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The Supreme Court’s decision upholding a Tennessee ban on gender-affirming care for transgender youth is a tragic abdication of the judiciary’s responsibility to protect minorities.
In 1937, in United States vs. Carolene Products, the court famously explained that while courts usually should defer to the political process, deference is unwarranted when there is discrimination against “discrete and insular minorities,” groups that are unlikely to be able to protect themselves against discrimination. Transgender youth are obviously such a minority, but the Supreme Court, in a 6-3 ruling divided along ideological lines, abandoned them.
The issue before the Supreme Court was whether Tennessee may prohibit puberty blocking hormones from being administered to transgender teenagers. Twenty-six states, all with Republican-controlled state legislatures, have banned gender-affirming care for minors. It is estimated that there are 110,000 transgender individuals in these states who will be prevented from having the medical care that they, their parents and their doctors want administered.
Supreme Court says states may decide on proper medical care for those under age 18.
Chief Justice John G. Roberts Jr., writing for the majority in United States vs. Skrmetti, stressed the need for the court to defer to the judgment of the Tennessee Legislature. He concluded his opinion by saying the issue is left “to the people, their elected representatives, and the democratic process.” Likewise, Justice Clarence Thomas, in a concurring opinion, said: “Deference to legislatures, not experts, is particularly critical here.”
But such deference is inappropriate and unwarranted under Supreme Court precedents when a law burdens a group that has been historically subjected to discrimination. Such discrimination is present in this case in two ways.
First, the Tennessee law discriminates on the basis of sex. Roberts’ majority opinion contends that denying the medical care doesn’t amount to sex discrimination because all children are prohibited from receiving gender affirming care. But this ignores that the law allows certain hormones to be given to boys and not girls, and vice versa. That, by definition, is sex discrimination.
Justice Sonia Sotomayor explained it this way in her dissenting opinion: “Sex determines access to the covered medication. Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl.”
Children’s Hospital of Los Angeles will stop offering services related to transgender care, according to a message reviewed by The Times.
Second, the law discriminates against transgender youth. Roberts rejects this as well, saying the law “does not classify on the basis of transgender status.” But that is exactly what the law does: It singles out transgender youth and bars them from receiving certain medical care.
In justifying the majority’s conclusion, the court relies on one of the most ridiculed decisions in history.
Geduldig vs. Aiello (1974) held that excluding pregnancy, and only pregnancy, from disability coverage was not sex discrimination. The decision said there are two categories of people: non-pregnant persons and pregnant persons, and because women are in both categories discrimination based on pregnancy is not sex discrimination. As Justice Ruth Bader Ginsburg later remarked, Geduldig was “egregiously wrong”: “pregnancy discrimination is inevitably sex discrimination.”
Roberts’ logic works this way: There are those who would use the hormonal treatment for gender-affirming care, which is prohibited by the Tennessee law, and those who would use the hormonal treatment for other purposes, which is allowed. Because transgender individuals can be in both groups, there is no discrimination against them.
But of course this ignores that the entire purpose of the law is prohibiting medical treatments that doctors, parents and transgender youth believe is appropriate. It also leads to absurd conclusions, as Sotomayor noted: The court’s approach would mean that “a law depriving all individuals who ‘have ever, or may someday, menstruate’ of access to health insurance would be sex neutral merely because not all women menstruate.”
As a trans person, I have avoided writing about sports because it only distracts from infinitely larger issues, such as access to healthcare, bodily autonomy and equal protection.
By ignoring the discrimination inherent in the Tennessee law, the court avoided applying heightened scrutiny to the case. If that level of scrutiny had been applied, it would not have been possible to merely defer to the Tennessee Legislature. The court would have had to address whether the medical care prohibitions were justified, as did the federal district court in this case. The lower court, looking carefully at the evidence, found that the overall weight of authority supports gender-affirming care for transgender youth.
The human costs of upholding state laws prohibiting gender-affirming care will be enormous. As Sotomayor noted, “Tragically, studies suggest that as many as one-third of transgender high school students attempt suicide in any given year.” She added: “By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims.”
The implications extend beyond the prohibitions in Tennessee and other states against gender affirming care. The Trump administration has barred transgender individuals from serving in the military without providing the slightest basis for its action other than prejudice. It also is aggressively seeking to end federal support for gender affirming care for patients of all ages. The Supreme Court’s Skrmetti decision suggests its willingness to uphold such actions.
Sadly, the conservative justices took sides in the culture wars and in doing so abandoned both long-standing constitutional principles and transgender individuals.
Erwin Chemerinsky, dean of the UC Berkeley Law School, is an Opinion Voices contributing writer.
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Ideas expressed in the piece
- The Supreme Court’s decision to uphold Tennessee’s ban on gender-affirming care for transgender minors represents a failure to protect a vulnerable minority, as courts historically defer to legislatures only when rights of “discrete and insular minorities” are not at risk[1][2]. Transgender youth, who face disproportionate discrimination and suicide risks, are precisely such a group requiring judicial protection[3][4].
- The law constitutes sex discrimination by allowing hormone treatments for cisgender youth (e.g., boys with delayed puberty) while banning identical treatments for transgender adolescents, creating unequal access based on sex[1][3]. Justice Sonia Sotomayor’s dissent emphasized this disparity, arguing that sex determines access to care under the law[1][4].
- The majority’s reliance on Geduldig v. Aiello—a widely criticized precedent that excluded pregnancy from sex discrimination protections—is flawed, as it ignores the law’s explicit targeting of transgender status through differential treatment[1][3]. By framing the ban as “neutral,” the Court avoided applying heightened scrutiny, which would have required Tennessee to justify the law’s medical restrictions[1][4].
- The ruling risks normalizing broader anti-transgender policies, such as military bans or federal funding restrictions for gender-affirming care, by signaling judicial tolerance of discriminatory laws rooted in political bias rather than evidence[3][4].
Different views on the topic
- The Court’s majority argued that Tennessee’s law does not classify individuals based on sex or transgender status, as it applies equally to all minors regardless of identity, and thus does not warrant heightened scrutiny[1][2]. Chief Justice John Roberts emphasized deference to state legislatures in regulating medical practices, framing the issue as a policy debate best resolved democratically[1][3].
- Conservative justices dismissed claims of transgender-specific discrimination, asserting the law merely regulates treatments for gender dysphoria without targeting transgender people as a class[1][2]. They cited “profound” societal and scientific debates over the long-term effects of puberty blockers and hormones, prioritizing legislative caution over medical consensus[2][3].
- The ruling aligns with arguments that irreversible medical interventions for minors require stricter oversight, with Justice Clarence Thomas advocating for legislative authority to balance parental rights, medical ethics, and child welfare[1][3].
- Supporters of the decision contend it preserves states’ rights to enforce age-appropriate healthcare standards, reflecting concerns about the politicization of medical guidelines and the potential for overreach by advocacy groups[2][4].
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