The Supreme Court That Ended the Fundamental Right to an Abortion Won’t Protect Trans Youth From Discrimination
In a landmark ruling that will surely send ripples through a nation that is in the midst of a purge of transgender people from public life, the Supreme Court of the United States decreed, by a vote of six to three, that kids who suffer from gender dysphoria aren’t entitled to the protections of the equality guarantees of the Constitution. In so many words, the court’s Republican supermajority, led by Chief Justice John Roberts, ruled that a Tennessee law banning gender-affirming care for trans youth doesn’t violate those guarantees—because, in their view, the law doesn’t discriminate on the basis of sex. And when there’s no such discrimination, the “heightened scrutiny” the founding text demands for these laws doesn’t apply.
Under the Tennessee law, “no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence,” Roberts explained (emphasis his), but “minors of any sex may be administered puberty blockers or hormones for other purposes.” That is, the law survives, because what’s really at play here is not a statute that discriminates based on the sex of the minors, but rather one that treats them differently due to their age and diagnosis. This is a health regulation, and health regulations are owed deference.
By its plain text, the 14th Amendment commands that everyone is entitled to the equal protection of the laws. But the chief justice, who in other contexts has denied those guarantees to Black voters in the South, or else has demanded an end to all racial discrimination in higher education—as he did when he struck a fatal blow to affirmative action policies—seems more concerned with the equal standing of states to keep doing as they please with the healthcare and status of transgender people. To keep experimenting with their lives and health and safety, if they care about them at all. There are, after all, “fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field,” Roberts wrote. “The Equal Protection Clause does not resolve these disagreements,” he added. “Nor does it afford us license to decide them as we see best.” Instead, better to leave all of this messy stuff of protecting the most vulnerable among us to the work of democracy—voters, the electoral process, and the “wisdom, fairness, or logic” of state legislators.
That bottom line is not unlike the bottom line in Dobbs, where the Supreme Court put the question of whether people have a right to end a pregnancy on the states, many of which were champing at the bit to render their own residents second-class people: “Women are not without electoral or political power.” This conceit, or faux judicial humility, is one the conservative justices embrace because it allows them to pretend that they’re deciding cases modestly—and not effecting a sea change in the law that will be felt deeply in other contexts. Or that will otherwise fall hardest on people whom the law already leaves by the wayside. Let the voters sort all of this out. The post-Dobbs chaos, which is still with us, shows how our pre-Dobbs world was a wiser, healthier place.
Indeed, Roberts doesn’t mention Dobbs in United States v. Skrmetti, as today’s ruling is known, but he does cite an odious 1974 ruling dealing with pregnancy discrimination that Justice Samuel Alito did rely on when harpooning Roe v. Wade. As Alito wrote a few years ago, “the regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny.”
Why does this matter? Because at this very moment, the Trump administration, social and religious conservatives, and the broader anti-abortion movement are in a high-pitched crusade to frame the battle for trans equality as a war on sex, sexuality, and “biological” conceptions of gender. As scholar Mary Ziegler wrote when Skrmetti was in the lower courts, the long-discredited pregnancy precedent “was an object of ridicule for Americans with varying views on abortion because it ignored the obvious truth that stereotypes about biology were at the very heart of sex discrimination.” And sex discrimination, as the pioneering work of the late Ruth Bader Ginsburg shows, is plainly unconstitutional.
Put differently, today’s ruling gives a big legal boost to the trans backlash we’re seeing at the national level, which will have the predictable effect of making trans lives harder everywhere. Thanks to Skrmetti, there will be states where trans youth will be able to access lifesaving, medically necessary care, and states where they won’t, and they and their families will suffer grave harm—or worse. If that’s not inequality, then nothing is.
As Justice Sonia Sotomayor notes in her furious dissent, that world is already here. Trans people, historically and now, remain objects of scorn from our elected representatives—up to and including the current president of the United States, who signed an executive order declaring as much. And they lack the political power to counteract the attacks. “The Federal Government,” Sotomayor writes, “has started expelling transgender servicemembers from the military and threatening to withdraw funding from schools and nonprofits that espouse support for transgender individuals.” As a class, trans people simply don’t have “the political power to vindicate its interests before the very legislatures and executive agents actively singling them out for discriminatory treatment,” she added.
None of this is an overstatement. As of this writing, the Trump administration, more committed than ever to eradicating trans existence, just announced the termination of a suicide prevention hotline for LGTBQ+ people.
In Shelby County v. Holder, Roberts infamously wrote that “things have changed dramatically” in states that used to disenfranchise Black voters—and thus led the way in knocking down a central pillar of the historic Voting Rights Act of 1965. His reasoning: States enjoy equal sovereignty. In this dark vision, which the post–Civil War amendments repudiated, equal dignity of the states matters far more than the actual dignity of trans kids and adults. There’s no telling the horrors that Skrmetti will beget in places gripped by trans panics. But one thing is certain: John Roberts and company, once again, are breaking something that we may not be able to get back.
