Written by Joe Meiners, L’26

Introduction

Tennessee Senate Bill 1 (SB 1) bans all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.”^[1] Tennessee is one of twenty-six states that have enacted laws that limit or prohibit the use of “gender-affirming care” for minors.^[2] Gender-affirming care is a term used to encompass a wide range of medical treatment that is aimed at supporting one’s gender identity, regardless of sex at birth.^[3] Laws like Tennessee’s have become more and more common, with the first restriction of its kind being passed in 2021 in Arkansas.^[4] Since then, many other states weary about the possible risks of this kind of care have followed suit, and now about 40% of the “trans youth” (ages 13-17) live in a state that has enacted restrictions on gender-affirming care.^[5]

            In 2023, L.W., John Doe, and Ryan Roe (collectively, “Plaintiffs”), transgender minors who suffer from gender dysphoria, challenged Tennessee’s SB 1 alleging that it violates the Equal Protection Clause of the 14^th Amendment to the U.S. Constitution.^[6] Plaintiffs argued that SB 1 contains both a facial sex classification and discriminates based on transgender status because it restricts care for the purpose of allowing a minor to identify with a sex “inconsistent with the minor’s sex.”^[7] The sex classification exists at the individual level, according to Plaintiffs, as in order to know if SB 1 will or won’t ban treatment you must look at the birth sex of the minor.^[8] The United States District Court for the Middle District of Tennessee agreed with Plaintiffs on both fronts, finding that SB 1 subjected individuals to disparate treatment on the basis of sex because the ban only applies to minors “identifying with a sex inconsistent” with their birth sex and because discrimination based on transgender status also imposes disparate treatment on the basis of sex.^[9] However, the Sixth Circuit went in the opposite direction, finding that “no such form of discrimination occurs” in SB 1 and holding it does not make any sex classification.^[10] Separately, the Sixth Circuit held that transgender status is not a recognized “suspect class,” and thus not deserving of heightened scrutiny.^[11] Applying rational basis review, the Sixth Circuit upheld SB 1 and reversed the District Court.^[12] The United States, through the Biden Administration, intervened and petitioned the United States Supreme Court to determine whether SB 1 violates the Equal Protection Clause.^[13]

The Equal Protection Clause in Brief

To understand the core issue of the pending case, one must understand why the parties are arguing. The Equal Protection Clause provides: “No State shall…deny to any person within its jurisdiction the equal protection of the laws.”^[14] Courts have understood this provision to protect “suspect classes” from discrimination and disparate treatment by State law.^[15] Courts have long recognized race and national origin as suspect classes deserving of heightened, strict scrutiny.^[16] Sex has too been treated as a suspect class.^[17] However, unlike race and national origin, sex classification has been subject only to intermediate scrutiny.^[18] But how do you know when a State statute contains a sex classification? Some cases are straightforward. For example, in Craig v. Boren the statute at issue allowed women aged 18-21 to purchase a certain alcohol, but it did not allow men aged 18-21 to purchase the same beverage.^[19] The analysis becomes trickier, however, if the statute or practice does not specifically discriminate against one sex or the other. In Bostock v. Clayton County, a Title VII case, the Court found that actions discriminating based on sexual preference and transgender status were sex classifications.^[20] The Court in Bostock held that, if you look at the individual impacted by the action or statute and the outcome depends on their sex, you have a sex classification.^[21]

Here, Plaintiffs primarily argue that SB 1 contains a facial sex classification.^[22] Plaintiffs also employ similar logic found in Bostock to identify a sex classification: if you apply SB 1 to a male minor and a female minor seeking the same treatment, the outcome will depend upon the minor’s sex.^[23] While Tennessee contends that no such classification exists and that SB 1 targets all minors, regardless of their birth sex.^[24] Tennessee asked the Court to understand their law as only discriminating on the “purpose” of the medication:

SB1 includes no sex classification. It draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes. And boys and girls fall on both sides of that line.^[25]

Tennessee also argues that principles of federalism and political accountability require the Court to defer to the legislatures of the States as they tackle this complicated medical issue.^[26]

If the Supreme Court finds that a sex classification exists, then intermediate scrutiny will apply and Tennessee must persuade a Court that SB 1 is substantially related to achieving an important government interest.^[27] If the Supreme Court finds that there is no sex classification, then SB 1 will be subject to rational basis review, and will, in all likelihood, be upheld.^[28] The application of heightened scrutiny could be a death sentence for laws like SB 1 which restrict gender-affirming care for minors, so this case is exceedingly important.

Oral Arguments: U.S. v. Skrmetti

On December 4, 2024, the Supreme Court heard oral arguments for this case.^[29] Solicitor General Elizabeth Prelogar, along with Chase Strangio, argued on behalf of the United States and Plaintiffs. General Prelogar clearly stated that the only question before the Court is whether SB 1 contains a sex classification or not.^[30] Despite only this narrow issue being before the Court, the conservative Justices seemed very concerned about the next step: balancing the interests of Plaintiffs and that of Tennessee.^[31] General Prelogar insisted that the Court can simply “send the case back” to the Sixth Circuit so that they can apply these concerns in an intermediate scrutiny analysis in the first instance.^[32] However, Justice Kavanaugh, in questioning Strangio, seemed sure this case would be “back here in a year” if they acknowledged the sex classification and they would have to weigh the interests anyways.^[33] Chief Justice Roberts, as well as Justices Thomas, Alito, and Kavanaugh, expressed worry about balancing the interests of transgender minors and the State.^[34]Roberts expressed that he believed the best body to weigh those interests is the State legislature, rather than the Court.^[35]This was also the argument put forward by Matt Rice arguing on behalf of the State of Tennessee.^[36] Rice asked the Court to not “constitutionalize one side’s view of a disputed medical question” and to allow the States to experiment and regulate in this space.^[37]

To me, the questions by the conservative Justices signaled that they bought into the argument of Tennessee, that SB 1 does not classify on sex but rather distinguishes based on medical purpose.^[38] This came to a head when Justice Alito challenged Plaintiff’s “Bostock-like” reasoning.^[39] Alito expressed that he did not want to follow the logic of Bostock because that case did not apply to the Equal Protection Clause and that other precedent, namely Geduldig v. Aiello and Dobbs v. Jackson Women’s Health Organization, led him away from finding a sex classification in SB 1.^[40]Further, Alito began to attack the reasoning of Plaintiffs in terms of transgenderism, rather than sex.^[41] Alito argued that transgender status is not an immutable characteristic because people exist who have at one time identified as a gender inconsistent with their sex, yet in a different time identify with a gender consistent with their sex.^[42] Justice Barrett also expressed doubt as to whether the Court should recognize transgender status as a suspect class worthy of heightened scrutiny.^[43] The point here is that it seems that (at least some of) the conservative Justices view this law as naturally discriminating on the basis of transgender status rather than sex, and that applying heightened scrutiny would require the Court to recognize a new suspect class, something the Court has not done in quite some time.^[44]

The liberal Justices of the Court did not buy this argument at all.^[45] The seminal moment of the oral argument came when Justice Jackson pressed Rice about his argument that SB 1 did not draw any sex-based line, rather it drew only a purpose-based line.^[46] Jackson argued that SB 1 draws a purpose-based line that is completely imbued with a sex-based line, which would subject the law to heightened scrutiny.^[47] Jackson posed a hypothetical where a girl wants testosterone treatment to deepen her voice, and a boy wants the same treatment for the same purpose.^[48] Jackson was trying to point out that if the treatment and medical purpose remain constant, there is still a sex classification that prevents the girl from getting the treatment, while the boy can.^[49] Rice pointed to other Tennessee laws that would apparently prevent the boy from receiving this treatment as well, but he was forced to admit that SB 1, applied in a vacuum, would allow the boy to receive the treatment but prohibit the girl from receiving that same treatment solely on the basis of the minor’s birth sex.^[50] Justice Kagan then joined in and echoed this point, saying that “the prohibited purpose here is treating gender dysphoria” and that this “whole thing is imbued with sex.”^[51]

How will the Court come out?

Given the questions asked by the Justices and the ideological split present in the Court, it would not be surprising if the Court affirmed the Sixth Circuit and refused to identify a sex classification in SB 1. While the liberal Justices are rightly concerned about the sex classification present in SB 1, the conservative Justices are equally concerned about subjecting State legislation on this issue to the searching inquiry of the courts. The two sections of the Court seem to be operating on separate plains: the liberal Justices likely believe the conservative Justices to be subverting the force of the Equal Protection Clause, and the conservative Justices likely believe the liberal Justices to be thwarting the democratic process. It seems as though the conservative majority may find that SB 1 distinguishes only based on medical purpose, rather than sex.

Though, it is hard not to recognize the facial sex classification in SB 1, and the case should be remanded to the Sixth Circuit on those grounds so that intermediate scrutiny can be applied. Maybe SB 1 would still be upheld under intermediate scrutiny, and maybe it wouldn’t. Either way, it seems legally correct to find that SB 1, and other State laws that restrict gender-affirming care based on birth sex, do in fact make a sex classification. This is true regardless of views regarding transgender status or the potential risks of gender-affirming care – heightened scrutiny is meant to deal with those issues. Will the Court force States to justify their laws banning gender-affirming care for minors, or will they essentially be granted a presumption of validity under rational basis review? The outcome of this case could provide us with an answer

 

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^[1] Tenn. Code Ann. § 68-33-103(a)(1).

^[2] Lindsey Dawson & Jennifer Kates, Policy Tracker: Youth Access to Gender Affirming Care and State Policy Restrictions, Kaiser Family Found. (last updated Nov. 26, 2024), https://www.kff.org/other/dashboard/gender-affirming-care-policy-tracker/#:~:text=State%20laws%20and%20policies%20prohibiting,having%20passed%20such%20laws%2Fpolicies.

^[3] Id.

^[4] Id.

^[5] Bans on Best Practice Medical Care for Transgender Youth, Movement Advancement Project (data current as of Feb. 27, 2025), https://www.lgbtmap.org/equality-maps/healthcare_youth_medical_care_bans.

^[6] L.W. by and through Williams v. Skrmetti, 679 F. Supp. 3d 668, 680 (M.D. Tenn. 2023).

^[7] Id. at 685-86.

^[8] Id. at 691-92; see also Brief for Petitioner at 15-16, United States v. Skrmetti, No. 23-477 (U.S. Aug. 27, 2024), https://www.supremecourt.gov/DocketPDF/23/23-477/323551/20240827210326240_23-477tsUnitedStates.pdf.

^[9] 679 F.Supp. at 692-95.

^[10] L.W. by and through Williams v. Skrmetti, 83 F.4th 460, 480 (6th Cir. 2023).

^[11] Id. at 496.

^[12] Id. at 491.

^[13] Brief for Petitioner, supra note 9, at 11.

^[14] U.S. Const. amend. XIV, § 1.

^[15] See Brian T. Fitzpatrick & Theodore M. Shaw, Common Interpretation: The Equal Protection Clause, Nat’l Const. Ctr., https://constitutioncenter.org/the-constitution/amendments/amendment-xiv/clauses/702#the-equal-protection-clause (last visited Feb. 27, 2025).

^[16] See id.; see also United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938) (describes “prejudice against discrete and insular minorities” as deserving a “correspondingly more searching judicial inquiry”).

^[17] See Craig v. Boren, 429 U.S. 190, 197-99 (1976).

^[18] See id. at 197 (“classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”).

^[19] See supra note 18, at 191-92.

^[20] Bostock v. Clayton County, 590 U.S. 644, 660 (2020) (“[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”)

^[21] Id.

^[22] Brief for Petitioner, supra note 9, at 15 (“SB1 warrants heightened scrutiny twice over: It explicitly classifies based on sex and it discriminates based on transgender status.”)

^[23] Id. at 21-22 (“[A]n adolescent assigned male at birth cannot receive puberty blockers or estrogen to live and present as a female, but an adolescent assigned female at birth can. That is sex discrimination.”)

^[24] Brief for Respondent at 24, United States v. Skrmetti, No. 23-477 (U.S. Oct. 8, 2024), https://www.supremecourt.gov/DocketPDF/23/23-477/327730/20241008130915048_23-477%20Respondents%20Brief.pdf.

^[25] Id. at 2.

^[26] Id. at 1.

^[27] See Virginia v. United States, 518 U.S. 515, 558 (Rehnquist, C.J., concurring in the judgment) (“To withstand constitutional challenge, . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”

(quoting Craig v. Boren, 429 U.S. 190, 197 (1976))).

^[28] See 83 F.4th 488 (“Rational basis review applies, and it requires deference to legislatures, not to medical experts or trial court findings.”)

^[29] Transcript of Oral Argument at 1, United States v. Skrmetti, No. 23-477 (U.S. Dec. 4, 2024).

^[30] Id. at 18.

^[31] See, e.g., infra notes 34-36.

^[32] Transcript of Oral Argument, supra note 30, at 18.

^[33] Id. at 104.

^[34] See, e.g. id. at 44-45, 54, 78, 108-09.

^[35] Id. at 10.

^[36] See id. at 116.

^[37] Id.

^[38] See id. at 115.

^[39] Id. at 20-21.

^[40] Id. at 21; see also Geduldig v. Aiello, 417 U.S. 484, 494-97 (1974) (holding that discrimination based on pregnancy in a state disability-insurance program does not amount to invidious discrimination under the Equal Protection Clause); Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 236-37 (holding, in part, that a “State’s regulation of abortion is not a sex-based classification”).

^[41] Transcript of Oral Argument, supra note 30, at 96.

^[42] Id. at 97.

^[43] Id. at 59-60.

^[44] Id. at 62-63.

^[45] See, e.g., infra notes 47,

^[46] See id. at 120-25.

^[47] See id. at 122.

^[48] Id.

^[49] Id. at 123.

^[50] Id. at 124.

^[51] Id. at 125.