In its bigotry and deceitfulness, US v. Skrmetti is destined to be seen alongside Plessy, Dobbs, Dred Scott, and all of the court’s other most notorious decisions.
Children hold signs and transgender pride flags as supporters of transgender rights rally by the Supreme Court, December 4, 2024, in Washington, DC.
(Jacquelyn Martin, File / AP Photo)
The Supreme Court, by a vote of 6–3, upheld a Tennessee law banning gender affirming care to minors on Wednesday. The case, called US v. Skrmetti, involves a Tennessee law known as “SB1.” The law essentially seeks to eradicate a class of transgender individuals by denying them hormone and puberty blockers when they hit puberty, but the Republicans on the court ruled that such viciousness is not discrimination. The Tennessee law explicitly prohibits the prescription of medicine based on the gender identity of the patient asking for it, but the Republicans on the court ruled that such bigotry is not discrimination.
In other words, in order to greenlight discrimination against trans children, the Supreme Court’s conservative supermajority ruled that the Equal Protection Clause does not apply to all people, equally.
To achieve his desired results, Chief Justice John Roberts, who wrote the majority opinion, used one of the oldest legal tricks in the white man’s book. He reanimated the should-be-dead idea that treating people “the same” is the same as treating people “equally.” He said that the Tennessee law doesn’t discriminate on the basis of sex, because cis and trans kids are prevented from doing the same thing: taking hormone blockers or enhancements to treat gender dysphoria, gender identity disorder, or gender incongruence.
This is the fallacy that bigots fall back on every time, every time in the history of this country, when their discriminatory laws are challenged. White people and Black people have “the same” access to schools and swimming pools, albeit separate. Black people can’t play baseball against white people, but white teams have “the same” prohibition from playing Black teams. Jewish people have “the same” right to attend the Christmas celebration at school as Christians. Gay people can’t have a same-sex marriage, but neither can straight people, so how can that be unequal?
Of course, as with all the other historical examples, the minority being discriminated against is never actually being given “the same” rights as everybody else. The Tennessee law explicitly does not treat trans kids “the same” as other kids, nor does it treat both sexes at birth the same, because other kids can take hormones! If you are a “boy” who is too small to play football, you can take testosterone to help you make the tackle. But if you are a “girl” at birth, you cannot take the same medication, even if your reason for doing so is exactly the same. The legal test to get testosterone under Tennessee’s law is not “do you want to play football,” but “are you a boy according to Tennessee.” If yes, enjoy your drugs; if no, perhaps consider sewing instead. That is not equality—it’s facial discrimination based on gender at birth.
To get around this plainly obvious fact, Roberts says that the Tennessee law discriminates on the basis of age, and on the basis of your medical reason for wanting the treatment—which is lucky, because, according to him, both of those things are perfectly legal. Essentially, Roberts argues that the constitutional discrimination cancels out the unconstitutional discrimination:
SB1 prohibits healthcare providers from administering puberty blockers or hormones to minors for certain medical uses, regardless of a minor’s sex. While SB1’s prohibitions reference sex, the Court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny. [Emphasis in the original.]
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This is the legal equivalent of saying, “Well, actually, the word means ‘a bundle of sticks’ so it’s not a slur.” If you’re, say, a Republican legislator looking to get a bigoted law past the Supreme Court, or a Supreme Court justice looking for a reason to sign off on a Republican legislator’s bigoted law, SB1 can be pitched as a purely medical statute, something akin to “you must be 18 to purchase cigarettes.” But in reality, everybody, including Roberts, knows that this law is not gender neutral, nor is it intended to be so. I promise you that if Tennessee passed a law saying “only people assigned as male at birth can buy cigarettes before they’re 18, because smoking looks cool on boys and they can’t get pregnant,” Roberts wouldn’t call it a “mere reference to sex.”
Roberts tries to pretend that he’s not tearing a hole in the Equal Protection Clause. He argues that states cannot avoid the clause by simply throwing up some nondiscriminatory reason for their plainly discriminatory law. He says that the law cannot be a “mere pretext for invidious sex discrimination.” And yet, he totally buys Tennessee’s pretextual, allegedly nondiscriminatory reason for SB1 as if it is freaking gospel. He writes:
The law does not prohibit certain medical treatments for minors of one sex while allowing those same treatments for minors of the opposite sex. SB1 prohibits healthcare providers from administering puberty blockers or hormones to any minor to treat gender dysphoria, gender identity disorder, or gender incongruence, regardless of the minor’s sex; it permits providers to administer puberty blockers and hormones to minors of any sex for other purposes.
The scientific term for Roberts’s writing here is “slop.” His reasoning functionally makes no sense in context with his admonition against pretextual laws. He is accepting the pretext, hook, line and sinker, while saying that the pretext is not enough. It’s poorly reasoned, poorly argued, and facially incoherent.
Indeed, it’s hard to imagine this kind of reasoning in any other context. There is a class of people who want a medically approved treatment, and Roberts is saying that they can’t have it based on why they want it, even if their doctors and their parents agree that they should have it. More than that, Roberts is saying that because the law is focused on preventing a specific class of people from accessing the drugs for their preferred reasons, the court can ignore the inherent discrimination in the law.
I can’t even think of a historical analogy for this specific kind of bigotry. SB1 is a direct prohibition on trans kids getting the medical help they need, and Roberts is saying that denying them the help, and thereby trying to eradicate their existence, is the thing that makes the law OK.
Of course, the eradication of trans kids is something the rest of the Republicans on the Supreme Court are fully on board with. Justices Clarence Thomas, Amy Coney Barrett, and Samuel Alito all wrote concurrences to Roberts’s majority opinion, and each one was more vile and crazy than the last.
Thomas wrote separately to basically question whether the Equal Protection Clause can or should ever be used to protect women or prevent sex discrimination (shocker: He’s pretty sure it shouldn’t be).
Barrett wrote separately to say that trans people were not a “suspect class,” which means that they are not entitled to enhanced consideration under the Equal Protection Clause. She argued that trans people have not been historically discriminated against, which is a wild and incorrect assertion. Republicans and Christians like Barrett refused to acknowledge that trans people existed until like five seconds ago, and many of them still don’t. It’s hard to establish a record of historical discrimination against your community when people have historically denied that your community is even a thing.
But Alito takes the cake for the most unhinged opinion. He argues that SB1 doesn’t discriminate on the basis of sex; it instead discriminates on the basis of transgender status… and then he argues that discrimination on the basis of transgender status is awesome and constitutional. He writes: “In my view, transgender status does not qualify under our precedents as a suspect or ‘quasi-suspect’ class.… Transgender status is not ‘immutable,’ and as a result, persons can and do move into and out of the class.”
I found that line particularly galling, because so much of the argument in favor of SB1 from conservatives is around the idea that minors are not competent to make “life-altering” decisions about their bodies. Here, Alito just throws that all away, saying that trans status is not “immutable”… as if a trans man can just put on a dress and not be trans anymore. And because he thinks that, Alito concludes that transgender people don’t really exist as a distinct class anyway, and therefore can be discriminated against as one pleases.
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Every time you see a guy holding a “There are only two genders” sign at a Trump rally, while bedecked in an American flag and sporting a fanny pack full of ammunition, please know that guy and Supreme Court Justice Sam Alito are, in fact, the same guy.
All three liberals were in dissent, along entirely reasonable grounds that will be rediscovered if the long arc of history bends towards justice and this case is overturned in 50 or 100 years. Sonia Sotomayor wrote the main dissent for the court, doing the thankless but necessary work of knocking down each one of the Republican arguments. She read part of her dissent from the bench—which the justices do sometimes to add emphasis—and closed with this:
Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the court to subject it to intermediate scrutiny. The majority contorts logic and precedent to say otherwise, inexplicably declaring it must uphold Tennessee’s categorical ban on lifesaving medical treatment so long as “any reasonably conceivable state of facts” might justify it.… Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the court abandons transgender children and their families to political whims. In sadness, I dissent.
The Republican opinion is sad. It is, frankly, disgusting. And I do believe that, eventually, it will go into the annals of the court’s “anti-canon,” the kind of decisions—like Dred Scott, Plessy v. Ferguson, and Dobbs v. Jackson Women’s Health—that future generations will look back on as they marvel at how the Supreme Court could be so prejudiced and stupid.
But Roberts did say one thing that people who believe in equality should take to heart. “Questions regarding the law’s policy are thus appropriately left to the people, their elected representatives, and the democratic process.”
Now, don’t get it twisted, Roberts offered this line up to cover his own ass in those future history books. He’s trying to say that he need not agree with the policy of the law to find it constitutional, when in reality the only way you can find such a law constitutional is if you agree that the people the law discriminates against can be discriminated against as a matter of policy.
But given that we are beset by a bigoted and discriminatory Supreme Court, the way forward, the only way forward, is to take out our frustrations on the elected officials who pass and support these bigoted laws.
The trans community doesn’t have enough allies on the Supreme Court, and they don’t have any allies in the Republican Party. Democrats, like Gavin Newsom, are interested in abandoning them as well, in service of their political ambitions. But we cannot abandon them. This Supreme Court decision proves that the only way trans people will be allowed to exist and live peaceably and equally in this country is if the rest of us fight for their peace and equality at the ballot box.
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