Pediatrics, American Medical Association, American Psychological Association, and American Academy of Child Adolescent Psychiatry, all of which agree that hormones and puberty blockers are appropriate and necessary to treat gender dysmorphia.

These are hardly “so called experts,” who have “relied on questionable evidence, and have allowed ideology to influence their medical guidance,” as Justice Thomas claims. Talk about the pot calling the kettle black. Justice Thomas and the majority have sent the loud and clear message that a party need only present a differing point of view to circumvent well-established medical evidence to further political/ideological goals.

This practice was recently employed with mifepristone, which is used for chemical abortions. In April, the conservative think tank, Ethics For Public Policy, issued a report that called into question the safety of mifepristone. Unlike credible medical studies, the report did not undergo a formal external peer review before publication and was, in fact, rejected by medical journals. Nonetheless, the FDA is reexamining the safety of mifepristone based on the “new evidence” contained in the report. In light of Skrmetti, there is little doubt this “junk science” will be afforded great weight when the various mifepristone-related cases make their way back to SCOTUS.  

The question is how far will this go? Can politically-motivated junk science be used to ban mandatory vaccines? Stem cell research? Other medical and scientific research politically conservative and/or religious groups find objectionable?

Conclusion

Obviously, the Skrmetti decision could have been worse. SCOTUS could have eviscerated sex-based Equal Protection for women, girls, and the LGBTQIA+ community. It didn’t—YET! But it’s coming. And soon.

Please share this blog far and wide and contact me at nvbates@shatteringglass.org if you have any questions.   Again, we soon will be holding a presentation on the Skrmetti decision. Please sign-up for email updates at shatteringglass.org for additional details.