It was obvious, if you listened to the Supreme Court’s oral argument in United States v. Skrmetti last December, that the Court would vote — most likely along party lines — to uphold state laws banning many forms of transgender health care for minors. So nothing about Chief Justice John Roberts’s majority opinion in Skrmetti is really surprising. All six of the Court’s Republicans voted to uphold these laws, and all three of the Court’s Democrats dissented.
But, as a matter of judicial craftsmanship, Roberts’s opinion is disappointing even by the standards of the Roberts Court. It draws incoherent distinctions. It relies on old and widely criticized precedents to undermine legal principles that are well established by more recent cases. At times in his opinion, Roberts seems to misread statutory language that he just quoted a paragraph or two earlier.
It appears, in other words, that the six justices in the majority started with the outcome that they wanted — bans on transgender health care for minors must be upheld — and then contorted their legal reasoning to fit that result.
Even if you share that goal, the decision in this case was unnecessary. As Justice Elena Kagan points out in a brief dissenting opinion, the issue before the Court concerned a threshold question: whether the Tennessee law at issue in this case should receive a heightened level of scrutiny from the courts before it was either upheld or discarded. The ultimate question of whether to uphold Tennessee’s law was not before the justices.
The Court’s Republicans, in other words, could have applied existing law, sent the case back down to the lower courts to apply this “heightened scrutiny,” and then ruled on the bans in a future case. Instead, Roberts’s Skrmetti opinion went further to rule on the legality of the bans, and consists of about two dozen pages of excuses for why the Court’s previous anti-discrimination decisions somehow do not apply to Tennessee’s law.
One virtue of this approach is that it minimizes the broader implications of Skrmetti. At oral arguments, several justices suggested that, in order to uphold Tennessee’s law, they might make sweeping changes to the rules governing all sex-based discrimination by the government — Roberts, for example, floated giving the government broad authority to discriminate on the basis of sex in the medical context. Roberts’s actual opinion contains some language suggesting that the general rule against sex discrimination is weaker when the government regulates medical practice, but those sections of his opinion are so difficult to parse that they fall short of the broad changes he discussed at oral argument.
Ultimately, Roberts’s Skrmetti opinion largely reveals something that close observers of this Supreme Court already know. The Court’s Republican majority is impatient. They are often so eager to reach ideological or partisan results that they hand down poorly reasoned opinions and incomprehensible legal standards.
Because the Skrmetti opinion is so incoherent, it is difficult to predict its broader implications for US anti-discrimination law. One thing that is certain, however, is that this decision is a historic loss for transgender Americans.
So what were the precise legal questions before the Court in Skrmetti?
To understand why the Skrmetti opinion is so difficult to reconcile with the Court’s previous decisions, it’s helpful to understand the precise legal questions before the Supreme Court.
The first of two questions is whether Tennessee’s ban on trans health care for minors classifies patients based on their sex assigned at birth. In United States v. Virginia (1996), the Supreme Court held that “‘all gender-based classifications today’ warrant ‘heightened scrutiny.’” “All” means that all laws that classify people based on their sex must receive additional scrutiny from the courts, not just some laws that do so.
About half of the states have laws targeting transgender health care, but the Tennessee law at issue in Skrmetti is among the strictest. It prohibits people under the age of 18 from receiving many medical treatments to treat gender dysphoria or other conditions related to their transgender status — including bans on puberty blockers and hormone therapy.
Significantly, Tennessee’s law is also quite explicit that the purpose of this law is to ensure that young people do not depart from their sex assigned at birth. The law declares that its purpose is to “encourag[e] minors to appreciate their sex” and to prevent young people from becoming “disdainful of their sex.” That is an explicit sex-based classification. Patients who Roberts refers to as “biological women” are allowed to fully embrace femininity in Tennessee. But a child who is assigned male at birth may not.
Under Virginia, in other words, Tennessee’s law — which relies on a sex-based classification — must be subject to heightened scrutiny.
To be clear, the mere fact that courts must give heightened review to Tennessee’s law does not mean that the law will necessarily be struck down. As the Court held in Craig v. Boren (1976), “to withstand constitutional challenge…classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Some laws do survive this level of scrutiny.
Roberts’s opinion raises several policy arguments for Tennessee’s law, claiming that the procedures targeted by Tennessee are “experimental,” that they “can lead to later regret,” and that they carry “risks.” A court applying heightened scrutiny could consider these arguments and whether they justify upholding the law.
But Roberts bypasses this inquiry altogether, instead denying that the Tennessee law engages in sex-based classifications at all. The law, Roberts claims, only “incorporates two classifications.” It “classifies on the basis of age” by banning certain treatments only for minors. And it “classifies on the basis of medical use” by prohibiting doctors from prescribing those treatments to address gender dysphoria or similar conditions affecting transgender people, while simultaneously permitting those treatments to address other conditions.
Roberts is correct that Tennessee’s law does draw lines based on these two classifications. But a law can do more than two things at once. And this law explicitly states that it exists to classify every child as either a boy or a girl, and then to lock them into that classification until their 18th birthday. Under Virginia, that classification demands heightened scrutiny.
The second legal question before the Court in Skrmetti was whether all laws that discriminate against transgender people are themselves subject to heightened scrutiny. Roberts, however, dodges this question by claiming that Tennessee’s law “does not classify on the basis of transgender status.” Instead, he argues, the law classifies people based on whether they have conditions such as “gender dysphoria, gender identity disorder, or gender incongruence.”
Gender dysphoria, gender identity disorder, or gender incongruence are among the defining traits that make someone transgender. Roberts might as well have argued that Jim Crow laws do not discriminate on the basis of race, but instead discriminate based on the color of a person’s skin.
To justify this distinction, Roberts points to the Court’s decision in Geduldig v. Aiello (1974), which held that discrimination against pregnant people is not a form of sex discrimination because not all women become pregnant. But, even if it is true that not all transgender people experience gender dysphoria or a similar condition, post-Geduldig decisions have long held that the government cannot evade a ban on discrimination by claiming that it is merely discriminating based on a trait that closely correlates with a particular identity.
As the Court said in Bray v. Alexandria Women’s Health Clinic (1993), “a tax on wearing yarmulkes is a tax on Jews” — even though many Jews do not wear yarmulkes.
That said, the Court’s decision not to rule on whether laws that classify on the basis of transgender status must receive heightened review is probably a blessing for transgender people, even if it is a small one. While Roberts’s reasoning on this question is muddled, his opinion leaves open the possibility that a future Court may resolve this question in favor of transgender people — although that is highly unlikely to happen unless the Court’s membership changes significantly.
Notably, Justice Amy Coney Barrett, who is close to the center of the current Court, wrote a separate concurring opinion arguing that discrimination against trans people does not trigger heightened scrutiny.
For the most part, Skrmetti is a disaster for transgender people, and especially for transgender youth. It twists the Constitution in knots to uphold Tennessee’s law. And the decision is likely to ensure that many parents of transgender children must move to blue states if they want their child to receive appropriate medical care.
