The Supreme Court ruled 6-3 Wednesday that Tennessee’s ban on gender affirming care in cases of gender dysphoria does not trigger heightened legal protections. At the same time, it allowed that the same exact care for minors going through other conditions like precocious puberty could.
Chief Justice John Roberts, writing for the majority, claimed that the law turns on the age of the patient and its medical uses, and that is has nothing to do with sex. This wobbly argument lets him avoid the 14th Amendment and its higher standards for laws that target sex.
The decision was fractured among the justices, though all three liberals dissented.
In contorted reasoning, Roberts wrote that while the group forbidden from getting gender affirming care is comprised entirely of trans individuals, the group allowed to get the same care for other diagnoses may include trans individuals, so it’s not discrimination.
“Absent a showing that SB1’s prohibitions are pretexts designed to effect invidious discrimination against transgender individuals, the law does not classify on the basis of transgender status,” he wrote.
He added, unbelievably, that minors may “regret” getting getting puberty blockers or hormones, that they lack the “maturity” to make the choice to get such medical treatment — while in the same breath saying it’s fine for minors to get the exact same treatment for non-trans related diagnoses.
Roberts tries to wriggle out of the reality that the law bans care only for trans youth by saying that that difference between a boy seeking puberty blockers to treat his gender incongruence (banned) and the same boy seeking the same puberty blockers to treat precocious puberty (permitted) is the different diagnoses. Of course, the diagnosis of gender dysphoria is inextricable from the boy’s trans status.
Sotomayor wrote that the law is a clear-cut case of sex discrimination, which should trigger heightened scrutiny.
“By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims,” she wrote. “In sadness, I dissent.”
Sotomayor wrote repeatedly that the Tennessee legislature didn’t attempt to hide its motivation: It passed the gender affirming care ban to encourage “minors to appreciate their sex.”
She also pointed out that the Court came to the opposite conclusion in Bostock, a 2020 surprise decision where Roberts and Justice Neil Gorsuch joined the liberals to find that Title VII of the Civil Rights Act, which bans sex-based discrimination in employment, encompasses discrimination based on sexual orientation and gender identity. In other words, anti-trans bias is sex-based discrimination, and should have triggered intermediate scrutiny in the gender affirming case.
She scoffed at the majority’s attempt to recast Tennessee’s ban in a neutral light by claiming that no minor of any sex can get gender affirming care for gender dysphoria, and that any minor of any sex can receive the treatment for other diagnoses.
“A prohibition on interracial marriage, for example, allows no person to marry someone outside of her race, while allowing persons of any race to marry within their races,” she wrote.
Sotomayor lamented that minorities including trans people, long the subject of violence and discrimination and brutally underrepresented in government, need judicial protection the most. Tennessee’s argument, that the courts shouldn’t wade into such a controversial topic, sounds “hauntingly familiar” to those familiar with Loving v. Virginia, in which the state fought to uphold its ban on interracial marriage, she added.
Thomas chimed in to add that not only does Bostock’s finding — that sex discrimination encompasses discrimination based on sexual orientation — not apply in constitutional cases, but that maybe heightened scrutiny for sex discrimination shouldn’t exist at all since courts didn’t start applying it until the 1970s.
He also spends some time beating up on all of the major medical organizations that approve of responsible gender affirming care for trans youth, finding their views “irrelevant” and a promotion of “elite sentiment” over democratic debate. He cheered that the Court has rejected such medical consensus in Dobbs.
This story is breaking and will be updated.
Read the ruling here: