The Supreme Court’s decision last week in United States v. Skrmetti will have direct consequences for many transgender minors. Tennessee’s law, which the Court upheld, prohibits people under age 18 from accessing certain kinds of treatment, such as hormones and puberty blockers, to treat gender dysphoria (the condition in which an individual’s sex does not align with their gender identity). But the consequences will be indirect as well, and reach beyond the realm of transgender rights—potentially representing a setback for gender equality and the enforcement of antidiscrimination law.
The majority opinion, written by Chief Justice John Roberts and joined by the five other Republican appointees, revives an outdated case, Geduldig v. Aiello, that blessed discrimination based on archaic thinking. If the Republican appointees plan to revive this older case, they will take the law and the country back to a time when the government used the existence of “biological differences” between men and women to excuse all kinds of discrimination against women. The Court’s logic underscores the extent to which the ideology and methodology of the conservative justices threaten many of the hard-fought civil-rights protections of the 20th century.
The key issue in Skrmetti was whether Tennessee’s law, and others like it, requires heightened constitutional scrutiny. The Court said it does not and rejected two different theories to the contrary—first, that the law discriminates on the basis of sex, and second, that the law discriminates on the basis of gender identity against trans minors.
Roberts’s majority opinion first insisted that the law does not constitute sex discrimination because it concerns a medical procedure for minors—the law prohibits using hormones or puberty blockers to treat minors for gender dysphoria. Therefore, Roberts reasoned, the law distinguishes between persons on the basis of medical treatment and age rather than sex.
Roberts next explained that the law does not constitute discrimination on the basis of gender identity—discrimination against transgender individuals as such. The Court’s logic went as follows: Although the law restricts access to hormones and puberty blockers to treat gender dysphoria, both transgender and cisgender individuals can access these treatments for other conditions. Therefore, the Court suggested, even though transgender people are the only group negatively affected by the law, it still does not amount to discrimination against them, because they, along with cisgender individuals, can still receive hormones and puberty blockers as treatment for conditions other than gender dysphoria. (In a concurring opinion, Justices Amy Coney Barrett, Clarence Thomas, and Samuel Alito indicated that even if a law did specifically and overtly discriminate on the basis of transgender status, they still would not subject the law to heightened scrutiny.)