The United States Supreme Court Upholds Tennessee's Ban Against Gender Affirming Care For Minors - A Quick Analysis
Looking for some positive signs for LGBT Civil Rights in a Much Disliked Decision
As many are aware, today the United States Supreme Court, in United States v. Skrmetti, upheld Tennessee’s ban on gender affirming medical care for minors.1 Gender affirming care is the process of medically transitioning one’s sex/gender.
At the outset of this post, I realize tensions are very high on this issue, with some celebrating and some mourning the decision. To quote journalist
in Yes, We Need Both the Term “Biological Sex” and the Word “Cisgender”, the issue of gender affirming medical care for minors is a “combustible and catastrophically politicized culture-war issue.”I want to stress that I am only analyzing the Supreme Court’s decision and its implications for LGBT civil rights, not the merits of who is right or wrong in the debate over gender affirming medical care for minors. Moreover, I respect that there is going to be strong disagreement among many people who are honestly arguing in good faith for what they think is in the best interests of a child.2
Even Justice Kagan, in dissent, did not argue that Tennessee’s law banning gender affirming medical care for minors was unconstitutional. She wrote “The record evidence here is extensive, complex, and disputed, and the Court of Appeals (because it applied only rational-basis review) never addressed the relevant issues.”
As to the majority decision itself, Skrmetti’s scope should be clarified. Today’s decision does not ban gender affirming care for minors in the United States, like it has been effectively banned in several northern European countries and the United Kingdom.
This ruling only upholds the bans in the states that have enacted them. While states that protect gender affirming care for minors are at increased risk of Donald Trump’s attacks to force them to change their laws through coercive federal government action like cutting off all federal funding, the laws of those states have not changed. Such potential actions raise their own separate constitutional concerns.3
There is a left wing legal argument against some forms of gender affirming medical care for minors that would constitutionally require that some decisions about medical sex transition could only be made once an individual reached adulthood.4 This argument was not raised though and the Court did not make a ruling to that effect.
The Court also did not weaken its standard of review for governmental discrimination on the basis of sex, which is what plaintiffs in this case had argued. The Court held that Tennessee’s gender affirming medical care ban did not discriminate on the basis of sex.
While this may seem odd, it’s not that unreasonable of a legal position. In 2008, the California Supreme Court pointedly held that the state’s same-sex marriage bans did not discriminate on the basis of sex, despite classifying between the two sexes.5
Skrmetti also does not ban gender affirming medical care for adults (though certainly many opponents of gender affirming medical care for minors also want to ban it for adults as well).
In all, Skrmetti was narrowly decided.
Putting aside the issue of gender affirming medical care for minors, Skrmetti could have potentially done catastrophic damage to LGBT civil rights.
While today’s decision is not what most LGBT civil rights organizations wanted, it is at least not the catastrophic decision for LGBT Americans that I greatly feared.
Here are my two key take-aways:
The Supreme Court did not rule out a suspect or quasi-suspect classification for gender identity despite three of the conservative Justices wanting to rule that way. For that matter, the Court’s decision does not foreclose a suspect or quasi-suspect classification for sexual orientation.
The Supreme Court re-affirmed its decision in Bostock v. Clayton County that Title VII of the 1964 Civil Rights Act prohibits sexual orientation and gender identity discrimination in the work place.
What does that all mean in plain English? Let me explain.
1. The Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment provides that:
No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.6
But it’s not taken literally in every instance. In fact, in most instances the courts allow the government to discriminate.7
Here’s a basic example.
A city decides to impose a parking-by-permit-only requirement for overnight parking on a street in one of its quiet residential neighborhoods. The city then only gives parking permits to those who live on the street.
The government has engaged in discrimination. It discriminates against those who are not residents of that street by denying them the right to park on the street while allowing those who are residents of that neighborhood to park on the street overnight.
Does it violate the Fourteenth Amendment? Almost certainly not.8 That kind of discrimination is subject to what is known as “rational basis review”, a very deferential standard that allows the government to basically do what it wants.
Discrimination on the basis of race, alienage, national origin, legitimacy, and sex, however, are treated differently. Discrimination on the basis of race, alienage, and national origin are presumptively unconstitutional.9
Gender discrimination by the government is generally prohibited under the federal constitution.10 While the standard for evaluating whether a gender discriminatory policy is constitutional is slightly less rigorous than the standard for evaluating racial discrimination, the government still bears the burden of proving the necessity of the discriminatory law or policy.11
When seeking to uphold a policy or statute that discriminates on the basis of gender, the government must prove that there is an “exceedingly persuasive justification”.127 Moreover, the government must prove that gender discriminatory policy serves that exceedingly persuasive justification and is substantially related to achieving those objectives.13
The litigants in Skrmetti attempted to argue that Tennessee’s ban on gender affirming medical care for minors constituted sex discrimination. If the Court had agreed with them, they would have subjected the law to a far stricter review.
What about discrimination on the basis of sexual orientation and gender identity?
For years, sexual orientation discrimination by the government was greenlighted by the courts. It meant that gays, lesbians, and bisexuals were second class citizens. Because to discriminate against a person for being gay was treated the same as the government giving neighborhood parking passes to some but not to others.
A few examples of what rational basis review allowed:
The dishonorable discharges of men and women from the military solely for being gay or lesbian.14
The denial of national security clearances solely on the basis of being gay or lesbian.15
The firing of FBI and CIA agents solely on the basis of being gay or lesbian.16
Laws prohibiting gays and lesbians from adopting and fostering children.17
Family court decisions stripping away custody of children from a parent in a divorce case solely because that parent was gay or lesbian.18
Decisions of schools to terminate, not hire, or not promote teachers solely on account of being gay or lesbian.19
In recent years, changes have begun to occur that have shifted the Court towards a slightly less gay-hating stance. But the battle remains undecided because the Supreme Court still has technically not said what standard of review sexual orientation discrimination is subject to. This is a problem because lower courts will invariably uphold anti-gay discrimination on this basis.20
And with the large conservative majority on the United States Supreme Court, there is a strong risk that the Court could reverse course and decades of progress could be lost.
The Republican Party and the conservative movement strongly oppose the Court’s shift towards protecting gays and lesbians from discrimination and want LGBT Americans to be second class citizens.
Today, the Court could have ratified that principle by holding that rational basis review applies to gender identity discrimination, basically making transgender Americans second class citizens. In doing so, the reasoning of the Court would have almost certainly ensured that rational basis review would have applied to sexual orientation discrimination.
Justice Clarence Thomas, Justice Samuel Alito, and Justice Amy Comey Barrett each wrote a separate concurrence to the majority opinion, where they stated that they believed that gender identity discrimination should be subject to the “rational basis review” standard. Under their interpretation of the Constitution, the government may to discriminate against transgender individuals on a whim.
However, that is not what the Court majority opinion, authored by Chief Justice John Roberts, held. Instead, the Court went out of its way to hold that Tennessee’s ban on the medical transition of minors did not discriminate on the basis of gender identity. The Court has reserved the evaluation of whether gender identity is a quasi-suspect or suspect classification for another case.
It’s very important because it would have been far easier for the Court to have reached the conclusion that Tennessee’s gender affirming care bans discriminate on the basis of gender identity rather than that they don’t.
Their reasoning signals that half of the conservative Justices are at least open to the idea of increased protection for LGBT individuals against discrimination by the government.
2. Bostock v. Clayton County
Bostock v. Clayton County21 was a 2020 decision that held that Title VII of the 1964 Civil Rights Act prohibited employment discrimination by private employers.22
A top goal of the Republican Party, Trans-Exclusionary-Radical-Feminists (“TERFs”), and the conservative movement is to overturn Bostock so that private employers may once more freely discriminate against individuals on the basis of sexual orientation and gender identity.
Now, as I’ve previously written about, if one actually bothered to read the Bostock decision, authored by Justice Neil Gorsuch, they would have recognized that the case is effectively a stalking horse to ban so-called Diversity-Equity-Inclusion programs.
Either conservatives and TERFs can’t read or their hatred for affirmative action is only outweighed by their hatred for gays, lesbians, bisexuals, and transgender individuals. Or both.
For their part, woke progressive activists had been actively working to weaken Bostock by encouraging private corporations to blatantly violate it and then celebrating the violations as a great achievement.
But either way, Bostock being weakened or overturned is a great concern.
Nearly two weeks ago, the Court, in a unanimous opinion authored by Justice Ketanji Brown-Jackson, re-affirmed Bostock in a decision in favor of a straight woman in a significant victory for LGBT civil rights.
While Bostock was not extended in Skrmetti, the Court did not roll the case back. It simply declined to apply its reasoning because the Court held that unlike Bostock, sex was not a but-for cause of differential treatment under Tennessee’s law. Once again, the Court re-affirmed Bostock.
Interestingly enough, only Justice Clarence Thomas continued to attack the decision in Bostock as wrongly decided. This is rather incomprehensible because he joined the unanimous opinion nearly two weeks ago in favor of a straight plaintiff who had been discriminated against for her sexual orientation. If the Court had decided Bostock in the way that he had wanted, then that woman would have had no case.
What’s next?
United States v. Skrmetti does not advance LGBT civil rights. The decision could be used in the future as the basis to restrict individual rights and discriminate broadly against various disliked minorities.
However, for now, Skrmetti does not foreclose LGBT civil rights for the future. In that regard, I am breathing a small sigh of relief.
The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.
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