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."
