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The Supreme Court on Wednesday upheld Tennessee’s ban on “gender affirming care” for minors in a highly anticipated ruling assessing a constitutional challenge to Senate Bill 1. SB1 prohibits any medical procedure for the purpose of “Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” and “Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” In a 6-3 opinion by Chief Justice Roberts, joined in full by Justices Thomas, Gorsuch, Kavanaugh, and Barrett, and in part by Justice Alito, the Court held that Tennessee’s law prohibiting gender medical interventions for minors did not violate the Equal Protection Clause and therefore did not require satisfaction of heightened scrutiny judicial review. Instead, the Court determined that Tennessee was required only to satisfy rational basis review and demonstrate that SB1 was a rational means of pursuing its legitimate governmental interest in protecting minors from experimental treatments, irreversible bodily harm, and possible regret.

The Court ruled that Tennessee had clearly met this “relatively relaxed standard.”

In the underlying litigation, three minors, their parents, and a doctor brought a pre-enforcement challenge, arguing that the law violated the Equal Protection Clause. The United States intervened after then-Attorney General Merrick Garland certified that the case was of “general public importance.” The district court concluded that the plaintiffs lacked standing to challenge the law’s ban on “sex transition” surgery but would likely prevail in their challenge to the ban on drugs. It held that transgender individuals constituted a quasi-suspect class, that SB1 discriminated on the basis of sex and transgender status, and that SB1 was unlikely to survive intermediate scrutiny.

The Sixth Circuit reversed, holding that the Equal Protection claim was unlikely to succeed and that SB1 did not classify based on sex. It further determined that “transgender individuals” were not a suspect class deserving of heightened scrutiny review, and that the law would survive rational basis scrutiny. The Supreme Court affirmed the Sixth Circuit ruling, holding that neither of SB1’s classifications—the age of patient seeking the drugs, and the medical use for which those drugs were intended—was based on sex. Indeed, the law treated both sexes equally. The Court noted that SB1’s prohibition on using certain drugs for certain medical purposes (i.e., to treat gender incongruence or dysphoria) applied equally to all minors, regardless of their underlying sex.

In addition, the Court held that SB1 did not classify based on “transgender status,” and it therefore did not address whether this category amounted to a “suspect or quasi-suspect class.”

In a concurring opinion, Justice Barrett, joined by Justice Thomas, noted that while the Court had failed to undertake that analysis, she would find that transgender individuals do not constitute a suspect or quasi suspect class. She argued that “transgender status is not marked by the same sort of ‘obvious, immutable, or distinguishing characteristics’ as race or sex,” and that the “transgender population” was not a discrete group but diverse, large, and amorphous. To classify that group as a suspect class, she wrote, would “require courts to oversee all manner of policy choices normally committed to legislative discretion.”

The Court also distinguished its 2020 decision, Bostock v. Clayton County, in which it held that firing an employee for being gay or “transgender” violated Title VII’s prohibition on discrimination because of their sex. This was because, as Justice Gorsuch then wrote, “homosexuality and transgender status are inextricably bound up with sex.” But the Skrmetti Court declined to consider whether Bostock applied beyond Title VII to Equal Protection claims and determined that its reasoning would not have altered its conclusion in the case regardless.

Noting that legislative bodies have wide latitude regarding the treatment of minors, the Court concluded with an implicit nod to its holding in Dobbs v. Jackson Women’s Health that the Court's role was “only to ensure that [the law] does not violate [the Equal Protection Clause.] Having concluded that it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.”

Justice Thomas separately concurred, arguing more fully why Bostock’s reasoning should not be imported from Title VII to the Equal Protection Clause, and explaining the “problems with appealing and deferring to the authority of the expert class” when evaluating the constitutionality of statutes. Discussing the World Professional Association of Transgender Health’s (WPATH) standards for “gender medicine,” Justice Thomas noted that “WPATH itself recognizes that evidence supporting the efficacy of puberty blockers, cross-sex hormones, and surgical intervention for treating gender dysphoria in children is lacking.” He continued that the case “carries a simple lesson: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct.”

Justice Alito concurred in the judgment, writing separately to stress that the Court’s discussion of why SB1 did not constitute a sex-based classification was unnecessary. He noted that he would simply have held that “neither transgender status nor gender identity should be treated as a suspect or ‘quasi-suspect’ class.”

Justice Sotomayor dissented, joined by Justice Jackson and in part by Justice Kagan, arguing that the “[t]his case present[ed] an easy question.” Rather than argue that SB1 treats males and females differently, however, she more broadly asserted that the law was a sex-based classification because it referred generically to a “minor’s sex.” Relying on the court’s decision in Bostock, Sotomayor insisted that SB1 was a sex-based classification because it “necessarily deprives minors identified as male at birth of the same treatment it tolerates for an adolescent identified as female at birth (and vice versa).”

Justice Kagan penned her own dissent, agreeing with Justice Sotomayor that SB1 should be evaluated under the heightened scrutiny standard but writing separately to stress that she took “no view on how SB1 would fare” under that particular standard.

Still pending at the Supreme Court and scheduled for consideration on Friday, June 20, are two related cases: L.W. v. Skrmetti and Doe 1 v. Commonwealth of Kentucky ex rel. Cameron. Both are equal protection and parental rights challenges to state laws banning so called “gender-affirming care” for minors, and both have been rescheduled for conference more than 13 times.

If the Court grants certiorari, vacates, and remands both decisions to the lower courts for reconsideration in light of Wednesday’s decision in United States v. Skrmetti, those courts will decide the question of whether the Fourteenth Amendment due process parental right to direct a minor child’s medical care also encompasses the right to secure experimental “gender-affirming care.”