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SUPREME COURT NOT SURE WHY YOU THOUGHT THE EQUAL PROTECTION CLAUSE
MEANT ANYTHING  
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Madiba K. Dennie
June 18, 2025
Balls and Strikes
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_ A law banning healthcare for trans kids does not discriminate
against trans kids, and other pearls of wisdom from the country’s
sharpest legal minds. _

Justices Gorsuch and Roberts,

 

The Supreme Court held today in _United States v. Skrmetti_
[[link removed]] that
the Equal Protection Clause of the Constitution is no obstacle to laws
that deny lifesaving medical care to transgender children. In 2023,
Tennessee lawmakers enacted a law
[[link removed]] that prohibits
medical providers from administering hormone therapy to minors,
if—and this is a big if—the purpose of the treatment is to help
the kid “identify with, or live as, a purported identity
inconsistent with the minor’s sex,” or to alleviate “purported
discomfort or distress from a discordance between the minor’s sex
and asserted identity.” Doctors who prescribe hormones to kids for
other medical reasons can do so. But doctors who try to help trans
kids live happily as trans kids are staring down a $25,000 civil
penalty per violation.

The text of Tennessee’s law also explicitly aims to encourage minors
to “appreciate” and not “become disdainful” of the sex
assigned to them at birth. This is a polite way of saying its goal is
to stop people from being trans, or, put another way, stop trans
people from being. 

Under the Fourteenth Amendment, no state may “deny to any person
within its jurisdiction the equal protection of the laws.” To any
normal person, Tennessee’s law discriminates on the basis of sex,
which is literally the determining factor in whether kids can access
the relevant medications. Justice Sonia Sotomayor illustrates this in
dissent by imagining a hypothetical teen, distressed over unwanted
facial hair that makes them appear masculine. “The doctor’s next
step depends on the adolescent’s sex,” she explains. “Physicians
in Tennessee can prescribe hormones and puberty blockers to help a
male child, but not a female child, look more like a boy; and to help
a female child, but not a male child, look more like a girl.” In
other words, the law straight-up treats kids differently because of
their sex.

The Constitution has a problem with all of that, but the conservative
supermajority on the Supreme Court does not. In his majority opinion,
Chief Justice John Roberts says that Tennessee’s law, which grants
or withholds medical treatment based on sex, does not classify on the
basis of sex. He says that the law, which expressly aims to force
trans kids to conform to their sex assigned at birth, does not
classify on the basis of transgender status. He says the law does not
contain or conceal any classifications that could warrant a closer
look under the Equal Protection Clause. Instead, Roberts insists with
italics, the law only “prohibits healthcare providers from
administering puberty blockers and hormones to _minors_ for
certain_ medical uses_”—two classifications that, he says, do not
“turn on sex.”

And to swat away any argument about the explicitly sex-based text of
the law, Roberts says that text doesn’t count. “In the medical
context, the mere use of sex-based language does not sweep a statute
within the reach of heightened scrutiny,” he says. Eliding how that
sex-based language was actually used, Roberts decided there’s
nothing untoward happening here. Under the Supreme Court’s
precedents, he was thus free to subject the law to the lowest standard
of review, called “rational basis scrutiny.” 

Surprise, it passed: Since Tennessee lawmakers claimed that the law
responded to an “ongoing debate among medical experts”—for
Roberts, a plausible rational justification—he concluded that the
Court should stay out of the matter. “Our role is not to judge the
wisdom, fairness, or logic of the law before us, but only to ensure
that it does not violate the equal protection guarantee of the
Fourteenth Amendment,” he wrote. And since the Court determined it
did not, it should “leave questions regarding its policy to the
people, their elected representatives, and the democratic process.”

You may recognize this move from Justice Samuel Alito’s opinion
in _Dobbs v. Jackson Women’s Health Organization_ rescinding the
right to abortion. There, too, the Court contended that it was
democratic, actually, for judges to render people unequal under law.
Concurring in _Skrmetti_, Justice Clarence Thomas also sang
democracy’s praises but added a verse of antitrans propaganda,
calling for judicial deference to “legislatures, not experts,”
whom he said have “surreptitiously compromised their medical
recommendations to achieve political ends”—a sentence I assume he
wrote while wearing a tin foil hat.

You may also recognize the arguments in _Skrmetti_ as the same
argument the Court rejected in _Loving v. Virginia_, the 1967 case
that struck down bans on interracial marriage. Then, Virginia insisted
there was no equal protection problem because _no_ person could
marry outside their race and _any_ person could marry within their
race, and the legislature should be free to respond to
“scientific” debates about the harms of interracial marriage. Now,
Roberts says there is no equal protection problem because
“_no_ minor may be administered puberty blockers or hormones to
treat gender dysphoria, gender identity disorder, or gender
incongruence.” Further, he says, “minors of _any_ sex may be
administered puberty blockers or hormones for other purposes,” and
“scientific uncertainty” underscores “the need for legislative
flexibility.” (Free editorial tip: If you repeatedly find yourself
relying on italics to do the work that your argument can’t, you
might just be talking out of your ass.)

The rehabilitation of these rejected arguments will have grave
implications, including, most immediately, endangering the lives of
trans kids. Just yesterday, the Trump administration directed the
national suicide prevention hotline to stop
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specialized services to LGBTQ youth. And Sotomayor’s dissent points
out that untreated gender dysphoria can lead to “severe anxiety,
depression, eating disorders, substance abuse, self-harm, and
suicidality,” and that “as many as one-third of transgender high
school students attempt suicide in any given year.” Today, Roberts
and the majority pretended the words of the Constitution don’t mean
anything because, to them, the lives of trans kids don’t mean
anything. 

_MADIBA K. DENNIE is the Deputy Editor and Senior Contributor at Balls
& Strikes, and author of The Originalism Trap: How Extremists Stole
the Constitution and How We the People Can Take it Back
[[link removed]].
Her writing has been featured in outlets including The
Atlantic and The Washington Post. _

_BALLS & STRIKES publishes original commentary and reporting about
courts, the judges who preside over them, and the legal system they
uphold._

_AH, BUT I ALREADY READ NOAH FELDMAN’S BLOOMBERG COLUMNS._

_Balls & Strikes’s coverage is a little different! It is premised on
the reality that interpreting the law is an inherently political act
with real-world consequences: Throughout American history, court
decisions have fueled devastating economic inequality, hollowed out
democracy, blessed all forms of state-sanctioned discrimination, and
erected countless barriers to the cause of racial justice. For all its
lofty rhetoric, the legal system is and has always been less concerned
with protecting the rights of everyday people than it is with enabling
wealthy and powerful interests to exploit them. _

_Balls & Strikes seeks to hold courts, judges, and members of the
legal profession accountable for their failures to fulfill their
professed commitment to the cause of justice, and to facilitate some
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or at the very least, marginally less worse. To that end, in addition
to its coverage of the Court and the courts, Balls & Strikes also
publishes analysis of the judicial nomination and confirmation
processes, the ongoing debate over reform proposals, and other stories
at the intersection of law, policy, and politics. _

_WHY DID YOU PICK A NAME FOR THE SITE THAT MAKES YOU SOUND LIKE A
POORLY-TRAFFICKED BASEBALL BLOG?_

_Balls & Strikes borrows its name from Chief Justice John Roberts,
who, during his confirmation hearings, famously outlined a vision of
judicial modesty by describing the proper role of a judge as “to
call balls and strikes, and not to pitch or bat.” This metaphor
omits key facts that every Little Leaguer knows: Umpires use different
strike zones, apply them flexibly, and are entrusted with a tremendous
amount of power and near-unlimited discretion in its exercise. Balls &
Strikes’s coverage will highlight how the myth of judicial
objectivity confers a sense of legitimacy upon unjust, undemocratic
outcomes, which is precisely why so many powerful people work so hard
to uphold it._

_WHO ARE YOU, EXACTLY?_

_Jay Willis [[link removed]] is the editor-in-chief of
Balls & Strikes. Balls & Strikes is sponsored by Demand Justice, a
nonprofit advocacy organization focused on the courts and legal
issues. All opinions expressed on Balls & Strikes are solely those of
the bylined author, and do not necessarily represent the views or
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* Supreme Court
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* Equal protection
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* U.S. Constitution
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* Fourteenth Amendment
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* hormone therapy
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* sexual discrimination
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* Inequality
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