Opinion | The Supreme Court Case Concerning Trans Youth May Also Undermine Women's Equality
The very foundation of sex equality is in jeopardy.
TroibNews 
Earlier this month, the Supreme Court engaged in oral arguments for what is expected to be one of the term’s most significant cases, United States v. Skrmetti. This case evaluates the constitutionality of state laws that prohibit gender-affirming care for transgender minors. Although the case specifically addresses a law from Tennessee, it has implications for similar laws enacted in 26 states, which could be influenced by the ruling.
A comprehensive ban on such care risks severe repercussions for youth in need of it. However, the arguments presented revealed that the implications extend beyond this issue. The case pertains to women's rights as well, along with a fundamental legal principle critical to their protection: the judiciary's skepticism toward laws that discriminate based on sex.
With advocates defending Tennessee’s law disputing this foundational principle, the concern is not limited to transgender equality; it also affects broader issues of sex equality. The court's decision could potentially echo the repercussions of Dobbs, further undermining women's legal freedoms and the broader freedoms enjoyed by individuals regardless of their gender.
The United States government is contesting the Tennessee law by invoking the Constitution's equal protection clause, which has historically been interpreted to uphold sex equality. Under this clause, sex-based laws, which classify individuals based on sex, are subject to heightened scrutiny; courts will invalidate such laws unless a compelling justification for the sex-based distinction is established.
The specific law in question, SB1, prohibits certain medical treatments when they are prescribed to enable a minor to affirm a gender that differs from the sex assigned at birth. However, these same treatments are permitted if prescribed for other reasons, such as treating delayed or early-onset puberty.
During the arguments, U.S. Solicitor General Elizabeth Prelogar emphasized that this constitutes sex discrimination. She illustrated her point with an example: “[T]ake Ryan Roe, who is one of the individual plaintiffs here. He wants to take testosterone in order to live and identify as a boy, and he’s prohibited by SB1 from doing so because his birth sex was female. But, if you change Ryan’s birth sex and suppose he was assigned male at birth, then SB1’s restriction lifts.” This distinction between biological females and males concerning treatment access should prompt rigorous judicial examination of the law.
A central question emerged regarding whether this situation truly constitutes sex discrimination. Justices Elena Kagan and Amy Coney Barrett described the sex discrimination analysis as somewhat “formal,” with Justice Kagan wondering if this case reflects “discrimination against, a disregard for, young people who are trans,” rather than discrimination based solely on sex. The way the court categorizes this as either sex discrimination or transgender discrimination is crucial. Winning the challenge is more likely through a sex discrimination argument, as discrimination against transgender individuals currently does not receive heightened scrutiny and the Supreme Court has not recognized a new protected class in decades.
However, there are additional factors at play. Even if the law distinguishes on the basis of sex, Tennessee contends that it should receive deference from the court. The state suggests that other distinctions within the law mitigate its sex-based classifications. Justice Sonia Sotomayor posed a pertinent question: “If a sex-neutral-looking child walks into a doctor and says, I don’t want to grow breasts, doesn’t the doctor have to know whether it’s a girl or a boy before they prescribe the drug?” Tennessee argues the key concern for the doctor is the purpose of the drug, whether for a gender transition or another reason. Notably, Justice Ketanji Brown Jackson pointed out that Tennessee’s lawyer conceded the law allows a child assigned male at birth to receive hormone treatment to deepen their voice, while simultaneously prohibiting a child assigned female at birth from accessing the same treatment for identical reasons. This raises the prospect that the court might not need to examine all sex-based laws closely. If this rationale holds, it could simplify the preservation of this law and numerous others that discriminate by sex.
Embracing Tennessee’s position would not only jeopardize the well-being of transgender minors needing medical care but also threaten decades of legal precedent fundamental to women’s rights. Over 50 years ago, the Supreme Court acknowledged the necessity of rigorous scrutiny for sex-based laws to uphold the constitutional principle of equality. Historical discrimination against women had relegated them to an inferior legal status, thus mandating careful examination of laws based on sex to prevent continued discrimination.
Since then, the Supreme Court has subjected any laws that categorize individuals based on sex to stringent scrutiny, allowing laws to be upheld only when justified by compelling reasons. This doctrine has enabled courts to reject laws that confined women to subordinate family roles and restricted their presence in public life. The current Skrmetti argument, featuring four women on the bench and one arguing before it, exemplifies the successes achieved under this legal principle.
One particularly concerning notion proposed by Tennessee suggests that laws based on biological sex differences are exempt from scrutiny. As shown by prior research, this has never been the court’s stance. History demonstrates that cloaking bias in biological terms is a frequent tactic in sex discrimination cases. Numerous contested laws, from male-only university admission policies to different citizenship rules for mothers versus fathers, have invoked physical sex differences. The courts have repeatedly discovered that these laws stem from sex stereotypes rather than genuine biological distinctions. Neglecting to require scrutiny of all sex-based laws makes it too easy to enact legislation rooted in sexual bias.
Equally crucial is that equal protection has proven to be an essential mechanism for challenging laws that constrain the roles and expectations of individuals across the gender spectrum. The equal protection principle has invalidated laws excluding men from caregiving roles or compelling anyone to conform to traditional sex-based expectations, thus allowing all individuals to break free from confining gender stereotypes.
In this context, it becomes evident that the law in question strikes at the core of sex equality. The Tennessee law—and trans discrimination generally—is not solely about unfair treatment of trans individuals; it also seeks to enforce strict adherence to gender norms. As Prelogar articulated, the law is “one that prohibits inconsistency with sex,” requiring children born male or female to “look and live like boys and girls.” Tennessee’s argument endangers the longstanding freedoms we have to express ourselves without regard to sex.
Rather than being a neutral law that applies equally to males and females, the law reflects a gender hierarchy that favors masculinity while narrowly confining femininity. Medical treatments that reduce the fertility of trans boys and men challenge the traditional concept of motherhood. A friend-of-the-court brief from the conservative anti-abortion group Alliance Defending Freedom expressed concerns that “If both a boy and a girl are considering a mastectomy, only the girl gives up the ability to breastfeed her future child.” Alarmist narratives about girls rejecting motherhood are intrinsic to anti-trans rhetoric, as seen in conservative critic Abigail Shrier’s book, Irreversible Damage: The Transgender Craze Seducing Our Daughters, which features an image of a young girl devoid of a uterus. Such anxieties surrounding women’s roles as mothers are the very basis for much anti-abortion sentiment and reflect the same outdated sex stereotypes that the equal protection clause aims to eradicate.
The prospect of reversing five decades of legal progress integral to sex equality feels reminiscent of past battles. This is the court that reversed a 50-year precedent, Dobbs, undermining women’s reproductive rights.
Despite the implications of Dobbs, there remains a flicker of hope. The Court, encompassing both liberal and conservative justices, has demonstrated preparedness to critically evaluate sex discrimination. Justices from across the ideological spectrum have applied heightened scrutiny to sex-based laws, even when they concern biological differences, as evidenced in a 2017 ruling that scrutinized and invalidated a sex-based law without dissent.
In that decision, the Court remarked on “an era when the Nation’s lawbooks were rife with overbroad generalizations about the way men and women are”—an era it believed to be in the past.
Let’s remain hopeful that this decision preserves the progress made. The well-being of transgender youth and the future of sex equality are at stake.
Mark B Thomas contributed to this report for TROIB News
A comprehensive ban on such care risks severe repercussions for youth in need of it. However, the arguments presented revealed that the implications extend beyond this issue. The case pertains to women's rights as well, along with a fundamental legal principle critical to their protection: the judiciary's skepticism toward laws that discriminate based on sex.
With advocates defending Tennessee’s law disputing this foundational principle, the concern is not limited to transgender equality; it also affects broader issues of sex equality. The court's decision could potentially echo the repercussions of Dobbs, further undermining women's legal freedoms and the broader freedoms enjoyed by individuals regardless of their gender.
The United States government is contesting the Tennessee law by invoking the Constitution's equal protection clause, which has historically been interpreted to uphold sex equality. Under this clause, sex-based laws, which classify individuals based on sex, are subject to heightened scrutiny; courts will invalidate such laws unless a compelling justification for the sex-based distinction is established.
The specific law in question, SB1, prohibits certain medical treatments when they are prescribed to enable a minor to affirm a gender that differs from the sex assigned at birth. However, these same treatments are permitted if prescribed for other reasons, such as treating delayed or early-onset puberty.
During the arguments, U.S. Solicitor General Elizabeth Prelogar emphasized that this constitutes sex discrimination. She illustrated her point with an example: “[T]ake Ryan Roe, who is one of the individual plaintiffs here. He wants to take testosterone in order to live and identify as a boy, and he’s prohibited by SB1 from doing so because his birth sex was female. But, if you change Ryan’s birth sex and suppose he was assigned male at birth, then SB1’s restriction lifts.” This distinction between biological females and males concerning treatment access should prompt rigorous judicial examination of the law.
A central question emerged regarding whether this situation truly constitutes sex discrimination. Justices Elena Kagan and Amy Coney Barrett described the sex discrimination analysis as somewhat “formal,” with Justice Kagan wondering if this case reflects “discrimination against, a disregard for, young people who are trans,” rather than discrimination based solely on sex. The way the court categorizes this as either sex discrimination or transgender discrimination is crucial. Winning the challenge is more likely through a sex discrimination argument, as discrimination against transgender individuals currently does not receive heightened scrutiny and the Supreme Court has not recognized a new protected class in decades.
However, there are additional factors at play. Even if the law distinguishes on the basis of sex, Tennessee contends that it should receive deference from the court. The state suggests that other distinctions within the law mitigate its sex-based classifications. Justice Sonia Sotomayor posed a pertinent question: “If a sex-neutral-looking child walks into a doctor and says, I don’t want to grow breasts, doesn’t the doctor have to know whether it’s a girl or a boy before they prescribe the drug?” Tennessee argues the key concern for the doctor is the purpose of the drug, whether for a gender transition or another reason. Notably, Justice Ketanji Brown Jackson pointed out that Tennessee’s lawyer conceded the law allows a child assigned male at birth to receive hormone treatment to deepen their voice, while simultaneously prohibiting a child assigned female at birth from accessing the same treatment for identical reasons. This raises the prospect that the court might not need to examine all sex-based laws closely. If this rationale holds, it could simplify the preservation of this law and numerous others that discriminate by sex.
Embracing Tennessee’s position would not only jeopardize the well-being of transgender minors needing medical care but also threaten decades of legal precedent fundamental to women’s rights. Over 50 years ago, the Supreme Court acknowledged the necessity of rigorous scrutiny for sex-based laws to uphold the constitutional principle of equality. Historical discrimination against women had relegated them to an inferior legal status, thus mandating careful examination of laws based on sex to prevent continued discrimination.
Since then, the Supreme Court has subjected any laws that categorize individuals based on sex to stringent scrutiny, allowing laws to be upheld only when justified by compelling reasons. This doctrine has enabled courts to reject laws that confined women to subordinate family roles and restricted their presence in public life. The current Skrmetti argument, featuring four women on the bench and one arguing before it, exemplifies the successes achieved under this legal principle.
One particularly concerning notion proposed by Tennessee suggests that laws based on biological sex differences are exempt from scrutiny. As shown by prior research, this has never been the court’s stance. History demonstrates that cloaking bias in biological terms is a frequent tactic in sex discrimination cases. Numerous contested laws, from male-only university admission policies to different citizenship rules for mothers versus fathers, have invoked physical sex differences. The courts have repeatedly discovered that these laws stem from sex stereotypes rather than genuine biological distinctions. Neglecting to require scrutiny of all sex-based laws makes it too easy to enact legislation rooted in sexual bias.
Equally crucial is that equal protection has proven to be an essential mechanism for challenging laws that constrain the roles and expectations of individuals across the gender spectrum. The equal protection principle has invalidated laws excluding men from caregiving roles or compelling anyone to conform to traditional sex-based expectations, thus allowing all individuals to break free from confining gender stereotypes.
In this context, it becomes evident that the law in question strikes at the core of sex equality. The Tennessee law—and trans discrimination generally—is not solely about unfair treatment of trans individuals; it also seeks to enforce strict adherence to gender norms. As Prelogar articulated, the law is “one that prohibits inconsistency with sex,” requiring children born male or female to “look and live like boys and girls.” Tennessee’s argument endangers the longstanding freedoms we have to express ourselves without regard to sex.
Rather than being a neutral law that applies equally to males and females, the law reflects a gender hierarchy that favors masculinity while narrowly confining femininity. Medical treatments that reduce the fertility of trans boys and men challenge the traditional concept of motherhood. A friend-of-the-court brief from the conservative anti-abortion group Alliance Defending Freedom expressed concerns that “If both a boy and a girl are considering a mastectomy, only the girl gives up the ability to breastfeed her future child.” Alarmist narratives about girls rejecting motherhood are intrinsic to anti-trans rhetoric, as seen in conservative critic Abigail Shrier’s book, Irreversible Damage: The Transgender Craze Seducing Our Daughters, which features an image of a young girl devoid of a uterus. Such anxieties surrounding women’s roles as mothers are the very basis for much anti-abortion sentiment and reflect the same outdated sex stereotypes that the equal protection clause aims to eradicate.
The prospect of reversing five decades of legal progress integral to sex equality feels reminiscent of past battles. This is the court that reversed a 50-year precedent, Dobbs, undermining women’s reproductive rights.
Despite the implications of Dobbs, there remains a flicker of hope. The Court, encompassing both liberal and conservative justices, has demonstrated preparedness to critically evaluate sex discrimination. Justices from across the ideological spectrum have applied heightened scrutiny to sex-based laws, even when they concern biological differences, as evidenced in a 2017 ruling that scrutinized and invalidated a sex-based law without dissent.
In that decision, the Court remarked on “an era when the Nation’s lawbooks were rife with overbroad generalizations about the way men and women are”—an era it believed to be in the past.
Let’s remain hopeful that this decision preserves the progress made. The well-being of transgender youth and the future of sex equality are at stake.
Mark B Thomas contributed to this report for TROIB News
