With the arrival of June comes the first true glimmers of a patently American summer: vibrant Pride parades, weekend barbecues, festivals galore — and the looming release of the Supreme Court's most contentious rulings. Among this year's slate is a landmark case on gender-affirming care for minors that will have sprawling implications for transgender youth and adults, alongside the potential to upend decades of anti-discrimination law.
U.S. v. Skrmetti concerns Tennessee's 2023 gender-affirming care ban, which prohibits physicians from providing medical treatments like hormone therapy or puberty blockers to minors seeking to transition. During oral argument in December 2024, the Biden administration argued that a patient's birth-assigned sex determines what treatment the law prohibits or allows; for example, providing someone assigned female at birth with estrogen therapy is not prohibited under the law, while providing that treatment to a child assigned male at birth is.
The state, on the other hand, argued that the law doesn't determine what treatments are allowed based on sex or transgender status but instead on the reason why someone seeks the treatment; a child could seek puberty blockers to treat precocious puberty but not to delay puberty while they make sense of their gender identity.
Though the Trump administration has since notified the Supreme Court that it thinks the ban does not violate the Equal Protection clause, it has nevertheless urged the justices to decide the case. The Supreme Court will determine whether transgender Americans have a constitutional protection from discrimination and, if so, whether it's on the basis of sex or under a new protected classification of transgender identity.
A decision is expected by the close of the judicial session at the end of the month.
No matter how the justices decide, the case will be far-reaching, impacting access to health care for trans youth, trans Americans' protections against discrimination and, potentially, the foundation of equal protection doctrine. If December's oral argument was any indication of its thinking (legal experts say it isn't always), the highest court's ruling stands a good chance of unleashing greater harm onto a community of less than two million people already facing broad legislative attacks at the state level and targeted executive actions at the federal.
But Rutgers University law professor Katie Eyer, who specializes in anti-discrimination law, takes a slightly more optimistic view. The leading scholar in LGBTQ+ employment rights, social movements and constitutional change told Salon that, while four of the conservative justices seemed likely to vote against the plaintiffs, Justice Amy Coney Barrett's thoughtful questioning — and Justice Neil Gorsuch's opinion expanding Title VII anti-discrimination protections based on sexuality and gender identity in Bostock v. Clayton County — indicate it's still possible the plaintiffs could prevail.
Even if the Supreme Court ultimately rules in favor of Tennessee, she added, the LGBTQ+ community has survived these attacks before — and reversed them.
This conversation has been edited for length and clarity.
I understood the state to be arguing that they're basing the denial of care on the purpose or the use of said medical care, such as to alter a child's gender presentation or help the child transition, versus slowing precocious puberty. Is that accurate? Can you break down in plain terms what all that means?
You're absolutely right. Their full argument is that this law does not distinguish based on sex or transgender status, but instead the distinction is based on medical use. The problem with that argument is that is just not what the statute does. The statute doesn't specify that you even need a medical use for these types of treatments. To give an example, outside the context of a trans youth receiving hormone therapy, hormone therapy could be used for no medical purpose in the state of Tennessee. The most concrete example of that is that a cisgender child in Tennessee can still get a breast enhancement for no medical purpose. The law does not address that. It does not prohibit it. So although they frame the argument in those terms, that's not actually what the law says. You saw some pushback on that, certainly from the progressive judges at oral argument, pointing out that that's not actually what the law here says.
What is the question at the heart of this case that the justices are set to decide? During oral argument, there was a broader range of conversation happening than what I understood to be the actual centerpiece of the case.
I'll just underscore the quintessential question of what could happen to these bans on gender-affirming care for transgender minors. But many of the ways that the court could decide the case would also have much bigger implications for equality law, not just for LGBT people, but for all sorts of groups. That's part of the reason you felt such a wide array of discussions at oral argument: Justice [Ketanji Brown] Jackson bringing up things like the potential implications for interracial marriage. That's because some of the arguments being made by the state here are arguments that could resurrect a type of argument that the court rejected 50 or 60 years ago, during the end of Jim Crow.
On the most general level, there are two big-picture issues they're going to have to address. One is, does this type of discrimination — either because it's sex discrimination or because trans people also get some special protection — get a higher level of scrutiny? And then they might or might not decide the bottom-line question of whether the law is valid. So if they say the courts have to take a closer look, there's a possibility they won't actually apply that closer-look standard themselves; they'll just send it to the court of appeals to say, "Take a closer look under this higher standard." That's actually what the plaintiffs asked them to do, send it back to have them reassess.
I want to know what the stakes of this case are for trans youth, and even trans adults, before we get into the broader applications.
The stakes are obviously enormous for transgender youth and transgender adults, and that's for a few different reasons. First and most obviously, whatever the court decides will profoundly impact access to gender-affirming care. The stakes of the case have gone up even since the court granted review. President [Donald] Trump has attempted to nationalize what was previously a state-by-state attack on gender-affirming care for trans youth. So he issued an executive order that directs the federal government, as much as they can, to go after this issue. It's important to note that the key issues here — there's no reason that they would be different for trans adults compared to a trans minor. So if the court says no closer look is required of this law, that you get just a deferential type of review where the state doesn't have to prove its reasons, that same reasoning would apply to adult care as well. Another key factor about the executive order that we saw is them already pushing into legal adulthood, right? So they covered folks under age 19. It's quite clear that the end game is to try to reduce access to or eliminate access to this care for everybody.
The implication just for access to health care would be very large. Obviously, in the converse, if they rule for the LGBT side of the case, that would have big implications for access to health care for those who are currently unable to access it. Although, again, simply saying the closer look has to be provided doesn't actually determine the outcome. You still have to look at what the government's reasons are. It just becomes a situation in which they have to prove that they have a good basis for it, and courts that have looked at the evidentiary basis have said they don't. They said that the government can't prove its good reason here.
Then the bigger picture is that most of the ways the court could decide the case — not all of them, but most of them — would have bigger implications for all the other laws targeting transgender people right now. Most of the things that the court might say would also have implications for the transgender military ban, or the laws that allow teachers to misgender children, that requires them to out them to their parents, or the ban on trans athletic participation. ... They could write it narrowly in a way where it doesn't reach those other issues, but most of the ways they could decide the case would also have implications for those other issues as well.
Returning to what you mentioned earlier about those broader implications beyond trans youth and trans adults, in what ways will this decision ultimately manifest? I'm thinking about what you just said in terms of the implications for these broader laws, but also of the questions about access to gender-affirming health care and sex discrimination cases in general.
Sex discrimination, and in fact, depending on how they write it, it would potentially affect all groups, including race discrimination, anything else that's protected by equal protection. The arguments for the plaintiffs' side of the case, for the trans side of the case, are fairly conventional applications of existing equality law. So if the court ruled in favor of the trans side of the case, relatively little is likely to change about equality law. The converse is not true. They would have to make some new law in order to rule against the transgender plaintiff here, and in particular, to say no higher level of second-look review applies here. There are a few different ways they could do that, some of which would have much narrower impact, some of which would have much [broader impact]. One possibility is, essentially, they could just make a carve-out for health care and say, "Health care is just different because sometimes you need to focus on identity in health care. We are not going to give this closer-look review when health care is at issue." That would be a carve-out that would affect other groups as well. It would mean that there was a free path for the government when they are targeting health care that might involve a particular group.
The Sixth Circuit, which is the court below, in rejecting the sex discrimination argument, basically said, "Because both boys and girls are subject to the same limitation, that's not sex discrimination. Both groups are burdened equally. So this isn't inequality." For legal scholars and those who know about legal history, this argument is super alarming. That is the basic premise on which the legal defense of Jim Crow and bans on interracial marriage rested. So the argument was, it's not inequality because Black people and white people are subject to the same restrictions. They're both subject to segregation. They both can't marry each other. The court repudiated that very clearly at the end of Jim Crow, and that's why you saw things like Justice Jackson raising the race context at oral argument, basically because that argument in this context is to say, this is in fact discrimination because both boys and girls can't get access to this.
If they embrace it broadly, right, it would have huge implications and very concerning implications. Even if they embrace it just for sex, it would also have serious and, to many people, very concerning implications. For example, you could characterize a rule that men and women both have to dress consistently with the norms associated with their sex as applying equally. Right? Men have to wear pants, women have to wear skirts, and the courts couldn't look at that closely. That doesn't make any sense to most people, right? But that's the nature of the argument that's being made here. As long as both groups get some burden put on them, it's OK.
The other issue is about this issue of whether trans folks should be considered, on their own, the type of group that gets a closer look when they're subjected to discrimination. The state response to that argument has essentially been that the Supreme Court hasn't done this in a long time, and it should officially say it's never going to do so again That obviously also would have implications. That wouldn't be such a big deal for groups that already have protection, but it would create a scenario in which no group in the future could have access to the idea that government discrimination against them is suspicious and should get a closer look by the courts. That really, I think, is both anti-democratic — why should we say it's the end of time for the idea that new groups might need protection? — and also just doesn't have any principal basis in the law.
The most radical thing they could do, which I did not see many signs of at oral argument, would be to take a turn towards originalism, which is something that we've seen across a lot of other areas of constitutional law. That would be a very radical outcome. The court has not followed originalism in equal protection law ever since Brown v. Board of Education. Because it did not necessarily support desegregation, they cut loose from an originalism approach. I don't expect the court to take a hard turn to originalism in this case, but that would be one other thing to look out for, whether they sort of clean up any language and adopt history as more of a metric for equality law. Part of the reason I mention this is that was another thing we actually saw in the Sixth Circuit's opinion, language to this effect that the parties should have briefed sort of history and tradition, this type of originalist background, even though, that's not currently a part of the Supreme Court doctrine.
I know oral argument isn't always an indicator of how the justices may rule, but given all the anti-trans attacks we've seen in recent years — I'm thinking particularly of those anti-trans ads in last year's presidential campaign, the influx of anti-trans legislation at the state level, these early executive orders from the Trump administration, combined with oral argument — what kind of decision are you expecting?
Let me start by saying what the conventional wisdom is, which is to say that the trans side of the case is likely to lose. I've heard maybe 95% of commentators say that was their belief about how the case is likely to turn out. My own view is that that is still the most faithful press, but that there is a significant possibility that we might see a trans victory in this case. I alluded to some of the reasons earlier, but in short, I think we can expect the three progressives to rule for a secondary level of scrutiny. I think there is a real possibility — though not a certainty — that Justice Gorsuch, who authored the Bostock opinion, will also believe that heightened scrutiny is appropriate here. And then the real wild card is Amy Coney Barrett. Again, her questions at oral argument were not decisively in favor of the trans side of the case, but they were genuine and reflected a meaningful engagement with the question of whether transgender people should get this closer, second look, type of review.
If you look not just at the moment that existed at the time of oral argument but what's transpired since then, it's hard for me to imagine that any person with eyes and ears and an even-handed, sensible approach to this could not see why such second-look review is appropriate here. The whole idea is supposed to be that where there are groups where we are worried that discriminatory passions are a piece of the mix, that we don't just take the government's word that it is acting based on benevolent motives. Given the issues that Justice Barrett was wrestling with at oral argument, and given the animus that we've seen in some of the Trump executive orders, certainly my hope is that Justice Barrett will recognize that this is a type of group where we have reason to think at least that type of second-look review is appropriate.
This opinion is either coming during Pride or capping off a month of celebrating LGBTQ+ identity and cultures and bolstering the fight for equality and liberation. Given what you just said and the moment that we're in — where trans and queer communities across the country are experiencing attacks from both the federal and state level, and we're also seeing this weakening of diversity, equity, inclusion policies in so many different areas — what will this decision mean for people?
That's a great question. I mean, if the court issues any sort of ruling in favor of the transgender side of the case — even if that's just, you know, this needs closer look review, and we're going to send it back — that would be an enormous victory and an enormous light of hope. It has been fairly dark for the LGBTQ community. There are people who are leaving the country right now because they do not feel safe who are members of the transgender community. Such a decision would be truly meaningful if, in fact, it comes out in favor of that side of the case. Obviously, the converse is also true. I think a statement from the Supreme Court at this particular moment of "There's nothing to see here. We don't even need to take a look at the evidence to know that this is OK," would have, I think, devastating emotional impact for many in the LGBTQ community.
That being said, I'll also say the LGBTQ community, as you may know, is incredibly resilient and creative. It has faced really low moments like this before. I think, for example, of Bowers v. Hardwick in 1986 at the height of the AIDS crisis. The Supreme Court says it's fine to criminalize gay sex and make gay people presumptive criminals. They don't believe that gay people have families. Obviously, it was a devastating decision, but the community regrouped. They regrouped around activism, and they regrouped legally. Less than 20 years later, they managed to get that opinion overturned. And a couple of things we've seen in this moment — I'm thinking about Florida banning rainbow lights for Pride on the bridges and people just recreated it. This is a resilient, creative community, and I don't expect that this will be the end of the road. I'll put it that way.
