A GOP Supreme Court will now decide the fate of transgender Americans

It’s hard to imagine a worse time for the Supreme Court to hear United States v. Skrmetti, arguably the most important trans rights case the justices have ever heard. Skrmetti asks whether discrimination against transgender people can violate the Constitution, a question the Court has never answered.

A decision against the trans plaintiffs in Skrmetti, moreover, could potentially upend the entire legal framework protecting Americans from gender discrimination of all kinds.

A Court with a 6-3 Republican supermajority plans to hear Skrmetti in early December, less than a month after an election in which, according to the Washington Post, GOP campaigns “spent at least $215 million on network ads that paint trans people as a menace to society.” President-elect Donald Trump made anti-trans rhetoric a key part of his campaign, promising, for example, that if elected, he would keep “transgender insanity the hell out of our schools, and we will keep men out of women’s sports.” 

That is to say: This case arrives at a moment in which the Republican Party is all in on animus toward transgender people. And, while there are strong legal arguments supporting the pro-trans rights position in Skrmetti, this panel of justices has shown great deference to the general mood of the Republican Party in past decisions, like when they ruled that Trump may use his official presidential powers to commit crimes once he returns to office. If the Court’s Republican majority is determined to reach an anti-trans result, they likely won’t let something as trivial as “the law” discourage them.

Still, at least two of the Court’s Republicans have shown unexpected sympathy toward LGBTQ litigants in the past. In Bostock v. Clayton County (2020), the Court ruled that a longstanding ban on sex discrimination in employment prohibits discrimination on the basis of sexual orientation and gender identity — declaring that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Bostock was authored by Justice Neil Gorsuch, a Trump appointee, and joined by Chief Justice John Roberts, who is also a Republican. So, if Roberts and Gorsuch hold to the views they expressed in Bostock, the two of them plus the three Democratic justices should be enough to extend at least some constitutional protection to trans people.

What’s at stake in Skrmetti?

The specific issue in Skrmetti is a Tennessee law prohibiting trans youth from receiving medical treatments such as puberty blockers and hormone therapy. About half of states have laws targeting transgender health care, but Tennessee’s is among the strictest.

While the Court has never held specifically that discrimination against transgender people violates the Constitution, it has long held that sex discrimination does violate the Constitution, ruling that “all gender-based classifications” are presumptively unconstitutional in United States v. Virginia (1996).

Tennessee’s law trips over itself to classify young patients based on their gender. It declares that the law’s purpose is to “encourag[e] minors to appreciate their sex” and to prevent young people from becoming “disdainful of their sex.” The law also denies certain medical treatments to patients based solely on their sex. A patient who was assigned male at birth may have testosterone prescribed by a doctor, but someone assigned female at birth may not have that treatment.

Again, the Supreme Court has already said that all gender-based classifications are constitutionally dubious. “All” means “all.”

Will that be enough to persuade these justices to strike down Tennessee’s law? The honest answer is, “Who knows?” It’s not like legal texts and Supreme Court precedents play no role in these justices’ decision-making, and they sometimes even hand down a decision like Bostock that cuts strongly against the Republican Party’s policy preferences. 

But there are two reasons to be pessimistic about Skrmetti. One is that after the recent election, anti-trans voices within the Court are likely to be emboldened, and pro-trans voices may feel like they have limited political capital. The other is that, while Tennessee’s law clearly discriminates on the basis of sex, the Court has only held that laws that do so should be presumed to be unconstitutional unless — as the Court put it in Virginia — there’s an “exceedingly persuasive justification” for the law.

It is possible that this Court will hold that a ban on trans health care meets this bar.

What current law says about “sex” discrimination, explained

Many of federal law’s core safeguards against sex discrimination emerged in the 1960s and 1970s. Beginning in the ’60s, Congress started to pass laws banning sex discrimination in various venues — Title VII of the Civil Rights Act of 1964, for example, prohibits such discrimination in employment. Then, in the 1970s, the Court began to place constitutional limits on the government’s ability to discriminate on the basis of sex.

The most significant of these cases, Craig v. Boren (1976), established that any government action that classifies people based on sex is presumptively unconstitutional. Again, in Virginia, the Court stated that “a party seeking to uphold government action based on sex must establish an ‘exceedingly persuasive justification’ for the classification.”

The federal appeals court that heard Skrmetti attempted to get around Craig and Virginia by pointing to the Supreme Court’s decision in Geduldig v. Aiello (1974). But that decision read Geduldig far too broadly.

Briefly, Geduldig concerned a state-run insurance program that provided benefits to some California workers with disabilities, but not to workers whose disabilities arose out of a pregnancy. The Supreme Court rejected the argument that this exclusion for pregnant workers discriminated on the basis of sex, even though the Court wrote that “only women can become pregnant.”

Geduldig, it should be noted, is not a particularly beloved decision. Four years after it was handed down, Congress enacted the Pregnancy Discrimination Act, which repudiated Geduldig in the workplace and forbade employers from discriminating on the basis of pregnancy. Regardless, Geduldig’s holding was limited. It established that the government may set up public benefit programs that exclude medical procedures “that only one sex can undergo.” 

Skrmetti, by contrast, involves medical procedures that both sexes can undergo. Anyone can take puberty blockers, testosterone, or estrogen. It is not physically impossible to administer testosterone to someone assigned female at birth in the same way that it is physically impossible for a person without a uterus to become pregnant.

Not all sex discrimination is forbidden

Given the Court’s decisions in Craig and Virginia, it should be obvious that Tennessee’s law draws distinctions based on sex and thus can only survive if the state can offer an “exceedingly persuasive justification” for it. Indeed, if the Court were to reject that conclusion, it would do considerable violence to the legal principles governing all gender discrimination cases.

Still, even if the Court honors the Craig/Virginia framework, Tennessee’s law could potentially survive if five of the justices deem the state’s arguments for the law sufficiently persuasive. 

The briefs in the Skrmetti case paint two very different pictures of why medical professionals treat transgender patients with puberty blockers or hormones. A brief filed by the Biden administration, for example, warns that the absence of these treatments can lead patients with gender dysphoria (the medical term for the distress that can result when someone’s gender identity does not match their sex assigned at birth) to “‘debilitating distress,’ ‘depression,’ ‘substance use,’ ‘self-injurious behaviors,’ and ‘even suicide.’” One survey referenced in the brief found that more than one-third of transgender high school students attempted suicide in the last 12 months.

This view, which presents gender-affirming treatments as a way to prevent suicide and alleviate the harms of gender dysphoria, is supported by briefs filed by medical and mental health groups such as the American Psychological Association, the American Academy of Pediatrics, the World Professional Association for Transgender Health (WPATH), and the American Medical Association — among other, similar professional organizations.

Tennessee’s brief, meanwhile, presents a much more conspiratorial picture. At one point, for example, it claims that a transgender official within the Biden administration pressured the WPATH to issue inappropriately permissive guidelines on trans health care for physicians. At another point, it suggests that a major hospital in Tennessee started providing transgender health care because doing so would “make a lot of money” for the hospital.

Do Tennessee’s arguments meet the threshold of an “exceedingly persuasive justification”? It’s worth noting that the trial court which heard Skrmetti, the only court to closely examine the evidence on either side of the case, temporarily blocked Tennessee’s law during an early hearing in this case. Of course, it’s possible that a full trial will reveal that Tennessee’s more conspiratorial view of the facts is correct, but there’s good reason to be skeptical that all of the major professional organizations representing pediatricians, psychologists, trans health providers, and physicians generally are all engaged in a grand conspiracy to make more money by overmedicating transgender children.

There’s some chance the Court will hit pause on this case

There is some chance that the Court will delay resolution of this case, although probably not for very long.

In the lower courts, both the Biden administration and lawyers for a group of transgender plaintiffs argued the pro-trans position. After they lost in the appeals court, both the Justice Department and the private plaintiffs asked the justices to hear their case. Although these two petitions present similar questions, the Court decided only to grant the Justice Department’s request to hear the case — which is why the case is currently called United States v. Skrmetti.

Thus far, the Court has taken no action on the private plaintiffs’ petition, which is known as L.W. v. Skrmetti.

Ordinarily, the Court’s decision to grant one petition and not the other wouldn’t matter very much. But it is exceedingly likely that the Trump administration will reverse the Justice Department’s position on this case once it takes power in January and formally withdraw its request for the justices to hear this case. That means that if the justices want to hold on to the case past January, they will need to grant the L.W. petition.

Realistically, none of these procedural maneuvers are likely to change much. It’s possible that the Court will delay oral arguments until all of this is resolved. But, if the justices want to resolve the issue presented by Skrmetti, there’s no reason why the Court can’t decide this case in its current term (which means a decision is likely in late June), regardless of how the procedural drama shakes out.