On December 4, the Supreme Court heard oral arguments in U.S. v. Skrmetti, a lawsuit challenging Tennessee’s ban on gender-affirming care for minors. In nearly two and a half hours of energetic argument, parties hotly debated what legal standard to apply, whether the state had a persuasive justification for its attempt to ban the care, and the very nature and purpose of the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution.

Tennessee’s law, SB1, prohibits medical practitioners from providing gender-affirming puberty blockers, hormones, or surgery to transgender youth, but permits the same treatments for minors whose gender identity matches their sex assigned at birth. Tennessee’s law is one of 24 nationwide that comprehensively ban gender-affirming care for transgender youth. Two additional states have bans on surgical treatments alone. (See our 2024 analysis of the state laws.) Most of the bans have been challenged in either federal or state courts.

What standard should the Court apply?

U.S. v. Skrmetti is the first time the Supreme Court has directly considered how the Equal Protection Clause applies to gender-affirming care for minors. A central question the justices must decide is the standard of review the court should use—in other words, how skeptically the Court should look at the law. In Equal Protection cases, the standard of review is determined by the classification the government party is making. If the classification is one that the laws have found to be “suspect,” such as distinctions based on race, the Court is likely to treat it with skepticism. If the classification is one that isn’t considered suspect, such as age, the Court will look more deferentially at the law—and it is likely to be upheld.

The crux of the argument this week by the U.S. Solicitor General and the original plaintiffs was that the law should be treated with skepticism, because it facially discriminates on sex. 

Sex classifications have historically received “intermediate” scrutiny, which means that the Court will apply some degree of skepticism. However, the state could still justify its actions if they are deemed to be important enough. The crux of the argument this week by the U.S. Solicitor General and the original plaintiffs in the case (represented by Chase Strangio, the first openly transgender lawyer to argue before the Supreme Court) was that the law should be treated with skepticism, or heightened scrutiny, because it facially discriminates on sex. In fact, SB1 explicitly uses the word “sex” to categorize people. Justice Ketanji Brown-Jackson emphasized this point repeatedly, saying, “I had understood that it was bedrock in the equal protection framework that there was a constitutional issue in any situation in which the legislature is drawing lines on the basis of a suspect classification…”  

The Tennessee Attorney General argued that SB1 does not make a sex classification at all, explaining that the legislature was drawing lines across age (minors versus adults) and purpose (prohibiting gender transition for all sexes), both of which, he argued, were well within the power of the state to regulate without meriting skepticism from the court. Justice Samuel Alito leaned on his own statements in the 2022 abortion case, Dobbs v. Jackson Women’s Health Organization, to provide support for this argument, offering several hypotheticals to assert that states can regulate medical procedures even if the procedure is related to biological sex. However, the Solicitor General pushed back by reminding the Court that unlike the scenarios Justice Alito described, where sex was implicated only indirectly, SB1 explicitly makes distinctions based on sex in the plain text of the statute.

Can Tennessee justify the ban?

Ultimately, the argument on Wednesday was centered around the standard of review, but there is another component to equal protection analysis—whether the state can justify its actions. Justices Alito and Brett Kavanaugh spent considerable time discussing allegations raised by Tennessee and several amici about the efficacy and risks of gender-affirming care and the state’s interest in regulating those treatments in response. Although the sources they referenced have been determined by experts to be inaccurately cited, misleading, or unreliable, the Justices suggested that the state would nonetheless be justified in relying on them. Justice Kavanaugh argued for judicial restraint, postulating that “… we look to the Constitution, and the Constitution doesn't take sides on how to resolve that medical and policy debate.”

The Williams Institute at UCLA School of Law is an academic research institute dedicated to conducting rigorous, independent research on sexual orientation and gender identity law and public policy.