On Wednesday, the US Supreme Court ruled in United States v. Skrmetti — a case brought by Joe Biden’s Department of Justice with advocacy groups the American Civil Liberties Union and Lambda Legal, opposing Tennessee’s ban on youth gender medicine. While much of the press has reported the ruling as upholding the ban or signalling the end of “gender-affirming care” for minors, the reality is at once narrower and more complex.

Two years ago, Tennessee passed SB1, which barred “healthcare providers from prescribing, administering, or dispensing puberty blockers or hormones to any minor” for gender dysphoria or gender incongruence. Drugs which could be used to stall precocious puberty in children, say, or treat cancer in adults, were prohibited for the purpose of affirming a transgender identity. This, the plaintiffs claimed, was sex discrimination — a violation of the Fourteenth Amendment’s Equal Protection Clause in the US Constitution. That, not whether a state had a right to ban these treatments, was the assertion the Supreme Court weighed.

In a six-to-three ruling, breaking down along political lines, the court ruled that SB1 “is not subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment and satisfies rational basis review”. Per the six conservative justices, these treatments weren’t being denied to one sex and not to another, which would constitute sex discrimination. Rather, they were being denied based on age and condition, which are not protected classes. Thus, SB1 need only withstand the lowest level of scrutiny, known as “rational basis”. In such instances, the onus is on the plaintiff to prove that the law is faulty; legislation subject to rational basis tends to survive litigation. The lower court’s ruling — in favour of the ban — can remain.

Had the Supreme Court considered transgender people a protected class, lower courts would have had to apply “intermediate” scrutiny, in which the responsibility would have been with the State to prove the law worthy. Laws which receive heightened scrutiny are less likely to survive litigation, and it would have been much harder for the lower court’s ruling to stick.

If this all sounds wonkier and less dramatic than “Youth gender medicine is done!” that’s because it is. States which haven’t banned the practice don’t have to. States which have can’t be challenged based on sex discrimination in the US Constitution — but that doesn’t mean these bans can’t be challenged for other reasons, or challenged based on sex discrimination clauses in state constitutions, or that the ACLU and other advocacy groups won’t continue to fight them.

But will they bother? Maybe not. Though the ruling does not give states a blanket go-ahead to ban youth gender medicine, and neither enshrines trans identity as a protected class nor prevents it from becoming one later, the ruling signals that it’ll be hard to find an argument to sway the conservative majority.

Unlike many of the most recent Supreme Court decisions, which somehow found unanimity, Skrmetti broke down along ideological lines. The liberal justices largely ignored the question at hand: whether the law violated the Constitutional clause. Instead, Justice Sonia Sotomayor wrote that “the Court abandons transgender children and their families to political whims”, and that she dissented “in sadness”. It was an emotional response, not a legal or logical one.

The conservatives may be politically aligned, but they also have science on their side. Sotomayor insisted that gender-affirming care is “lifesaving medical treatment”. But Justice Clarence Thomas wrote: “recent revelations suggest that leading voices in this area have relied on questionable evidence, and have allowed ideology to influence their medical guidance.” Indeed, he described Sotomayor’s own stance.

This ruling doesn’t weigh in on the larger issues behind youth gender medicine — such as its origins in the Netherlands, where almost all of the children who transitioned were same-sex attracted, and where gender non-conforming adolescents essentially transformed into gender-conforming adults. It doesn’t address the completely different cohort of young people lining up for these procedures in the past decade, or the shoddy evidence for the treatments’ safety and efficacy. Nor does it discuss the plight of detransitioners, who have experienced almost unfathomable harm at the hands of physicians. After the ruling, the American Academy of Pediatrics continued to assert that “the science still supports gender-affirming care” — even though that is objectively untrue.

The ideological breakdown of the decision is depressing, because it moves the issue into the realm of abortion: legal in some states and illegal in others. It may stop some states from offering these treatments, but it won’t help Americans reach a ceasefire in the culture war.

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Lisa Selin Davis is the author of Tomboy. She writes at Broadview on Substack.

LisaSelinDavis

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