Supreme Court Upholds Tennessee Ban on Gender-Affirming Care for Minors

WASHINGTON — A divided Supreme Court on Wednesday upheld a Tennessee law banning gender-affirming medical care for minors, a ruling seen as a significant setback for those advocating for greater transgender rights.

The ruling in United States v. Skrmetti, written by Chief Justice John Roberts, upholds an earlier ruling by the 6th U.S. Circuit Court of Appeals, which held the law satisfied the standard of a “rational basis review.”

Under that standard, a court will uphold a statutory classification so long as there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.”

In the case of the Tennessee law, which barred the use of puberty blockers or hormones to treat minors for gender dysphoria, gender identity disorder, or gender incongruence, a majority of justices believed state lawmakers had acted with the legitimate objective of protecting the health and welfare of minors.

“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. The voices in these debates raise sincere concerns; the implications for all are profound,” Roberts wrote. “The equal protection clause does not resolve these disagreements. Nor does it afford us license to decide them as we see best.

“Our role is not ‘to judge the wisdom, fairness, or logic’ of the law before us, but only to ensure that it does not violate the equal protection guarantee of the 14th Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process,” he continued.

The chief justice was joined in the majority by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Justice Samuel Alito joined the majority in part, and he, Thomas and Barrett all filed concurring opinions.

Justice Sonia Sotomayor filed a dissenting opinion, which Justice Ketanji Brown Jackson joined in full and Justice Elena Kagan joined in part. Kagan also wrote her own brief dissenting opinion.

In drafting the law, also known as SB1, the Tennessee Legislature stated the treatments they wanted to ban carry a variety of risks, including irreversible sterility, increased risk of disease and illness, and adverse psychological consequences.

The Legislature also said that minors lack the maturity to fully understand these consequences, that many individuals have expressed regret for undergoing such treatments as minors, and that the full effects of such treatments may not yet be known.

At the same time, the state noted evidence that discordance between sex and gender can be resolved through less invasive approaches.

On review, the majority declined the plaintiffs’ invitation to second-guess “the lines that SB1 draws” holding that states have “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.”

“Recent developments demonstrate the open questions that exist regarding basic factual issues before medical authorities and regulatory bodies in this area, underscoring the need for legislative flexibility,” the opinion states.

The majority was also swayed by the fact SB1 is limited in what it found were two important respects.

“First, SB1 does not restrict the administration of puberty blockers or hormones to individuals 18 and over,” Roberts wrote. “Second, SB1 does not ban fully the administration of such drugs to minors.

“A health care provider may administer puberty blockers or hormones to treat a minor’s congenital defect, precocious (or early) puberty, disease, or physical injury,” he added.

In dissent, Sotomayor accused her conservative colleagues of “wriggling” out of the heightened scrutiny requirements of the equal protection clause by “abstracting” away the “sex classification on SB1’s face” and “asserting that the law classifies based only on ‘age’ and ‘medical purpose.’”

“This case presents an easy question: whether SB1’s ban on certain medications, applicable only if used in a manner ‘inconsistent with … sex,’ contains a sex classification,” Sotomayor wrote. “Because sex determines access to the covered medications, it clearly does.

“Yet the majority refuses to call a spade a spade. Instead, it obfuscates a sex classification that is plain on the face of this statute, all to avoid the mere possibility that a different court could strike down SB1, or categorical health care bans like it,” she continued. “The court’s willingness to do so here does irrevocable damage to the equal protection clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight. It also authorizes, without second thought, untold harm to transgender children and the parents and families who love them. In sadness, I dissent.”

Justice Kagan’s dissent largely endorsed Sotomayor’s views, though she says she would have stopped at declaring SB1 subject to heightened scrutiny, rather than proceeding to determine whether the law met that higher bar, as Sotomayor did in her opinion.

The court’s 6-3 ruling rejected a challenge originally brought by the Biden administration, a group of three transgender adolescents and their parents and a local doctor who treated minors with gender dysphoria.

Before the change in presidential administrations in January, the Department of Justice had argued SB1 was a form of unconstitutional sex discrimination because it prohibits medical treatments only for those seeking to affirm their gender identity and not those seeking to confirm their sex assigned at birth.

Immediately after taking office, President Donald Trump’s Department of Justice abandoned the government’s challenge to the law.

Currently, 27 states have laws on the books that are similar to SB1 in Tennessee. Among them is South Carolina, where Attorney General Alan Wilson applauded the majority’s decision. “This is a win for sanity and for the safety of our kids,” Wilson said in a written statement.

“Today’s decision affirms what we’ve long argued that there is no constitutional right to subject children to life-altering, experimental medical interventions. The court has made clear: states do not have to surrender to radical gender ideology. We will continue to stand up for parents, for biological reality, and for the truth,” he said.

But Kelley Robinson, president of the Human Rights Campaign, the largest LGBTQ advocacy organization within the United States, said Wednesday’s decision “is a devastating blow to transgender youth and the families who love them.

“Families may now have to make the heartbreaking choice to leave their state or split their families, or take on extensive financial burdens, in order to ensure that their kids can access medically necessary care,” Robinson said. But, she added, the ruling “will not break our resolve.”

“This court chose to allow politicians to interfere in medical decisions that should be made by doctors, patients, and families — a cruel betrayal of the children who needed them to stand up for justice when it mattered most,” Robinson said.

Dan can be reached at [email protected] and on X @DanMcCue