Providing Gender-Affirming Care to Minors

Facts of the Case

Tennessee passed the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity, State Bill 1 (2023) (SB1). SB1 prohibits health care providers from providing gender-affirming surgeries or administering hormones or puberty blockers to transgender minors to enable a minor to identify with or live as a gender inconsistent with their biological sex or for treating discomfort or distress arising from a “discordance between the minor’s biological sex and asserted gender identity” (Tenn. Code Ann. § 68–33–103(a) (2024)). The law allows these treatments for other medical conditions, such as precocious puberty or congenital defects, but not for gender dysphoria.

Three transgender minors, their parents, and a doctor brought a pre-enforcement action, alleging that it violated the Equal Protection Clause of the Fourteenth Amendment by discriminating based on sex and transgender status.

The U.S. District Court for the Middle District of Tennessee enjoined enforcement of SB1. It held that plaintiffs were likely to succeed on their equal protection challenge, that transgender individuals constitute a quasi-suspect class, and that SB1 was unlikely to survive intermediate scrutiny.

The Sixth Circuit stayed the preliminary injunction pending appeal and on appeal found that the plaintiffs were unlikely to succeed on the merits of their equal protection claim. The Sixth Circuit found that SB1 did not classify based on sex, that transgendered individuals are not a suspect class, and that plaintiffs did not establish animus against transgendered individuals as a motivating force behind SB1.

The U.S. Supreme Court granted certiorari to determine whether SB1 violated the Equal Protection Clause.

Ruling and Reasoning

The Supreme Court affirmed the decision of the Sixth Circuit and ruled that Tennessee’s Senate Bill 1 (SB1), which prohibits health care providers from prescribing puberty blockers or hormones to minors for the purpose of treating gender dysphoria, does not violate the Equal Protection Clause of the Fourteenth Amendment.

The Court noted that “laws that classify on the basis of race, alienage, or national origin trigger strict scrutiny” (Skrmetti, p 1828). Such laws must be suitably tailored to serve a compelling state interest. Sex-based laws are subject to a lower but still heightened standard of intermediate scrutiny. The Court noted that sex-based laws must both serve important governmental objectives and be substantially related to the achievement of those objectives.

The Court held, however, that SB1 did not classify on any bases that required heightened scrutiny under the Equal Protection Clause. The Court held that SB1 classifies only on age and medical use. Specifically, health care professionals could administer “certain medical treatments to individuals ages 18 or older but not to minors” (Skrmetti, p 1829) and health care providers could administer puberty blockers or hormones to treat certain conditions other than gender dysphoria, gender identity disorder, or gender incongruence. The Court noted that the appropriate basis for reviewing classification based on either age or medical use was a rational basis review, where the state must show only that the law bears a “rational relation to some legitimate end” (Skrmetti, p 1828).

The Court noted that SB1 did not classify based on sex because it “does not prohibit conduct for one sex that it permits for the other” (Skrmetti, p 1831). No minor could be administered puberty blockers or hormones to treat gender dysphoria or related conditions, and minors of any sex could be administered these same agents for other medical purposes. The Court further held that SB1 did not “exclude any individual from medical treatments on the basis of transgender status but rather removes one set of diagnoses – gender dysphoria, gender identity disorder, and gender incongruence – from the range of treatable conditions” (Skrmetti, p 1833).

The Court also addressed reasoning from Bostock v. Clayton County, 590 U.S. 644 (2020). In Bostock, the Court held that an employer who fired an employee for being gay or transgendered violated Title VII because the employer would in effect penalize an individual of one sex for a trait or action that it tolerates in members of the other sex. The Court declined to consider whether Bostock’s reasoning extended beyond the Title VII context but noted that, if a transgendered boy sought testosterone to treat gender dysphoria, SB1 would prevent a health care provider from administering it. A hypothetical scenario changing the boy’s biological sex to female would not alter the outcome: a girl would also be barred from receiving treatment for gender dysphoria. Thus, “under the reasoning of Bostock, neither his sex nor his transgender status is the but-for cause of his inability to obtain testosterone” (Skrmetti, p 1834).

Regarding the rational basis review standard, the Court noted that there remains significant scientific uncertainty about management of gender dysphoria in children. It cited examples such as the National Health Service (NHS) England prohibitions on administering puberty blockers to new patients under 18 years of age to demonstrate that science is not fully settled in this area. It noted the legislature has a legitimate interest in regulating potentially risky medical procedures and that these policy decisions must be left “to the people, their elected representatives, and the democratic process” (Skrmetti, p 1837).

Dissent

Justice Sotomayor, joined by Justices Jackson and Kagan (in part), dissented and argued that the law classifies based on sex and transgender status and should thus undergo intermediate scrutiny. She noted that SB1 would allow, for example, a biological female with unwanted facial hair to receive hormonal treatment that would be denied to a biological male with unwanted facial hair. She noted the law’s stated interests included “encouraging minors to appreciate their sex” (Tenn. Code Ann. § 68–33–101(m) (2023)).

Justice Sotomator noted that “the majority refuses to call a spade a spade. Instead, it obfuscates a sex classification that is plain on the face of this statute” and “does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight” (Skrmetti, p 1884).

Justice Kagan also filed a separate dissent. She noted that heightened scrutiny should apply but took no position on whether SB1 would survive such scrutiny.