New England Journal of Medicine: How the Supreme Court Got the Tennessee Transgender Case Wrong

In an analysis piece posted on the NEJM website, law professor Scott Skinner-Thompson criticizes SCOTUS's recent opinion in the Skrmetti case (https://www.supremecourt.gov/opinions/24pdf/23-477_2cp3.pdf). In this case, the Court upheld Tennessee's ban on "the use of certain medical procedures for treating transgender minors." In particular, the law prohibits a healthcare provider from

"[s]urgically removing, modifying, altering, or entering into tissues, cavities, or organs of a human being,” or “[p]rescribing, administering, or dispensing any puberty blocker or hormone,” for the purpose of (1) “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” or (2) “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity” (citations omitted). 

The author starts -- as did Chief Justice Roberts in his opinion for the majority -- with a brief recitation of the misery and suffering the Tennessee ban virtually guarantees. That, of course, is not enough of a reason to strike down a state statute, even one as cruel and misguided as Tennessee's -- not to mention the similar laws in 20 additional states.

The fate of the plaintiffs' challenge to the Tennessee statute turns, as is so often the case, on the lawyerly notion of standard of review. The phrase refers to the lens through which challenged statutes are viewed and required different levels of justification from the government when its law is challenged on Equal Protection of Due Process grounds (among others). At one end of the spectrum is "rational basis" review. The question for a reviewing court is two-fold: (1) is there any conceivable governmental interest -- whether it was considered by the enacting legislature or not -- that is furthered by the law, and (2) is the law reasonably related to that interest. Sound like a slam-dunk for the state? It almost always is. The last time I looked, only five laws have ever flunked the rational-basis test (though, like nearly everything else in Constitutional Law, that number is debated). Most laws get this extremely low level of judicial review, so when the Court chooses that standard of review, it's usually lights out for the challenger.

There are, however, a couple of higher standards of review -- "intermediate scrutiny" and "strict scrutiny." Strict scrutiny is exceedingly difficult for the government to satisfy; the late Stanford law prof Gerald Gunther described it as "strict in theory, fatal in fact." (That was surely an overstatement; historically governments have enjoyed a non-zero success rate in such cases of 30%.) 

Discrimination on the basis of sex, however, requires the government to justify its law under the more forgiving review standard of "intermediate scrutiny" (sometimes referred to as "heightened scrutiny" or "rational basis with teeth"). To succeed under this standard, the government must prove that it is pursuing an important governmental interest and that the law in question is substantially related to that important governmental interest.

So the controlling question in Skrmetti came down to this: Was the Tennessee legislature's ban on most treatments for transgender minors a distinction based upon sex. If yes, intermediate scrutiny would be triggered, making it materially more difficult for the state to get a favorable ruling The Sixth Circuit Court of Appeals said the ban did not implicate sex and upheld the statute under rational basis review. The Supreme Court agreed with the Sixth Circuit and affirmed.

The result at first (and second and third) blush is surprising. As the quotes from the law at the top of this post show, the law is riddled with references to "sex." The majority justices tied themselves into knots in their effort to avoid that characterization, concluding (in the words of Chief Justice Roberts) that the law "prohibits healthcare providers from administering puberty blockers or hormones to minors for certain medical uses, regardless of a minor’s sex." If the law doesn't discriminate on the basis of sex, rational basis review applies and, as usual, the law easily passes the lowest level of review.

Prof. Skinner-Thompson argues that this conclusion is based on two logical errors. First, he relies on an argument made by Justice Sotomayor in dissent:

[A]s Justice Sonia Sotomayor points out in her dissent, the excluded medical purpose is defined with reference to a person’s sex: “Key to whether a minor may receive puberty blockers or hormones is whether the treatment facilitates the ‘medical purpose’ of helping the minor live or appear ‘inconsistent with’ the minor’s sex. That is why changing a patient’s sex yields different outcomes” under the statute.

Skinner-Thompson's second argument concerns transgender discrimination:

The majority concludes that the statute does not exclude people on the basis of transgender status but instead “removes one set of diagnoses — gender dysphoria, gender identity disorder, and gender incongruence — from the range of treatable conditions.”

This interpretation is plainly wrong; the statute specifically excludes minors who “identify with” a gender inconsistent with their sex assigned at birth from receiving the relevant treatments. Even Justice Samuel Alito in his concurrence notes that “a strong argument” exists that the statute imposes a classification on the basis of transgender identity. But he, like Justices Amy Coney Barrett and Clarence Thomas, would conclude that drawing lines on the basis of transgender identity does not trigger heightened scrutiny — a question that the majority opinion avoids. 

The Court's opinion in Skrmetti offers a green light to all state legislators who are itching to deny appropriate medical treatment for transgender youth. The majority does what it can to conjure up medical doubt about these medical treatments, but the Tennessee law was opposed by a dizzying array of relevant medical associations. See Brief of Amici at p. 13 et seq. Their brief begins:

The [Tennessee law] prohibits healthcare providers from providing patients under the age of 18 with critical, medically necessary, evidence-based care for gender dysphoria. Denying such evidence-based medical care to adolescents who meet the requisite medical criteria puts them at risk of significant harm. Below, amici provide the Court with an accurate description of the relevant treatment guidelines and summarize the scientific evidence supporting the genderaffirming medical care for adolescents that is prohibited by [Tennessee]. (footnotes omitted; emphasis added)

To which six justices of the Supreme Court said "Meh."  

SCOTUS Upholds Tennessee's Prohibition Against Transgender Treatments for Minors

This morning the Court handed down its decision in United States v. Skrmetti, No. 23-477 by a vote of 6-3 along entirely predictable political lines. Justice Roberts wrote the majority opinion, in which the Court held that the lower appellate court correctly applied the rational basis standard of review, rather than heightened judicial scrutiny of the Tennessee law. 

The Chief Justice described rational-basis review this way: "Under this standard, we will uphold a statutory classification so long as there is 'any reasonably conceivable state of facts that could provide a rational basis for the classification.'” He concluded that the Tennessee law "clearly meets this standard." Indeed, you can count on the fingers of one hand the number of Supreme Court cases in which the government's action failed the rational-basis test.

So the real battle in this case was over the correct standard of judicial review, an issue that is often -- as it was here -- dispositive, even if -- as it was here -- it was hotly contested. How wide and deep was the disagreement? Here's the lineup of opinions:

1. ROBERTS, C. J., delivered the opinion of the Court, in which THOMAS, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined, and in which ALITO, J., joined as to Parts I and II–B. 
2. THOMAS, J., filed a concurring opinion.
3. BARRETT, J., filed a concurring opinion, in which THOMAS, J., joined.
4. ALITO, J., filed an opinion concurring in part and concurring in the judgment. 
5. SOTOMAYOR, J., filed a dissenting opinion, in which JACKSON, J., joined in full, and in which KAGAN, J., joined as to Parts I–IV. 
6. KAGAN, J., filed a dissenting opinion. 

Not quite a record,* but that's a lot of back-and-forth over the dividing line between rational-basis review and intermediate scrutiny: sex. If Tennessee's transgender treatment ban descriminates on the basis of sex, it should be subjected to heightened review. That's the issue underlying the Court's choice of judicial-review standard. I will leave it to you to review the debate that's spread across 118 pages. I'll add just a few notes from the opinions:

"An estimated 1.6 million Americans over the age of 13 identify as transgender, meaning that their gender identity does not align with their biological sex. See 1 App. 257–259; 2 id., at 827. Some transgender individuals suffer from gender dysphoria, a medical condition characterized by persistent, clinically significant distress resulting from an incongruence between gender identity and biological sex. Left untreated, gender dysphoria may result in severe physical and psychological harms." (Majority opinion) Including suicidal ideation. But, hey, the Tennessee legislature knows what's best for these minors.

"The United States asserted that “the medical community and the nation’s leading hospitals overwhelmingly agree” with the Government’s position that the treatments outlawed by SB1 can be medically necessary. Brief for United States 35; see also Brief for Respondents in Support of Petitioner 5 (asserting that “[e]very major medical association in the United States” supports this position). The implication of these arguments is that courts should defer to so-called expert consensus. . . . [T]here are particularly good reasons to question the expert class here, as recent revelations suggest that leading voices in this area have relied on questionable evidence, and have allowed ideology to influence their medical guidance." (Thomas, J., concurring). Justice Thomas offered three additional reasons to reject the expert opinion of "every major medical association in the United States," but this one is based upon Justice Thomas's medical opinion.

Justices Barrett and Alito hang their hats on their rejection of transgender as a "suspect class," the necessary predicate for heightened judicial review. Both compare the same characteristics of transgender persons as a class to the characteristics of approved suspect classes: sex, race, and national origin. Justice Both accept the assertion that transgender individuals face discrimination, which is one of the defining characteristics of a "suspect class." But Justice Barrett quite explicitly and Justice Alito more implicitly conclude it's not the right kind of discrimination. Private discrimination doesn't count; it has to be de jure discrimination. I'm not enough of a student of constitutional law to know whether this qualification is something new, but neither justice cites a case holding that only de jure discrimination counts in the determination of a "suspect class."

Justice Sotomayor cuts to the heart of the matter:

To give meaning to our Constitution’s bedrock equal protection guarantee, this Court has long subjected to heightened judicial scrutiny any law that treats people differently based on sex. See United States v. Virginia, 518 U. S. 515, 533 (1996). If a State seeks to differentiate on that basis, it must show that the sex classification “serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives.” Ibid. (internal quotation marks omitted). Such review (known as intermediate scrutiny) allows courts to ascertain whether the State has a sound, evidence-based reason to distinguish on the basis of sex or whether it does so in reliance on impermissible stereotypes about the sexes. Today, the Court considers a Tennessee law that categorically prohibits doctors from prescribing certain medications to adolescents if (and only if) they will help a patient “identify with, or live as, a purported identity inconsistent with the minor’s sex.” Tenn. Code Ann. §68–33– 103(a)(1)(A) (2023). In addition to discriminating against transgender adolescents, who by definition “identify with” an identity “inconsistent” with their sex, that law conditions the availability of medications on a patient’s sex. Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.

Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny. The majority contorts logic and precedent to say otherwise, inexplicably declaring it must uphold Tennessee’s categorical ban on lifesaving medical treatment so long as “‘any reasonably conceivable state of facts’” might justify it. Ante, at 21. Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons

transgender children and their families to political whims.

In sadness, I dissent.

Health Affairs: "The Impact Of The Election On Health Policy And The Courts"

The nonpartisan and highly respected journal, Health Affairs, today posted an analysis of some of the more conspicuous (and worrying) changes to the health care scene we might expect to see once Donald Trump's administration is in place. It is, as usual, well worth reading in whole.

The areas that are discussed include:

• the Affordable Care Act (ACA) (primary concern: allowing premium tax credit enhancements to expire entirely after 2025, which could result in 4 million people losing their health insurance coverage; also -- whether by statute, agency regulation, or executive order -- any number of the ACA's protections are at risk)
• Medicaid (during the campaign Trump vowed to leave Social Security and Medicare alone; "experts noted that Medicaid was conspicuously absent from the conversation")
• reproductive health care (abortion, LGBTQ nondiscrimination, reviving the Comstock Act, changing the Administration's position in state and federal lawsuits)
• nondiscrimination and health equity ("Health care is a civil rights issue. . . . Anti-discrimination protections in health are also likely to suffer major blows going forward."
• Medicare Drug Negotiation Program (hard to believe that a program that will save the government and citizens billions will be watered down, but Big Pharma has hated this law from the beginning and it has some attentive allies in the new administration)
• public health (RFK, Jr. -- need I say more? He was named as Trump's nominee for Secretary of HHS; the mind reels)
• the courts (Yup. From the Supreme Court on down, expect change)

The end. (Take that any way you want.)

SCOTUS Grants Review in Transgender-Care Case for OT 2024

Amy Howe at SCOTUSBlog summarized the Court's action succinctly:

The justices on Monday agreed to take up a challenge to a Tennessee law that bans gender-affirming care for transgender minors. The law bars treatments such as puberty blockers and hormone therapy for transgender patients under 18. The court will hear arguments in the case in the fall, with a decision likely by next summer.

This will be all over the news tonight and in tomorrow's morning papers, so I will keep this post brief. I'm sure there will be more posts to follow over the next twelve  months. As pointed out in the Solicitor General's petition for review, "Although [transgender] care has been provided to adolescents for decades, in the last three years eighteen other States have adopted categorical bans like Tennessee’s. . . . Two additional States have adopted bans with very limited exceptions." (Petition at p. 3, text and n.1) Beyond the sheer numbers, limitations and prohibitions on transgender care has become a flashpoint in the current culture wars in this country.  

1. The case: United States v. Skrmetti, Docket No. 23-477 (order list for June 24, 2024)
• The decision below: L.W. v. Skrmetti, 83 F.4th 460 (6th Cir., Sept. 28, 2023) (PDF) -- reversing preliminary injunctions in two cases -- one from Kentucky and the other from Tennessee; the constitutionality of only the Tennessee statute is before the Supreme Court)
• Question presented: "Whether Tennessee Senate Bill 1 (SB1), which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the  minor’s sex and asserted identity,” Tenn. Code Ann.  § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment."
2. The statute:
• The Tennessee statute: “Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity," (codified at Tenn. Code Ann. § 68-33-101 et seq.)
• The Kentucky statute (not included in the issue presented (and accepted) for review): "An Act Relating to Children," 2023 Ky. Acts 775 (codified at Ky. Rev. Stat. Ann. § 311.372)