After contemplating a Tennessee ban on gender-affirming care for transgender minors Wednesday, the Supreme Court appears likely to greenlight the prohibition on the theory that nine humble justices are not the best arbiters of complex medical questions.
It’s a theory of a modest judiciary that stays in its lane and knows the limits of its expertise. But the notion is a wolf in sheep’s clothing: Under the guise of judicial restraint, several justices suggested during arguments they would allow states to circumvent the Constitution’s guarantees of equal protection.
Roberts’ notion of a humble court contrasts with a pattern of augmenting its own authority.
This Supreme Court, dominated by a 6-3 majority of Republican appointees, doesn’t usually take such a modest posture toward government regulation. But when it does, it’s often in cases that will allow a state to implement a constitutionally questionable and partisan-motivated policy. If Wednesday’s case, United States v. Skrmetti, is decided this way, it will be one in a line of decisions where the court deferred to state legislatures so it could avoid facing the constitutional deficiencies those same lawmakers created. Such an outcome would also stand in stark contrast to the court’s rulings on federal law and regulations, where conservative justices have been eager to take power away from Congress and federal agencies.
Wednesday’s case pitted Tennessee’s ban on gender-affirming care against transgender youth and their parents, the ACLU, and the US government, who allege that the law prohibits treatment on the basis of sex. As a result, they argue, courts must take a closer look at the legislature’s justification for the law to determine whether it violates the Constitution’s equal protection clause.
In taking the case, the Supreme Court agreed to decide the proper judicial analysis. That first means determining if the law indeed discriminates on the basis of sex or targets a protected class of people. If it does, then the state of Tennessee must provide additional proof that a ban based on sex is necessary to further the state’s purported goal of improving the health of young people.
It’s hard to deny that Tennessee’s law treats people differently based on sex. For one, the Tennessee law explicitly states that its purpose is to “encourage minors to appreciate their sex” and prohibit treatments that might “encourage minors to become disdainful of their sex.” As Justice Elena Kagan put it on Wednesday, “sounds to me like we want boys to be boys and we want girls to be girls.”
But at oral argument on Wednesday, Chief Justice John Roberts kept trying to dodge that constitutional analysis by describing the medical science around gender-affirming care as “evolving” and “technical.” “Here, it seems to me that the medical issues are much more heavily involved” than in other sex discrimination cases the court has ruled on, Roberts said. “Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?”
Justice Brett Kavanaugh repeatedly made similar points about stepping back. “The Constitution doesn’t take sides on how to resolve that medical and policy debate,” he said. “Why isn’t it best to leave it to the democratic process?”
But the premise that the court was being asked to make a scientific determination was simply untrue. Again, the question before the court was whether Tennessee relied on sex to ban gender-affirming care. That’s because while the Constitution may not take a position on a certain medical treatment, it does take a position on whether a treatment can be denied on the basis of sex. As Solicitor General Elizabeth Prelogar, arguing for the United States government, put it to Roberts, “It would be a pretty remarkable thing for the Court to say that just because we’re in the space of medical regulation, you are not going to apply the traditional standards that ordinarily are applied when there’s a sex classification.” It would also be a classic Roberts move: reaching a radical conclusion while claiming the mantle of restraint.
So Roberts theorized the justices have a constitutional duty to defer to the legislature. “It’s not really so much a question of qualifications,” Roberts said, even though he had repeatedly suggested that it was. “It’s more questions of constitutional allegation of authority. We might think that we can do just as good a job with respect to the evidence here as Tennessee or anybody else, but my understanding is that the Constitution leaves that question to the people’s representatives rather than to nine people, none of whom is a doctor.”
“The medical purpose is utterly and entirely about sex.”
This notion of the humble court flies in contrast with the Roberts’ Court’s usual pattern of deciding cases in a manner that augments its own authority. Time and again, the justices have let neither mootness nor irreparably weak standing theories stop them from ruling when they want to decide a hot button issue. The justices have invented the so-called “major questions doctrine” to shoot down agency programs they deem too big or expensive to enact without clear congressional authorization, leaving the nine justices to decide whether an action survives—not the elected branches. Roberts has authored several of these opinions.
And last term, the court threw out Chevron deference, the judiciary’s decades-long practice of deferring to reasonable agency interpretations of statutes when the law is unclear. The opinion, by Roberts, was a judicial power grab: rather than defer to the expertise of agency policy-makers and scientists, judges should take it upon themselves to second guess all manner of US regulations. As Kagan wrote in her dissent: “In recent years, this Court has…substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. But evidently that was, for this Court, all too piecemeal.”
Despite this track record of amassing power, on Wednesday, Roberts shifted directions to urge deference. Conservatives on the court rarely grant such deference to the federal government—at least under a Democratic president—but often reserve it for states seeking a constitutionally dubious outcome. This may reflect an ideological dislike for over-regulating states. But it also demonstrates an aversion to enforcing the Constitution’s bedrock civil rights protections.
A good example are the court’s decisions granting states almost entirely free rein to gerrymander legislative and congressional maps. In 2017, the court was served an opportunity to place constitutional limits on extreme partisan gerrymandering. But during oral argument, Roberts spurned it, calling the proposed method of determining when voting boundaries are unconstitutional “sociological gobbledygook,” and, in writing for the court, Roberts declined to decide the issue on a technicality. In a subsequent 2019 case heard after the roster of justices had shifted, Roberts had the votes for the outcome he wanted and authored an opinion holding that partisan gerrymandering was a political issue that could not be litigated in federal court. The federal judiciary was, conveniently for Republicans in the case, bowing out. (It’s worth noting that it appears that next year’s GOP majority in the House of Representatives will be a result of the court’s gerrymandering permission slip.) In 2023, the court made it much harder to fight gerrymandering that uses race to sort voters. Writing for the conservative majority, Justice Samuel Alito created a new standard for racial gerrymandering cases, now requiring that courts act with the “presumption that the legislature acted in good faith.” Under such a presumption, courts are instructed that the word of the legislators outweighs their deeds.
On Wednesday, that same kind of instruction appeared likely to carry the day in when it comes to gender-affirming care bans. Rather than assess whether legislators use sex to unconstitutionally limit access to the drug and whether doing so is justified, the justices could simply defer to the good judgment of the legislators.
The Democratic appointees to the court were alarmed by the implications of Roberts’ and Kavanaugh’s questions. “I’m suddenly quite worried about the role of the core questions and the constitutional allocation of authority concerns,” Justice Ketanji Brown Jackson said. Jackson explained that the court simply needed to engage in a two-step analysis. First, does the law draw lines on the basis of sex, and second, if it does, is that delineation justified?
“We’re undermining the foundations of some of our bedrock equal protection cases.”
Jackson pointed to a bedrock civil rights case, Loving v. Virginia, in which the Supreme Court banned anti-miscegenation laws as a violation of equal protection. In that case, she noted, Virginia argued that the court should defer to the states because the science on interracial marriage was in doubt. In 1967, the court declined. But on Wednesday, it looked like the Roberts’ court might take the bait.
If this court decides “there are lots of good reasons for this policy and who are we as the Court to say otherwise,” warned Jackson, “I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases.”
The three Democratic appointees see Tennessee’s ban as treating people differently based on their sex, which would raise the bar a state must clear to justify the law. (The liberals also likely agree that transgender people should be, in the eyes of the law, a protected class so that laws targeting them be subjected to more intense judicial scrutiny.)
The argument that Tennessee’s law discriminates based on sex was laid out multiple times and is fairly simple. If a boy seeks puberty blockers to prevent precocious puberty, he can get them. If a transgender boy seeks them to stop puberty, he cannot get them. In other words, access to the drug depends on the biological sex of the child requesting it. That, the plaintiffs argue, is sex discrimination. The law “prohibits inconsistency with sex,” Prelogar argued, in the same way that laws once prohibited people dressing like the opposite sex or women from pursuing certain professions.
Tennessee denies any sex discrimination, arguing instead that it is not banning access to puberty blockers and hormones based on sex, but rather purpose. If a boy seeks puberty blockers to stop precocious puberty, the drugs are allowed. If the same boy requests them to treat gender dysphoria, the drugs are denied. The underlying medical condition is different. “Its application turns entirely on medical purpose, not a patient’s sex,” Matthew Rice, Tennessee’s solicitor general, told the justices Wednesday.
The problem with that analysis, the liberal justices countered, is that the purpose of hormones and puberty blockers is to control sexual development. If a boy and a girl both want to take testosterone for the same purpose—perhaps to deepen the register of their voice—only the boy can do so, Jackson pointed out. As Prelogar put it, under the law “you can’t have these medications to live or identify in a manner inconsistent with your sex.” Kagan was more blunt. “It’s a dodge to say that this is not based on sex, it’s based on medical purpose, when the medical purpose is utterly and entirely about sex.”
Which is why the justices may choose, boldly and consequentially, to ignore their own duty to analyze the law’s equal protection impact.
“If Tennessee can have an end run around heightened scrutiny by asserting at the outset that biology justifies the sex-based differential in the law, that would undermine decades of this Court’s precedent,” Chase Strangio of the ACLU said Wednesday. And it would undermine the rights of transgender people—and likely those of many others—as well.
