Democracy Affirmed: United States v. Skrmetti and the Return to Self-Government

The Supreme Court chose democracy in United States v. Skrmetti. By upholding Tennessee’s authority to protect minors from harmful gender-transition interventions, the Court emphatically reaffirmed that policymaking authority rests with the people and their elected officials—not the federal judiciary. That is a win not just for Tennessee, but for our constitutional structure more broadly.

This case came to the Court amidst a transgender-rights movement that has swiftly sought to impose unprecedented changes across America. That movement accelerated following the Supreme Court’s decision in Bostock v. Clayton County (2020), which read Title VII’s prohibition on sex discrimination to cover discrimination based on transgender status. Advocacy groups sought to force Bostock’s limited reasoning into other areas of law. That resulted in a barrage of lawsuits challenging longstanding sex-separation policies in areas like sports, bathrooms, prisons, and healthcare. The Biden Administration piled on, bypassing Congress and adopting administrative rules that read a variety of novel gender-identity mandates into federal laws that bind States. It also began intervening in constitutional challenges to state laws limiting risky and unproven gender-transition procedures for minors.

Tennessee became a target after a scandal at a major in-state hospital led lawmakers to restrict minors’ access to gender-transition drugs and surgeries. In doing so, Tennessee broke no new ground: Twenty-three other States and much of Europe maintain similar protections. Yet the Biden Administration intervened to challenge Tennessee’s law. After the Sixth Circuit permitted the law to take effect, the U.S. Solicitor General sought and obtained certiorari, telling the Supreme Court that “overwhelming evidence” and the “overwhelming consensus of the medical community” support gender-transition interventions for minors.

That narrative soon disintegrated. Shortly after the Court granted cert, Alabama’s parallel litigation revealed devastating evidence that policy preferences, not scientific evidence, drove the “medical” guidelines relied on by the federal government. A contributor to the World Professional Association of Transgender Health (WPATH) put it bluntly: “Our concerns, echoed by the social justice lawyers we spoke with, is that evidence-based review reveals little or no evidence and puts us in an untenable position in terms of affecting policy or winning lawsuits.” Rather than express caution about the lack of evidence, WPATH pressed forward with guidelines that ultimately abandoned all age minimums for pharmaceutical gender-transition interventions—in line with the requests of top Biden Administration officials.

Around the same time, the United Kingdom released its lauded independent review by Dr. Hilary Cass. The Cass Review found “remarkably weak evidence” supporting the putative benefits of gender-transition interventions. When asked about the Cass Review at oral argument, the ACLU’s attorney admitted that “there is no evidence . . . in the studies that this treatment reduces completed suicide”—thus jettisoning a leading talking point historically employed by those in support of broad gender-transition interventions for minors.

Ultimately, the Supreme Court did not need to pick sides in the shifting medical debate. The Equal Protection Clause does not commission the Court as the nation’s “ex officio medical board.” It prohibits discrimination, and the Court found none.

The Court’s decision, authored by Chief Justice Roberts, largely turned on its classification analysis. Tennessee’s law, the Court determined, imposes classifications based only on age and medical use.  Age because “[h]ealthcare providers may administer certain medical treatments to individuals ages 18 and older but not to minors.” And medical use because “[h]ealthcare providers may administer puberty blockers or hormones to minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence.” With strikingly clear logic, the decision succinctly pinpointed exactly how the law operates.

The task then became wading through the claims of sex and transgender discrimination. The Court started by reaffirming that the “mere reference to sex” has never created a sex classification subject to heightened review, a point that is “especially” true in the medical context. It then turned to the flaw at the heart of the plaintiffs’ attempt to conjure a sex-based line—the notion that Tennessee’s law “prohibits certain treatments for minors of one sex while allowing those same treatments for minors of the opposite sex.” That argument, the Court recognized, “contort[s] the meaning of the term ‘medical treatment.’” As the Court explained, using puberty blockers to address physical conditions like precocious puberty is not the same treatment as using puberty blockers to address the psychological distress associated with gender dysphoria. The same goes for the use of testosterone and estrogen. The drugs are used for different purposes, often with different dosages, and with very different effects on the body. With the plaintiffs’ same-treatment fallacy debunked, the Court correctly concluded that Tennessee’s law does not make any medical treatment available to a boy but not a girl (and vice versa). So the law “does not turn on sex.”

The Court likewise rejected the notion that Tennessee’s law classifies based on transgender status. In doing so, the Court clarified that the group-based inquiry from Geduldig v. Aiello (1974) remains the proper framework for analyzing the classification drawn by a law. Tennessee’s law, Skrmetti observed, “divides minors into two groups: those who might seek puberty blockers or hormones to treat the excluded diagnoses, and those who might seek puberty blockers or hormones to treat other conditions.” The first group “includes only transgender individuals; the second group, in contrast, encompasses both transgender and nontransgender individuals.” The law thus does not draw a line based on transgender status.

In the absence of a sex or transgender classification, the Court applied the “relaxed” rational-basis inquiry. Under that standard, the Court declined to “second-guess” the lines drawn by Tennessee’s elected officials, noting the States’ “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”

The Court’s analysis of Tennessee’s law was clear, logical, and almost surgical in its precision. But its approach leaves unanswered some questions arising in other contexts. Because the Court found no transgender classification, it did not have to expressly decide (1) whether Bostock’s reasoning applies in the Equal Protection context, or (2) whether transgender persons constitute a quasi-suspect class. The concurring opinions by Justices Thomas, Alito, and Barrett forcefully explain why the answer to both of those questions is no.

In my view, though, Skrmetti’s group-based classification test may mitigate the importance of both issues—and others seem to agree. Faithfully applied, the Court’s reasoning confirms that many recent transgender-based challenges to sex separation in fact involve no transgender classification at all (something Tennessee and other states have been arguing for some time). Take bathrooms. Sex-separated bathroom policies differentiate based on sex, not transgender status. Whether transgender or not, a biological boy cannot enter the girls’ bathroom. And whether transgender or not, a biological girl cannot enter the boys’ bathroom. That is, both transgender and nontransgender students fall into “both groups”—the group allowed and the group excluded. In the language of Skrmetti, that means there is a “lack of identity” between transgender status and the groups created by sex-separation policies. Nor are such policies likely to be deemed a “mere pretext[] designed to effect an invidious discrimination against transgender individuals,” given their lengthy historical pedigree and the legitimate privacy concerns at play. The same reasoning would apply in other intimate-facilities contexts, as well as in sex-separated sports.

Whatever the implications, Skrmetti reinvigorated a foundational principle: “The Equal Protection Clause does not resolve” every “disagreement[]” over disputed policy questions. Nor does it give the Court “license to decide them as [it] see[s] best.” Rather, the Constitution largely leaves “questions regarding . . . policy to the people, their elected representatives, and the democratic process.”

That holding triggered predictable pushback from Court critics. For nearly a century, advocacy organizations have asked the federal judiciary, under the guise of constitutional interpretation, to enshrine policies rejected by the democratic process.  As Robert Bork aptly put it, “[t]here are those, and they are many, who prefer results to everything else, including democracy and respect for the legitimacy of authority.” The Court’s refusal to entertain judicial policymaking has left alarmist commentators to denounce Skrmetti as a rollback of civil rights, furthering their narrative of a “runaway” Supreme Court. These attacks get things backwards. It’s the creation of novel, controversial rights with no sound basis in the Constitution that harms the Court’s legitimacy and draws it into political controversy, not adherence to the strictures of the Constitution.

The Supreme Court long ago recognized that “fail[ing] to acknowledge even [the] most basic biological differences” separating the sexes, “risks making the guarantee of equal protection superficial.” The Court’s rejection of that misguided effort here protected a core truth of our system of government: Political battles over controversial policy belong in the political branches, not the courts. Far from a failure of justice, Skrmetti marks a decisive victory for democracy.