Are you ready for Dobbs II?

The Transgender Case and Judicial Immodesty

The Supreme Court heard arguments last week in a case involving a Tennessee law that forbids treatment for transgender teenagers. A decision is expected by the end of June (and probably won’t come until then, along with the rest of the Court’s most contentious end-of-term cases). Based on the arguments, most people, including me, think the Court will rule for Tennessee, upholding the ban on gender-affirming care. If it does, it will be the Court’s latest high-profile assault on constitutional protections for people caught on the wrong side of the culture wars.

Of course, this case won’t be as momentous as Dobbs, which overturned a 50-year precedent and resulted in a national upheaval. But, like that case, it will change the constitutional terms of protection for the most vulnerable among us—here, transgender teenagers—and empower legislatures in red states to impose their ideological preferences on a particularly disfavored minority group.

The case is L.W. v. Skrmetti. The plaintiffs are three transgender teenagers (identified by their initials or as Jane or John Does), along with their parents and a doctor. Skrmetti is the Attorney General of Tennessee. Tennessee recently enacted a law, SB1, that forbids medical treatment for the purpose of “enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex”—legal-speak for a ban on medical assistance to change gender identity (most commonly puberty blockers and hormone therapy).

The statute doesn’t ban the same treatments if they are prescribed for other purposes, such as delayed puberty. It’s only banned for treating gender dysphoria, a recognized psychological condition that causes significant distress for a person whose subjective gender identity doesn’t align with their physical sex at birth.

The Department of Justice intervened in the case on behalf of the plaintiffs, arguing that the law unconstitutionally discriminates against transgender teens. It’s likely that a new DOJ under Trump would withdraw this position, but that shouldn’t impact the case, as the Department is an intervenor, not a party.

The legal focus of last week’s arguments was whether the ban, which applies only to transgender teenagers, discriminates “on the basis of sex.” That’s an important distinction because it’s well-established that laws doing so are subject to a higher standard of review. That standard, known as “intermediate scrutiny,” requires the government to demonstrate that the law serves an important government interest and is substantially related to achieving that interest. In other words, there needs to be a decent fit between what the government is doing and how it’s trying to do it. This standard is tougher for the government to meet than “rational basis,” which is applied to most laws, though less stringent than “strict scrutiny,” which applies to distinctions based on race (and is often called “strict in theory, but fatal in fact,” because it’s exceedingly rare for a law to be upheld under it).

In this case, a finding that the law discriminates based on sex, and therefore is subject to intermediate scrutiny, would likely mean Tennessee couldn’t justify it. At a minimum, it would require the Court to send the case back to the Sixth Circuit Court of Appeals, which upheld the law under the lowest standard of review.

The position that discrimination against transgender persons is, in fact, discrimination on the basis of sex had strong support coming into the Supreme Court. That’s because of the 2020 case Bostock v. Clayton County, in which the Court held that Title VII of the Civil Rights Act, which prohibits workplace discrimination “because of sex,” covers discrimination against transgender persons (as well as homosexuals). Justice Gorsuch’s majority opinion was based on his reading of the plain meaning of Title VII. He acknowledged that the 1964 Congress that enacted Title VII had not intended to cover transgender individuals, but reasoned that this didn’t matter given that adverse actions against transgender persons would not have occurred “but for” the employee’s sex assigned at birth.

Since the constitutional claim in Skrmetti involves the same inquiry—whether SB1 discriminates on the basis of sex—you would think the Bostock decision would more or less dictate the outcome in Skrmetti. It does not look as if it will work out that way.

The question of whether SB1 discriminates on the basis of sex was front and center for much of the 2½ hours of argument. Tennessee’s position was that there’s no discrimination because the prohibition applies to both boys and girls who want to change their gender. That’s hardly persuasive—it’s akin to the famous French maxim that the law forbids the rich as well as the poor to sleep under bridges.

The DOJ’s argument focused on a girl who wants puberty blockers to change her gender: she can’t get them under Tennessee law, while a boy can get the same medical treatment (because it wouldn’t be for gender dysphoria but, for example, delayed puberty).

That analysis too seems at best incomplete. The core point, which Justice Kagan made at oral argument, is more straightforward. SB1 “is utterly and entirely about sex.” Put otherwise, sex in the relevant sense—i.e., the sense of determining whether the state is discriminating—includes one’s gender identity, which for gender dysphoria precisely comes apart from what’s on one’s birth certificate.

It’s a common-sense principle, and one that is consistent with nearly any view on social controversies involving transgender people. Consider the discomfort many people feel about occupying a bathroom with a transgender person, which feels to them like being with someone of the opposite sex. It’s nonsensical to remove sex from the equation where transgender debates are concerned.

However, the Court’s conservative majority seemed to lean in a different direction.
It was clear that they viewed Tennessee’s position with some sympathy. They also seemed to think it mattered greatly that the statute concerned a prohibition on medical treatment. To the Court, and Chief Justice John Roberts in particular, the case was different from other discriminatory state laws because the Court would need to wade into an evolving medical debate to evaluate it. Such debates, he suggested, are best left to state legislatures.

Justice Alito pursued this line of analysis in characteristically hard-nosed form. He invoked regulatory bans in some countries in Europe to argue that Tennessee’s prohibition was medically well-grounded.

And Justice Gorsuch, who might have been expected to lead the charge for a textual analysis that SB1 discriminates on the basis of sex, instead declined to ask a single question. He seemed to be serving a time-out based on his perceived overreach in Bostock.

With Gorsuch MIA, the argument turned to whether there is a robust medical and policy debate about teenagers changing their gender. Both Chief Justice Roberts and Justice Brett Kavanaugh—the two justices most frequently in the majority last term (Roberts in 96% of cases and Kavanaugh in 95%)—pushed that line.

Thus, Roberts emphasized that there were “medical nuances” that weren’t present in previous gender discrimination cases. The upshot, in his view, was that the Court needs to give more deference to state lawmakers because judges lack medical expertise.

Justice Kavanaugh picked up on this suggestion. He told Solicitor General Elizabeth Prelogar, “It seems to me that we look to the Constitution, and the Constitution doesn’t take sides on how to resolve that medical and policy debate. The Constitution’s neutral on the question.” Of course, that supposition is the very question in the case. If the Constitution doesn’t take sides, Tennessee is free to act.

With Roberts and Kavanaugh showing their hands, look for that distinction to drive an opinion upholding the Tennessee statute, likely written by one of those two justices.

It is possible the Court could go in another direction. Justice Barrett posed an intriguing question about whether SB1 might violate the due process right for parents to guide their children’s medical treatment. But you won’t see any Court commentators bet on it.

If the case comes out as I suspect, it will represent another serious retrenchment of the Court’s equal protection doctrine and a further giant step away—not as immense as Dobbs but in the general neighborhood—from the Court’s traditional role of enforcing constitutional rights.

The Roberts/Kavanaugh apparent rationale is dubious. Since when is discrimination not discrimination if it is anchored in medical debate? The medical rationale might help to determine if the different treatment is defensible (i.e., if it meets the higher scrutiny), but it doesn’t determine whether a law is discriminatory.

Indeed, the history of discrimination includes many instances in which the state has relied, in part, on medical justification. It was only 50 years ago that homosexuality was finally declassified as a mental disorder; before then, it was frequently treated with aversion therapy, convulsive therapy, and even lobotomies. Prohibitions on women serving in combat were based, in large part, on supposed medical justifications. Even school segregation, struck down in Brown v. Board of Education, was defended on the basis of pseudoscientific theories claiming it better served the psychological health of black children.

And while the context is different, many abortion cases—most notably Roe v. Wade—found the Court analyzing the medical and psychological consequences of state regulations, for example, parental notification statutes. Courts do this every day.

In stark contrast to these examples, Kavanaugh and Roberts propose to use the purported fact of unsettled medical debate as a justification for staying out of the fray. The consequence of this move is to come down firmly on the side of Tennessee, while feigning a sort of prudent neutrality. And not simply against these three plaintiffs—the decision will authorize Tennessee, and 22 other states that have enacted similar laws, to impose a categorical rule forbidding all transgender teens from getting treatment.

It's particularly vexing that the Court postures this abdication as a sort of judicial modesty, choosing not to venture into an area where they lack expertise. But they are expert in discerning discrimination, and their highest responsibility is to call it out and assess whether the state has justified it.

The consequences of this self-imposed restraint, if it becomes the basis for the decision, will be devastating for many teenagers in Tennessee. It is undisputed that gender dysphoria, left untreated during puberty, can result in severe physical and psychological harms, including depression and suicide. Studies indicate that up to one-third of transgender high school students attempt suicide each year. Conversely, treatment in appropriate cases—to align a person’s body with their gender identity—can be hugely beneficial. And the standard treatments rarely have serious side effects. Every major American medical organization that takes a position advocates treatment in appropriate cases.

Of course, the Tennessee legislature disagrees. SB1 emphasizes the risks of some of the treatments, but that’s not the principal motivation of the law. Rather, SB1 is anchored in the state’s assertion of a “compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty” and avoiding “encourage[ing] minors to become disdainful of their sex.”

I’m willing to stipulate that there are certain cases in which puberty blockers turn out to be harmful. But there is no serious question—medical, ethical, or empirical—that they can also be life-saving for some teenagers with gender dysphoria. Two points follow with great force.

First, it is inappropriate, and even cruel, to impose a categorical regime that prevents all transgender teens from getting treatment (and imposes $25,000 fines on professionals for each prohibited treatment). Tennessee forbids appropriate treatment in every case. It requires no great medical insight or judicial immodesty to understand that this is not a medically defensible or humane state of affairs.

Second—and now we are really bumping right up against the Court’s opinion in Dobbs—the decision about whether a particular transgender teen should have medical treatment is most fully understood and best made by that teen, their parents, and medical professionals. Outlawing that option is not only medically unsound but tragic. Imagine the life of a teen who desperately required treatment, whose doctor agreed, but the state categorically forbade it—and then it became too late. The Court’s likely verdict guarantees such casualties.

Kavanaugh employed the same maneuver of naïveté in his concurrence in Dobbs. He wrote, “[o]n the question of abortion, the Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress—like the numerous other difficult questions of American social and economic policy that the Constitution does not address.” As with his questioning here, that puts the rabbit in the hat. It’s true only if you’ve already concluded there is no fundamental right to an abortion—and at that point, the case is effectively decided.

And while some proponents of SB1 may have earnest, if misplaced, concerns for the medical well-being of transgender teens, it is patent that part of the impetus for the law is disapprobation of transgender persons. It seems likely that many in the Tennessee legislature see the issue in stark, perhaps religious, terms, according to which changing one’s gender assigned at birth is deeply wrong.

This point matters greatly—not simply as a rebuttal of the Roberts/Kavanaugh unsettled medical debate point, but to position the case within the firmament of the Court’s equal protection jurisprudence. The wellspring of various constitutional equal protection doctrines, such as intermediate scrutiny, is the principle set out in a case called Carolene Products. There, the Court noted that stricter judicial review may be warranted when laws discriminate against “discrete and insular minorities” who may be unable to protect their interests through the political process. It was this principle that Justice Alito invoked when he wrote in Dobbs that “women are not without electoral or political power.”

Viewed through this lens, it is hard to think of a group in today’s society less able to assert its interests in the political process than transgender persons. And the basis of the visceral discrimination against them is, as with other protected groups such as racial minorities, an inalienable trait. It’s both irrational and frequently vicious when the majority singles out such a group for adverse treatment.

This may have been what Justice Ketanji Brown Jackson had in mind when she said at one point in the argument, “I’m getting kind of nervous” that the Court is going to chip away at one of the “bedrock” principles in U.S. anti-discrimination laws.

There is a deep reactionary nature to the Court’s recent opinions in culture-war cases, and Skrmetti looks as if it will take its place among them. This Court’s sympathies seem to lie with a kind of back-to-the-future vision of civic and often religious virtue. The Court seems eager to see communities aligned with that vision in an idealized light and defend them against the charges of discrimination leveled by, you know, liberal elites.

The Court likes to think of this stance as a form of judicial modesty, but there is nothing modest about declining to address a serious claim of discrimination by hiding behind a supposed medical debate. In fact, it is judicial arrogance and a self-righteous abdication of its responsibility to stand up against violations of the Constitution.

Talk to you later.