Some Takes on US v. Skrmetti

June 23, 2024

Yesterday, I had a fun chat with Josh Howie on Free Speech Nation about US v. Skrmetti, which you can view here, if you’d like.

In this case, the state of Tennessee enacted a law that protects minors from harmful drugs such as puberty blockers and opposite-sex hormones. It is well established that such drugs cause long-term harm such as sterility, disease, and the inability to develop sexual function as an adult.

And yet, a group of minors and their parents, represented by the ACLU (where I worked from 2012 to 2014), sued the state, demanding access to these harmful drugs. They argued that the Tennessee law violates their right to equal protection of the law under the 14th Amendment to the Constitution. The case made its way all the way up to the Supreme Court.

Last Wednesday, the Supreme Court ruled that the Tennessee law is constitutional. On the whole, that’s a good thing, and I’m happy about the outcome. However, the Court did not go as far as I wanted it to.

At the heart of the matter is the question of whether claims about so-called “gender identity” discrimination brought under the Equal Protection Clause get subjected to what’s called “heightened scrutiny.” If the phrase “transgender people” qualifies as what’s called a “quasi-suspect class,” such claims of discrimination would be subjected to intermediate scrutiny.

WDI USA had filed an amicus brief that argued that (1) “transgender” cannot be protected legally because it has no coherent meaning, is not immutable, and does not describe a politically powerless group; (2) children have a right to grow into adulthood and to be protected from the harms that result from blocking puberty, administering opposite-sex hormones, and/or performing surgeries to disguise sex; and (3) sex is grounded in material reality, whereas “gender” is regressive sexist stereotypes.

The 6-3 majority did what we asked and affirmed the Sixth Circuit Court of Appeals ruling from September 2023 that the Tennessee law is constitutional, which is great. Paid subscribers can listen to last Friday’s episode of Woman’s Hour to hear about why I’m still a bit unsatisfied with the ruling, though the concurrences are helpful.

Lots of commentators had lots of takes about the Supreme Court’s decision, and in this post I’ll explore some of them.

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