XPost: alt.transgendered, law.court.federal, or.politics
XPost: sac.politics

A case recently argued in the U.S. Supreme Court will likely determine for
the foreseeable future how difficult it will be for trans people to win constitutional challenges to laws that discriminate against them.

The case, United States v. Skrmetti, concerns whether a Tennessee law
banning gender-affirming medical care for trans youth violates the equal protection clause of the U.S. Constitution’s 14th Amendment.

As a constitutional law scholar, I see United States v. Skrmetti, which
was argued before the justices on Dec. 4, 2024, as a very important case.
This is because the court’s decision in Skrmetti requires the justices to determine how strongly the equal protection clause protects trans people.

The equal protection clause is one of the key parts of the U.S.
Constitution used to protect civil rights. The court decisions declaring
school segregation unconstitutional and legalizing gay marriage both
invoked the equal protection clause.

‘Encouraging Minors to Appreciate Their Sex’
In 2023, Tennessee Gov. Bill Lee signed into law Tennessee Senate Bill 1,
known as SB1. SB1 bans gender-affirming medical care for trans people
under the age of 18.

It does this by prohibiting health care providers from offering medical
care designed to help minors identify with a gender that differs from the
one they were assigned at birth. It also prohibits certain forms of
medical care designed to treat gender dysphoria – the discomfort or
distress due to having a gender identity that differs from one’s sex
assigned at birth or one’s sex-related physical characteristics.

The Tennessee law prohibits anyone from providing puberty blockers or
hormones such as estrogen or testosterone to trans youth for these
purposes. But the law still allows the provision of puberty blockers and
sex hormones for other medical purposes, such as treating congenital
defects, early puberty or physical injury.

The Tennessee legislature claims in the text of the law that “this state
has a legitimate, substantial, and compelling interest in encouraging
minors to appreciate their sex” and in protecting the ability of minors to
grow into adults “who can create children of their own.”

Shortly after SB1 was passed, the American Civil Liberties Union sued
Tennessee on behalf of various trans youth and their parents. They claimed
that the law discriminated based on sex in violation of the equal
protection clause of the U.S. Constitution.

A district court judge granted the the ACLU’s request for a preliminary injunction. This temporarily stopped the enforcement of SB1. But a divided panel of federal judges later reversed the district court’s judgment,
allowing the law to go into effect.

The ACLU and the Biden administration then appealed to the Supreme Court,
which agreed to review the case.

‘Equal Protection of the Laws’
The equal protection clause forbids U.S. states from denying “to any
person within its jurisdiction the equal protection of the laws.” This provision prevents states from creating unjust differences in how the law
is applied to different people.

The most famous equal protection case is likely the Supreme Court’s 1954 decision in Brown v. Board of Education. There, the Supreme Court held
that racial segregation in schools violated the equal protection clause, declaring, “Segregation of white and colored children in public schools
has a detrimental effect upon the colored children. The impact is greater
when it has the sanction of the law.”

A key question in all equal protection clause cases is whether the law
being challenged relies on what is referred to in constitutional law as a “suspect” or “quasi-suspect” classification. This may seem like a
technical aspect of the Skrmetti case, but it has profound implications.

Suspect classifications include race, religion, national origin and
ancestry. Quasi-suspect classifications include sex and whether one’s
parents were married at their time of birth.

The basic idea – and reason for the word “suspect” in the name – is that
courts are extra suspicious of laws that take these features into account.
This is because judges generally think that a person’s characteristics
such as race, religion and, to a lesser degree, sex should not be relevant
to how the law applies to them.

If a court determines that a law is based on a suspect or quasi-suspect classification, then it will assess the law using tests that make it
difficult for the law to pass constitutional muster.

But if a court determines that a law is not based on a suspect or quasi- suspect classification, then it will assess the law using a test that is
highly deferential to the legislators who passed the law. This test makes
it relatively easy for a court to conclude that a law is constitutional.

Thus, it is a crucially important legal issue to determine whether SB1
relies on a suspect or quasi-suspect classification. Tennessee argues that
it does not, while the ACLU and the U.S. argue that it does. The court
will decide.

Sex Discrimination
The U.S. and ACLU argue that SB1 discriminates based on sex, and thus it
is based on a quasi-suspect classification. Tennessee rejects this claim.

Here, in brief, is how the argument that SB1 discriminates based on sex
goes.

Under SB1, the only minors prohibited from getting feminizing sex hormones
such as estrogen are minors who are assigned male at birth. Similarly, the
only minors prohibited from getting masculinizing sex hormones such as testosterone are minors who are assigned female at birth.

Thus, whether a minor is prevented from being able to get the treatment
depends on the minor’s sex. Similar arguments can be made about use of
puberty blockers. That, the U.S. and ACLU claim, is sex-based
discrimination.

Tennessee advocates a different understanding of whether sex-based discrimination is at work in the law. It argues that all youth, no matter
their sex, are prohibited from taking hormones or puberty blockers that
would help them identify with a sex other than the one they were assigned
at birth. In this way, they argue, the law is not about sex.

In the Supreme Court’s 2020 decision Bostock v. Clayton County, Justice
Neil Gorsuch and Chief Justice John Roberts sided with the court’s
liberals in holding that discrimination based on sex under Title VII of
the Civil Rights Act of 1964 included discrimination based on gender
identity and sexual orientation. This decision provided LGBTQ people with nationwide protection against employment discrimination.

The U.S. and ACLU offer a similar argument in Skrmetti to the one in
Bostock. But in Bostock, the court was interpreting the text of a law that explicitly mentioned discrimination based on sex. In this case, the court
is interpreting the equal protection clause, which doesn’t make explicit reference to sex discrimination. Thus, the justices may not think the same
kind of reasoning applies.

The court faces questions in Skrmetti other than whether the law
discriminates based on sex. The parties also disagree about how good the evidence is that gender-affirming care is safe and effective. The court
could rule on that question too, or it could require the lower court to
resolve that issue.

The court could also address whether gender identity should be recognized
as a new suspect or quasi-suspect classification, although recent history suggests it is unlikely to do this.

What’s Next?
The court will likely issue its decision by the end of June 2025. In the meantime, SB1 remains in effect. There are similar laws in half of all
states that are part of other legal battles.

If the court concludes that SB1 is a case of sex discrimination, this
would establish a precedent that would make it easier for others to
challenge laws prohibiting or restricting gender-affirming care. It might
also help trans people litigate other kinds of cases, such as challenges
to laws restricting which restrooms trans people can use.

But if the court concludes that SB1 does not discriminate based on sex,
that would make it harder for trans people to win in future cases in which
they claim that a law discriminates against them.

This article is republished from The Conversation under a Creative Commons license. Read the original article.

https://www.mississippifreepress.org/opinion-u-s-supreme-court-ruling-may- affect-availability-of-gender-affirming-care-for-trans-children/

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