Last December, the Supreme Court heard oral arguments in United States v. Skrmetti. The case involves the constitutionality of a Tennessee law, SB1, that prohibits any medical procedure for the purpose of “Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” and “Treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” Including Tennessee, 27 states have enacted such protections for children.
Skrmetti was a political milestone. Ten years ago, the Supreme Court had not yet constitutionalized a right to same-sex marriage. Obergefell v. Hodges was not decided until June 2015. Few had even heard of a transgender political movement. And Ryan Anderson’s groundbreaking book about gender ideology, When Harry Became Sally, would not be published for another three years, in 2018. Yet in Skrmetti, the United States sided with the ACLU and gender activists, asking the Court to hear the case after the Sixth Circuit upheld SB1.
Skrmetti was also a legal milestone. Until deciding Bostock v. Clayton County in 2020, the Supreme Court had never issued an opinion that directly addressed the rights of those who identify as transgender. Skrmetti will be only the second such case. And the United States and the ACLU were now asking the Supreme Court to reach the remarkable conclusion that the Equal Protection Clause of the Fourteenth Amendment—enacted in 1868—had from its inception applied heightened scrutiny to laws that classify based on transgender status because such classifications amount to sex discrimination. The argument would have likely been laughed out of court ten years ago, but the United States and the ACLU argued that their position was a natural extension of Bostock, a position that the Biden administration had pushed into every nook and cranny of federal law and regulations over the previous four years.
This backdrop leaves many questions. How did we get here in such a short time? What might the Supreme Court do in Skrmetti? And how will the decision impact the future cultural discussion about gender ideology? I hope to answer those broad questions and build a foundation on which to have a fruitful discussion.
Cultural backdrop
In 2015, five of nine Supreme Court Justices decided Obergefell and “found” a right to same-sex marriage in the Due Process Clause of the Fourteenth Amendment. That Amendment says nothing about the definition of marriage. It says only that the government must give Americans “due process,” which typically means the right to a hearing, the right to an impartial judge, and similar procedural rights.
The decision was a remarkable reversal. Only four decades earlier, in 1972, the Court rejected a request to hear an identical case from Minnesota. There, too, the plaintiffs claimed a federal constitutional right to same-sex marriage and invoked the Due Process Clause. They lost in the Minnesota Supreme Court. The U.S. Supreme Court then unanimously denied their petition for certiorari. That’s not uncommon. What was unusual is that the Court gave a reason: “for want of a substantial federal question.” The Court doesn’t usually do that. But it did here because the Justices unanimously agreed that the U.S. Constitution had nothing to say about how to define marriage; in 2015, the Court discovered that right in the same constitutional silence.
What does this have to do with gender ideology? Everything. It was the incredible transformation in public opinion about same-sex relationships and conduct that made Obergefell possible. And that transformation was led by the media and entertainment industries, everything from Tom Hanks playing a gay lawyer dying of AIDS in the movie Philadelphia to popular television shows spotlighting gay characters, such as Queer Eye for the Straight Guy, Ellen, Will & Grace, and Modern Family. Hollywood had normalized same-sex conduct that the Church, from its inception, considered contrary to God’s laws regarding human sexuality. Given the publicity push, NBC Entertainment’s chairman, who identified as gay, expressed his “surprise” that the Supreme Court’s “decision wasn’t more one-sided because public opinion already seemed to be overwhelmingly there.”
It took the publicity machine just over 40 years to make the case for gay, lesbian, and bisexual conduct and relationships. With the benefit of the internet and social media, it took much less time to make the case for gender ideology. Indeed, activists had been preparing the launch.
The Supreme Court issued its long-expected same-sex marriage decision in June 2015. For those who were reading the tea leaves, the outcome was not a surprise. Justice Kennedy had been slowly building the case for such a right over a series of decisions, and in the Court’s 2014 Term, he had hired a law clerk who, while a student at Harvard, had co-authored a chapter with a famous Harvard Law professor about why now was the time to constitutionalize same-sex marriage. Those who desired to add the “T” in LGBT knew all that and had already mapped out a ground strategy.
Two months before Obergefell was announced, Olympic gold medalist Bruce Jenner announced he was a “trans woman” in a 20/20 interview with Diane Sawyer. Less than two weeks before the Court’s decision, Jenner debuted a new name and image—using the name Caitlyn Jenner—and began using feminine pronouns publicly as self-descriptors.
The following month, in July 2015, the TLC network debuted I Am Jazz, a reality television show about Jazz Jennings. Jennings was born male but purportedly began identifying as a girl at age two. The series highlighted Jennings and his family “dealing with typical teen drama through the lens of a transgender youth” and continued over numerous seasons. Jennings also published a children’s book, I Am Jazz, designed for teachers and parents to read to young children (ages four through eight, according to Amazon.com). The American Library Association gave the book its Rainbow Project Book List Award in 2015.
Television shows quickly started adding trans or “nonbinary” characters to their lineups. These included popular shows such as Glee, The Bold and the Beautiful, Law & Order: Special Victims Unit, Two and a Half Men, Twin Peaks, CSI: Crime Scene Investigation, Chicago Med, Ugly Betty, Grey’s Anatomy, and even Star Trek.
Producers determined that no age limit was too young for this kind of re-education. In 2021, an episode of Muppet Babies—a television cartoon show for children ages four through seven—featured male character Gonzo’s decision to become a “princess” and wear a dress, though only after keeping his decision a secret. When Miss Piggy asks Gonzo why he didn’t tell his friends, he says, “Because you all expected me to look a certain way,” and “I don’t want you to be upset with me.” Recognizing her “prejudice,” Miss Piggy apologizes and says it “Wasn’t very nice” of Gonzo’s friends “to tell you what to wear.”
The same year, Blue’s Clues—a popular television show for children as young as three years old, released an episode to celebrate “Pride Month.” The show featured a cartoon Pride Parade with a drag queen voiced by Nina West, a contestant from RuPaul’s Drag Race. As each float passed by to the tune of “The Ants Go Marching One by One,” West sang words encouraging viewers “to celebrate gay, lesbian, pansexual, transgender, non-binary, and bisexual parents.” One float “Featured a trans-identified beaver family” that included a child beaver with “scars on its chest, apparently resulting from a double mastectomy surgery.” In case there was any mistake about this, a Nickelodeon spokesperson confirmed that the cartoon markings were, in fact, scars from “top surgery.”
Meanwhile, as smart phones and social media exploded, Facebook, Snapchat, TikTok, and other social media platforms fed children millions of hours of content promoting gender ideology. According to one study, TikTok videos featuring the hashtag #Trans have been watched more than twenty-six billion times. And that was several years ago. LGB Alliance’s Kate Harris opines that it is “no coincidence that the growth of TikTok coincides exactly with the exponential growth of children presenting with gender dysphoria,” noting that TikTok’s transgender messaging frequently tells children “Don’t involve your parents.”
Legal backdrop
The legal revolution was just as swift and well-funded. In 2016, less than a year after the Obergefell decision, the Obama administration’s Departments of Justice and Education sent their now-infamous “Dear Colleague” letter to the nation’s schools. The letter told schools that Title IX—which has always been understood to require schools to maintain separate showers, restrooms, locker rooms, and sports teams for men and women—now required schools to allow access to facilities and teams based on “an individual’s internal sense of gender.” If a school refused to capitulate, the administration threatened to withdraw the school’s federal funding. Although the following presidential administration rescinded the letter, innumerable school districts across the country used the letter to justify changing their policies. In those districts, gender identity—not sex—is the determining factor for who has access to male and female showers. These policies immediately triggered lawsuits from parents and students who demanded that privacy facilities in schools be assigned based on sex only, not gender identity.
In response to those lawsuits, gender activists quickly developed a novel legal theory: it is unlawful discrimination to exclude a boy from the women’s showers and locker room if he identifies as a woman. How can that be? Because, the activists said, it is impossible to discriminate against a person for being same-sex attracted or transgender without discriminating against that individual based on sex. And federal courts routinely ruled in favor of school districts that adopted gender-identity-based privacy policies. Many accepted the activists’ theory and said that schools had to assign privacy spaces based on gender identity or they could be liable under Title IX for sex discrimination. Some went further and accepted the underlying ideology, declaring that a male identifying as a woman is a woman, and females who are upset that a man is in their shower need to get over it.
The legal theory made it to the Supreme Court in the context of Title VII, the federal law that prohibits discrimination in employment based on numerous protected classifications, including sex. In Bostock, the Court considered three consolidated cases, two involving plaintiffs who claimed discrimination because of their status as same-sex attracted, and one who claimed discrimination by a funeral home based on transgender status. In the transgender case, Harris Funeral Homes, the funeral home required its employees to follow a professional, sex-specific dress code, consistent with industry standards and as federal law allows. In 2007, Harris hired funeral director Anthony Stephens, a male. About seven years later, Stephens handed the funeral home’s owner a letter explaining that Stephens had gender dysphoria and decided to start presenting and dressing as a woman at work. The owner took two weeks to carefully consider this. He weighed the impact of his decision on Stephens and Stephens’ wife. He also thought about his female employees and clients who would be sharing a single-sex restroom with Stephens. Finally, he considered the impact on his clients’ grieving process. In the end, the owner could not agree to Stephens’s plan to violate the dress code, so he offered Stephens a severance. The Equal Employment Opportunity Commission sued.
A large majority of adolescent children experiencing gender dysphoria, if left alone, will naturally desist and realign their mind with their body. In contrast, nearly 100% of such children who are affirmed in their gender identity will continue down a road of lifetime medical treatment and misery.
The Supreme Court ruled for Stephens. Adopting the gender activists’ core legal theory and gender ideology’s proposed anthropology, the Court majority wrote, “take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. . . . [T]he individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.”
“[H]omosexuality and transgender status are inextricability bound with sex,” the majority continued. Why? “[B]ecause to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.”
There were numerous problems with that analysis. For starters, the majority opinion assumes that the defendant employers did “not dispute that they fired the plaintiffs for being homosexual or transgender.” But Harris Funeral Home’s owner did dispute that. He said he offered Stephens a severance because Stephens wanted to dress like a woman when meeting with grieving families, and because the owner was concerned about Stephens using the single-sex restroom with female employees. Later in the opinion, the majority disclaimed
that the Court was deciding anything having to do with “sex-segregated bathrooms, locker rooms, and dress codes.” But that was precisely what was at issue in Harris Funeral Home’s case.
In addition, the majority opinion bought into gender ideology’s anthropology, referring to individuals having a sex that was “identified . . . at birth.” Sex is determined at birth based on male or female sex organs. It’s not possible for an individual’s sex to change when they grow older. Sex is fixed and objectively determined, not malleable and subjectively professed.
Moreover, a judge who (correctly) seeks to interpret a statute in accord with its original meaning is supposed to ask what an average American with a reasonable command of the English language would have thought a law’s plain text meant at the time of enactment. Congress enacted Title VII in 1964. There was not a single American in 1964 who thought that the law applied to employment decisions based on homosexual or transgender status. The vast majority of Americans in 1964 would not have even recognized the term “transgender,” much less believed that sex discrimination encompassed a situation like the funeral home’s. That’s why the dissent accused the majority opinion of “sail[ing] under the textualist flag” when “what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”
Finally, the majority opinion derided the employers’ concern that a decision for the plaintiffs would “sweep beyond Title VII to other federal or state laws that prohibit sex discrimination.” It said that the decision applied only to Title VII. But gender activists and the Biden administration quickly took the opinion’s “transgender discrimination equals sex discrimination” reasoning and applied it to many non-Title VII contexts.
On the activist front, lawsuits quickly challenged laws that assigned sports teams based on sex instead of gender identity. Lawsuits fought over whether men who identify as women can be assigned to women’s prisons. The same battle ensued over men who identified as women for the purpose of sleeping in overnight shelters in the same room as women who had been trafficked and abused. Employees were punished by public and private employers alike if they declined to use someone’s preferred pronouns because they believed those pronouns to tell a lie.
As for the administration, it promulgated new Title IX regulations that required
boys who identify as girls to be given access to women’s showers, bathrooms, and locker rooms, as well as women’s overnight accommodations for school trips. The administration told colleges and universities—even those that accepted no federal funding—that they needed to treat men who identified as women as female for purposes of dormitory assignments. Reversing an Obama administration policy that federal funds could not be used to pay for surgeries to “change someone’s sex” because those surgeries were experimental and dangerous, the Biden administration demanded such coverage, and for private employer health-coverage, too. The list goes on.
States were quick to follow suit. For example, in Michigan, the Michigan Supreme Court followed Bostock’s reasoning to rewrite Michigan’s public-accommodations laws to cover differential treatment based on sexual orientation and gender identity. And if that wasn’t enough, Michigan’s Legislature and Governor enacted a bill to ensconce those changes in the law permanently.
Courts, legislatures, cities and towns, and school boards enacted similar policies. But in the midst of this tidal wave, the first seeds of reason and common sense were starting to sprout.
The lead-up to Skrmetti
As courts continued to rule against students and families who merely sought to maintain sex-based school privacy spaces, it was becoming clear that the average citizen was not losing any sleep over the issue. But when it came to sports, things were dramatically different. The same person who didn’t care about a female-identifying male in the restroom cared a great deal when that male finished half a lap around the track or the pool in front of a female competitor.
The first lawsuit was brought on behalf of several young women in Connecticut, where two males identifying as females had “won” 13 women’s state championship track-and-field titles. Although the case was not immediately successful—after dismissal and reinstatement, it is still pending in a federal district court—it raised public awareness. The next step was the development of a model women’s sports act that assigned sports teams based only on sex, not gender identity. It was adopted promptly in half the states.
Soon, stories about California female prisoners being sexually assaulted and impregnated by female-identifying male inmates started to reach the public consciousness. So did stories about detransitioners and children in schools who were socially transitioned by teachers and counselors while keeping that fact hidden from their parents. The gender fever had not yet broken, but the temperature was going down.
The most significant development is that science started to catch up with common sense. Countries that had been at the forefront of developing gender-identity theory, such as Sweden, Norway, Finland, and the United Kingdom, started abandoning the gender affirmation model in favor of conventional psychological approaches, like counseling. Systematic reviews concluded that medical gender transitions were not helpful at best and harmful at worst. From the United Kingdom’s National Health Service’s Cass Report to the recent Canadian summary report, doctors were sounding the alarm. Puberty blockers can cause mental health problems and permanent damage to physical and emotional development. Cross-sex hormones in females atrophy and chemically degrade the female sex organs, leading to sexual dysfunction and eventual sterility. They triple the risk of heart attack, double the risk of stroke, and lower the age of breast cancer, just to name a few.
Surgeries cause permanent disfigurement of the body; they can be both sterilizing and irreversible. A 16-year-old girl who undergoes a mastectomy so that she can look more like a boy will never be able to nurse her baby, even if she pursues reconstructive surgery for her chest. And a Finnish study concluded that there was no difference in suicide rates for those experiencing gender dysphoria who pursued a surgical remedy.
Moreover, a large majority of adolescent children experiencing gender dysphoria, if left alone, will naturally desist and realign their mind with their body. In contrast, nearly 100% of such children who are affirmed in their gender identity will continue down a road of lifetime medical treatment and misery. And doctors have no way to know ahead of time which children will desist and which will persist with their dysphoria.
Recognizing that every child deserves to be kept safe from harmful drugs and surgeries, Alliance Defending Freedom worked with legislators across the country to craft bills that prohibited healthcare providers from administering puberty blockers or cross-sex hormones or from performing surgeries on children who experience discomfort with their sex. Twenty-seven states have adopted such protections into law. These bills recognize that the medical profession has a duty to promote health and human flourishing. Puberty-blocking drugs, cross-sex hormones, and surgeries inflict irreversible damage on children. Rather than provide long-term benefits, they turn children into life-long patients. And in many cases, they deprive children of the ability to become parents later in their lives.
In 2023, with bipartisan support, Tennessee passed its SB1. In response, the ACLU sued Tennessee, and the Biden administration intervened. The administration claimed that Tennessee’s law protecting children violated the Equal Protection Clause of the U.S. Constitution. The ACLU made the same claim and also added a claim that parents had the right to demand experimental and dangerous medical interventions for their children that they did not even have the right to demand for themselves. A federal district court issued an injunction to stop the law from going into effect. But the U.S. Court of Appeals for the Sixth Circuit reversed, concluding that SB1 did not violate anyone’s rights.
As an aside, note that Tennessee’s was just one of many such lawsuits filed against these laws around the country. One of those lawsuits, in Alabama federal court, resulted in the discovery of the infamous internal documents at WPATH, the World Professional Association for Transgender Health, a recognized expert on so-called “gender medicine.” American doctors frequently defer to WPATH’s standards of care when searching for guidance about how to help their young patients who may be suffering from gender dysphoria.
Some internal WPATH documents had previously been leaked to the public, with troubling information. Doctors, nurses, and other WPATH members had frank discussions about whether children could give informed consent to undergoing life-altering procedures when they—and often their parents—don’t understand the full consequences. The obvious answer is no.
WPATH members also discussed that many children and adolescents who visit gender clinics have high rates of other psychological conditions, including depression, anxiety, post-traumatic stress disorder, borderline personality disorder, autism, dissociative identity disorder, and more. Yet the lead author of WPATH’s chapter on mental health thought this made no difference. He said: “The mere presence of psychiatric illness should not block a person’s ability to start hormones.”
Another internal WPATH topic was detransitioners. But rather than showing compassion for those individuals and questioning the premise of medical intervention, WPATH chatroom entries discussed how to “reframe” detransitioners’ serious regret as merely “normal” exploration of gender over time.
But none of these revelations compared to what appeared in the WPATH documents discovered in the Alabama litigation. As described more fully in a Skrmetti
friend-of-the-court brief that Alabama filed in support of Tennessee at the Supreme Court, WPATH—joined by the United States and “social justice lawyers”—crafted WPATH’s latest standards as a political and legal document. Indeed,
some WPATH authors, acting on advice of “social justice lawyers [they] spoke with,” intentionally chose not to seek a systematic review of the evidence before making treatment recommendations. The reason? Because “evidence-based review reveals little or no evidence and puts us in an untenable position in terms of affecting policy or winning lawsuits.”
At the time, the Assistant Secretary for Health in the Biden administration’s Department of Health and Human Services was Rachel Levine, a male who identifies as a female. Secretary Levine met frequently with WPATH. A few months before WPATH was to release its latest guidelines in September 2022, WPATH sent Secretary Levine an embargoed copy of the draft guidance, which specified age minimums for various transitioning surgeries, such as “chest masculinization,” “breast augmentation,” “vaginoplasty,” “phalloplasty,” and so on. Secretary Levine’s office contacted WPATH with a political concern: “that the listing of ‘specific minimum ages for treatment,’ ‘under 18, will result in devastating legislation for trans care.’” “Secretary Levine’s chief of staff suggested that WPATH hide the recommendations by removing the age limits from [the recommendations] and creating an ‘adjunct document’ that could be ‘published or distributed in a way that is less visible.’”
“The authors of the adolescent chapter wrestled with how to respond to the request” but ultimately agreed to change the ages from recommendations to mere suggestions. Secretary Levine demanded more meetings. Then, days before WPATH was to release its guidance, the American Academy of Pediatrics threatened to oppose the guidance “if WPATH did not remove the age minimums.” WPATH doctors “struggle[d] to find any sound evidence-based argument(s)” in the opposition, but recognized it would be a major political challenge for WPATH if the Academy did not support the guidance. So WPATH “caved” and removed the age limits. Other documents revealed that WPATH hindered the publication of evidence reviews, undertaken by Johns Hopkins, that show little to no evidence that children and adolescents benefited from WPATH’s recommended interventions.
Skrmetti
Turning to the Skrmetti case itself, there was a curious lack of alignment between the ACLU and the United States. For starters, the ACLU had challenged the entirety of SB1, including the law’s prohibition on surgeries for the purpose of a gender transition. The United States initially supported that position. But when Secretary Levine’s intervention in WPATH’s recommendations became public, the Biden administration changed course and opposed such surgeries for minors. The administration never explained why it supported these surgeries in the past, why it changed position, or why it was now disagreeing with WPATH recommendations that the administration was claiming in court filings were evidence-based and reflected the accepted standard of care.
In addition, as noted, the ACLU pushed two legal theories in its cert. petition, one based on the Equal Protection Clause, the other based on parental rights. The United States invoked only the Equal Protection Clause. The Supreme Court granted only the United States’ cert. petition. This had two practical effects. First, it effectively eliminated parental rights from the Court’s decision. That was curious, because in theory, if the Court upheld SB1 under the Equal Protection Clause, it might have to confront the validity of these model medical-protection laws again in the future under the parental rights theory. The Court does not usually proceed that way. At the same time, however, by denying the ACLU’s petition, the Court did not have to deal with the somewhat tricky issue of how to recognize a broad parental right to direct a child’s healthcare while carving out an exception for dangerous and experimental procedures like those defined in SB1.
Second, by granting only the United States’ cert. petition, the Court left open the possibility that, after the November elections, a new administration could withdraw the United States’ petition and the Court could then either grant the ACLU petition and decide the case anyway, or decline to grant the ACLU petition and duck a merits decision. On February 7, 2025, the United States filed a letter with the Court announcing that “the government’s previously stated views no longer represent the United States’ position.” “The Department has now determined that SB1 does not deny equal protection on account of sex or any other characteristic. Accordingly, the new Administration would not have intervened to challenge SB1—let alone sought th[e] Court’s review of the court of appeals’ decision reversing the preliminary injunction against SB1.”
Despite all that, the United States “believe[d] that the confluence of several factors counsels against seeking to dismiss its case” at the Supreme Court. Chief among these factors was that there were many cases in lower federal courts where the same constitutional question is being litigated. The new administration urged the Court to “Resolve the question presented without either granting the private plaintiffs’ pending petition for a writ of certiorari, or requesting further, likely duplicative briefing from the same parties about the same court of appeals judgment.”
Why would the new administration do that? The best guess is that the new administration read the tea leaves from oral argument and concluded that the Justices were going to uphold SB1. And that seems to be the consensus from most of the legal commentators who reported on the case.
At the two-and-a-half hour oral argument, several of the Justices echoed a concern that the Sixth Circuit articulated in its opinion reversing the preliminary injunction: that lawmakers are better suited than judges to make determinations about complicated medical questions. This was a victory for all those who have been focusing public attention on the medical reviews from the UK, Finland, Denmark, and Sweden.
The Biden administration’s Solicitor General, Elizabeth Prelogar, pressed that SB1 uses gender dysphoria as the sole reason to prohibit giving minors puberty blockers and cross-sex hormones. If a child is undergoing precocious puberty, for example, puberty blockers are allowed. Since SB1’s effect turns on whether the interventions are used in a manner that is inconsistent with the sex that an individual was assigned at birth, she argued, it was a sex-based line that required heightened scrutiny under the Equal Protection Clause. If this sounds remarkably like the theory in Bostock, that’s because it is. Three Justices seemed to accept this argument and pressed Tennessee’s Solicitor General, Matt Rice, on this point.
What General Prelogar and these Justices missed was that SB1 does not regulate based on who seeks treatment but based on the benefits and risks of the treatment requested. Using the surgical context, when a doctor removes a young woman’s breasts, it matters a great deal whether the reason is because she has breast cancer or the reason is because she wants to look more like a boy. The benefits and risks of the two treatments are radically different. Likewise, the risks and benefits of a vaginoplasty are very different when done to help a female who has suffered harm to her genitals versus a boy who wants to look more like a girl.
This difference in risks and benefits is immediately apparent when considering puberty blockers. When a child is experiencing precocious puberty, the FDA has approved the administration of puberty blockers until she is older. The purpose is to promote the natural and healthy development of her body. But when a child is experiencing gender dysphoria, the FDA has not approved the administration of puberty blockers at any age. The use of puberty blockers to treat gender dysphoria is poorly studied and very risky. The British National Health Service recently stopped such treatments for lack of evidence. Using puberty blockers for gender dysphoria can result in infertility, depression, anxiety, and suicidal ideation. The UK’s Cass Review determined that when it comes to puberty blockers and gender dysphoria, both WPATH standards and Endocrine Society guidelines were “unreliable and methodologically un-rigorous.”
It was also suggested that SB1 has a disparate impact based on sex: only males are denied estrogen treatment, for example, and only females are denied testosterone treatment. But that’s a misunderstanding of the Supreme Court’s disparate-treatment doctrine. As numerous cases confirm, sex discrimination only occurs when a law imposes a burden on a person she would not bear if she was a member of the opposite sex. When it comes to medical treatments, biological differences between the sexes matter. For example, in Dobbs, the decision that overruled Roe v. Wade, Mississippi’s 15-weeks law applied only to women because men can’t become pregnant. Even though the law had a 100% disparate impact, the Supreme Court did not apply heightened scrutiny under the Equal Protection Clause. The Court said it would do that only if the law were a mere pretext for sex discrimination, for example, a law that prohibits a driver’s license for anyone who has the capacity to bear a child. Mississippi’s law was nothing like that, so only rational-basis review applied. That result makes sense. Otherwise, laws regulating insurance coverage for prostate cancer and cervical cancer would be subjected to heightened scrutiny because they disparately impact only one sex.
General Prelogar and the ACLU’s attorney, Chase Strangio, a female who identifies as male, argued alternatively that SB1 had to be subjected to heightened constitutional scrutiny because the law discriminates based on transgender status, and that the class of people who identify as transgender are entitled to extra constitutional protection because of the history of discrimination against them. In other words, someone’s status as transgender is more like race or sex than it is like age or height. But again, SB1 regulates based on the risks and benefits of procedures, not based on someone’s status as transgender. Tennessee’s law would prohibit the use of cross-sex hormones to make a girl look more like a boy even if the girl identified as female. A doctor does not need to know how
a child identifies to know whether SB1 regulates a procedure.
The only other path to heightened review based on a transgender classification is to argue proxy discrimination. This requires two elements, first, that the regulated activity is “an irrational object of disfavor,” and second, that the law uses seemingly neutral criteria closely associated with a disfavored group. The paradigm example of proxy discrimination is a tax on yarmulkes. It’s irrational to tax yarmulkes but not other types of head coverings or clothing. And there is nearly a 100% overlap between Jews and those who wear yarmulkes.
Here, however, there is nothing irrational about regulating medical procedures with serious risks and uncertain benefits for children. Given all the evidence from Sweden, Finland, Denmark, the UK, and Canada, it would be irrational for a state legislature not to have some interest in regulating these experimental and dangerous interventions. And if the Tennessee Legislature had been acting with animus or hostility generally towards those who identify as transgender, then the legislators would have prohibited these interventions for all those who identify as transgender, including adults. The fact that the Legislature limited SB1 to protecting children disproves any claim of proxy intervention.
Because the parental-rights issue was taken off the table as a result of the Court granting only the United States’s cert. petition, not the ACLU’s, there was not much discussion about it. But Justice Barrett did highlight that the issue would not be resolved, clarifying in a colloquy with General Prelogar that “even if we decided that this wasn’t a sex-based classification that triggered intermediate scrutiny, that would not prevent parents from still asserting the substantive due process right,” i.e., parental rights. General Prelogar confirmed that was correct. But the outcome should be no different because there is no parental right to experimental and dangerous medical interventions for children.
Notwithstanding Obergefell, the Court’s governing precedents in Glucksberg and Dobbs
hold that a fundamental right must be “deeply rooted” in our nation’s history and tradition. And while the Court has recognized that parental rights generally are deeply rooted and can be enforced either through the Due Process Clause or the Privileges and Immunities Clause, there is no fundamental right for anyone to obtain a specific medical treatment. It follows, then, that there is no fundamental right for a parent to demand experimental and dangerous medical interventions for their children. To put it another way, the Constitution does not require states to defer to a parent’s risky demand for WPATH’s suspect protocols when a state determines that those protocols are too dangerous for children.
Takeaways
So where does Skrmetti leave us legally and culturally? Legally, the Court could take one of several paths. First, it could hold that SB1 is subjected to heightened constitutional scrutiny, that the Tennessee Legislature has not proffered sufficient scientific evidence to pass that scrutiny, and SB1 and laws like it violate the Equal Protection Clause. That is a very unlikely outcome.
Alternatively, the Court could hold that SB1 triggers heightened scrutiny and the case should be remanded to the lower courts to take additional evidence and decide in the first instance if the law survives that scrutiny. That is certainly a possible outcome.
Based on the oral argument, the most likely outcome appears to be that the Court will hold that SB1 triggers only rational-basis review, and the law easily satisfies that standard. But note that Justice Gorsuch—who authored Bostock and articulated the legal theories that undergird many of the Skrmetti
arguments—did not ask a question or make a single comment during the oral argument.
A rational-basis holding could have immediate implications in other contexts. For example, the Ninth Circuit struck down an Idaho women’s sports bill in a case called Hecox v. Little. Hecox is a male who identifies as a woman who sued to participate on the women’s track team. After a district court enjoined the sports law, Hecox failed to make the team, and Hecox dropped out of school for a time, yet the district court and a Ninth Circuit panel allowed the case to proceed and kept the injunction in place because Hecox could also be denied participation on a university women’s club soccer team—even though that was relief Hecox never requested in the complaint. The Ninth Circuit’s holding was that the Idaho law violated the Equal Protection Clause. It suggested that states in the Ninth Circuit should be assigning sports teams based on circulating testosterone, not sex. Skrmetti could change that. Depending on what the majority opinion says, there may also be implications for Title IX and other contexts. At a minimum, it would stop the further expansion of Bostock’s logic outside the Title VII context. That would be tremendously helpful to curb future harm from gender ideology.
Culturally, as Abigail Shrier celebrated at the end of January, there are signs that the “gender fever” has finally “broken.” A Supreme Court ruling that upholds SB1 would certainly put more wind in the sails of those who oppose gender ideology as a false and dangerous philosophy and anthropology. But it would not be the end of the gender ideology movement. A mere 3 million votes separated the winner and loser in the last presidential election, and the loser would have continued and expanded her predecessor’s aggressive policies promoting gender ideology. We do not and cannot put our faith in presidents, political parties, or Justices.
So rather than viewing this cultural moment as the breaking of gender fever, I would instead recommend that we view it as a pause in the hysteria, a pause that gives us an opportunity to speak to the culture about the gender ideology movement. We must identify and rebut the false arguments and assumptions of the transgender movement. We must confront the language of gender ideology and how it influences our court system. We must better understand the feminist roots of transgenderism and embrace the roots that reflect our true human anthropology and reject those that do not. We must persuade the country that there is nothing abnormal about the male and female bodies, and that it is wrong to treat gender dysphoria as a disease of the body rather than the mind. After all, gender dysphoria is the only dysphoria where some healthcare practitioners recommend that an individual align her body with her mind rather than her mind with her body.
We must seek to eliminate gender ideology from our constitutional and political order by amending statutes like Title VII and Title IX to make clear that they are laws that regulate based only on sex, not gender identity. We must work to reinforce the rights of parents to reject gender transitions for their children without being accused of abuse and neglect, to reject secret social transitions at schools, and to reject modern efforts to destabilize and disintegrate the nuclear family. Finally, we must put the science back in medicine, eliminate the politicization of so-called gender-affirming care, and re-establish the common-sense notion that it is harmful to permanently disfigure the body to address a mental-health issue. And we must do all these things with compassion and accompaniment.
We cannot be satisfied with the publishing of papers and the promise of additional dialogue. We need to use this national pause in the gender ideology hysteria to act, promoting good laws, persuading judges, and educating the public. It is entirely possible that in four years, we may find that gender fever has returned with more funding, better messaging, and even greater political and legal intensity.
Of course, gender ideology is only one way our culture rejects the Church’s teachings. We hear from our culture that there is no such thing as objective truth; that we should act on our feelings, not out of reason and discipline; that we should pursue personal gratification at any cost, and that we cannot trust there is an eternal God who loves us and always wants what is best for us. These are the very same lies the serpent told Adam and Eve in the Garden of Eden. This is no coincidence.
We do not need to solve all these problems. We are not responsible for changing someone’s mind about the subject. But God calls us to spread the Good News to all those we encounter, and to let Him use those labors to advance His Kingdom here on earth. My hope is that as we discuss these important issues, we pray for God’s guidance about how best to inculcate our culture with the truth of marriage, family, and human sexuality. Because nothing less than human flourishing is at stake.
