Barrett belies claims of leftward drift as Supreme Court upholds ban on some medical treatments for trans minors
The U.S. Supreme Court ruled 6-3 Wednesday that Tennessee’s ban on gender-affirming medical treatments for transgender minors does not violate the equal protection clause of the 14th Amendment.
The Supreme Court said the law banning hormone treatments, surgery and puberty blockers for minors experiencing gender dysphoria is subject to rational basis review and is constitutional under that standard. The high court’s three liberal justices dissented from the June 18 opinion.
The decision left intact Supreme Court and lower court precedent finding that other examples of discrimination against transgender people are unlawful, observes Chase Strangio, co-director of the American Civil Liberties Union’s LGBTQ & HIV Project, in a June 18 press release.
Strangio called the Wednesday decision “a devastating loss” but said “it does not mean that transgender people and our allies are left with no options to defend our freedom, our health care or our lives.”
Chief Justice John Roberts wrote the majority opinion.
The 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 Supreme Court’s role, however, is to decide whether the law violates the equal protection clause, he said.
“Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives and the democratic process,” Roberts wrote.
An ABA amicus brief had asserted that the Tennessee law violated the equal protection clause. The ABA had argued that the law, known as Senate Bill 1, impermissibly denies the fundamental right to medical autonomy for certain groups while allowing it for others.
The plaintiffs challenging the law include three transgender minors, their parents and a doctor. They were represented by the American Civil Liberties Union, the ACLU of Tennessee, Lambda Legal and Akin Gump Strauss Hauer & Feld. A lower court had ruled that the plaintiffs did not have standing to challenge the surgery ban, and the issue was not before the Supreme Court.
The United States intervened to argue against the law, but the Trump administration reversed course.
The plaintiffs had argued that the law should be reviewed using heightened scrutiny because it is based on sex-based classifications. Roberts rejected that argument, saying the law applies to all minors for certain medical uses, regardless of sex.
The rational basis standard used by Roberts is easier to satisfy than the heightened scrutiny standard.
The rational basis standard says a statutory classification should be upheld if there is “any reasonably conceivable state of facts that could provide a rational basis for the classification.”
Tennessee lawmakers had claimed that treatment with puberty blockers or hormones carries risks of irreversible sterility, disease and illness, and adverse psychological consequences.
Roberts said the law did not target transgender people as a class and did not decide whether laws targeting transgender poeple should be subjected to heightened scrutiny, according to an analysis by Jonathan H. Adler, a professor at the Case Western Reserve University School of Law.
But Justice Amy Coney Barrett went further in a concurrence joined by Justice Clarence Thomas, wrote Adler at the Volokh Conspiracy. She argued that the law should not be subjected to heightened scrutiny even if it did target transgender people.
“Rational basis review applies, which means that courts must give legislatures flexibility to make policy in this area,” Barrett wrote.
Concurring in the judgment, Justice Samuel Alito agreed that rational basis review applies when laws target transgender people and concluded the Tennessee law did indeed target such people.
Adler said Barrett’s concurrence is “interesting to note given recent claims that she has ‘drifted’ to the left.”
According to the ACLU press release, 25 states have passed laws banning gender-affirming medical care for transgender youths.
Tennessee Attorney General Jonathan Skrmetti said in a June 18 statement “life-altering interventions” call for careful scrutiny from elected leaders.
“This victory transcends politics,” Skrmetti said. “It’s about real Tennessee kids facing real struggles. Families across our state and our nation deserve solutions based on science, not ideology. Today’s landmark decision recognizes that the Constitution lets us fulfill society’s highest calling—protecting our kids.”
Hat tip to SCOTUSblog, which had early coverage of the case, United States v. Skrmetti.
See also:
Tennessee law denies transgender youths equal access to medical care, ABA says
Lawyers spar in Supreme Court over constitutional rights in transgender health care case
Chemerinsky: What can we expect from SCOTUS in 2025?
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