United States v. Skrmetti: A Close Call
On June 18, 2025, the U.S. Supreme Court issued its highly anticipated decision in United States v. Skrmetti, ultimately upholding Tennessee's ban on gender-affirming care for minors. The ruling marks a pivotal moment in the evolving landscape surrounding equal protection, medical autonomy, and the rights of transgender individuals. With Chief Justice Roberts writing for the majority, the Court resolved the case under rational basis review, declining to afford heightened scrutiny to laws that disparately affect transgender individuals. The opinion, along with a series of concurrences and a forceful dissent, signals significant implications for the regulation of healthcare and constitutional protections in the years ahead.
I. How We Got Here
In 2023, Tennessee passed Senate Bill 1 ("SB 1"), a sweeping law that prohibits healthcare providers from offering or providing to a minor gender-affirming healthcare for the purpose of (a) enabling the minor to identify with, or live as, a purported identity inconsistent with the minor's biological sex; or (b) treating purported discomfort or distress from a discordance between the minor's sex and asserted identity. Among other things, these prohibitions are intended to "protec[t] minors from physical and emotional harm" by encouraging minors to appreciate," rather than "become disdainful of," their biological sex.
Transgender minors, their parents, and the U.S government (as intervenor) filed suit in Tennessee federal court, alleging that SB 1 violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution by discriminatorily targeting transgender youth. District court Judge Robertson partially granted a preliminary injunction, finding that SB1 is subject to "heightened scrutiny" because it: (1) discriminates based on sex by "demarcat[ing] its ban(s) based on a minor's sex;" (2) "treats similarly-situated individuals differently based on transgender status;" and (3) "expressly and exclusively targets transgender people," who, the court held, constitute a "quasi-suspect class."
On appeal, a divided panel of the U.S. Court of Appeals for the Sixth Circuit reversed the preliminary injunction and held that SB 1 is subject only to "rational basis" review because it "regulate[s] sex-transition treatments for all minors, regardless of sex. The plaintiffs petitioned for review by the U.S. Supreme Court, which granted certiorari in June 2024.
II. Equal Protection and Levels of Scrutiny
The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution provides that "No State shall...deny to any person within its jurisdiction the equal protection of the laws." Although this clause was originally adopted in the wake of the Civil War to combat racial discrimination, the U.S. Supreme Court has since interpreted it to prohibit unjustified distinctions among persons or groups in various contexts.
In applying the Equal Protection Clause, the Court has developed a three-tiered framework to evaluate the constitutionality of laws that classify individuals into distinct groups: strict scrutiny, intermediate scrutiny, and rational basis review.
A. Strict Scrutiny
Strict scrutiny is the most rigorous form of judicial review and is applied when a law involves a suspect classification (such as race, national origin, or alienage) or infringes upon a fundamental right. Under this standard, the government has the burden to demonstrate that the classification is narrowly tailored to achieve a compelling governmental interest.
A notable application of strict scrutiny is Loving v. Virginia (U.S. 1967), a landmark case in which the U.S. Supreme Court unanimously struck down a Virginia law that prohibited interracial marriage. The Court held that the law had no legitimate purpose "independent of invidious racial discrimination."
B. Intermediate Scrutiny
Intermediate scrutiny applies to quasi-suspect classifications, most notably sex and legitimacy of birth. Under this standard, the government must show that the classification is substantially related to the achievement of an important governmental interest.
A notable application of intermediate scrutiny is Craig v. Born (U.S. 1976), a case in which the U.S. Supreme Court struck down an Oklahoma law that allowed women to purchase alcohol at age 18 while men had to be 21. The Court held that the law did not serve a substantial government interest and that the sex-based classification was not substantially related to the purported goal.
In recent years, some lower courts have applied intermediate scrutiny or even heightened scrutiny to classifications affecting transgender individuals, arguing that such classifications are analogous to sex-based ones.
C. Rational Basis Review
Rational basis review is the most deferential standard. It applies when the classification does not implicate a suspect or quasi-suspect class and does not burden a fundamental right. Under this standard, a law will be upheld if it is rationally related to a legitimate governmental interest. Courts applying rational basis review typically defer to legislative judgments, even if the classification is imprecise or over-inclusive.
A notable application of rational basis review is Romer v. Evans (U.S. 1996), a case in which the U.S. Supreme Court struck down a Colorado constitutional amendment that allowed the government to discriminate against individuals based on their sexual orientation. The Court held that the law, by depriving individuals of equal protection due to their sexual orientation, failed to "advance a legitimate government interest."
D. Application to Transgender Individuals
To date, the U.S. Supreme Court has yet to definitively determine whether transgender individuals constitute a suspect or quasi-suspect class under the Equal Protection Clause. The closest the Court has gotten to this issue was in its Bostock v. Clayton County opinion in 2020.
In Bostock, the Court held that discrimination against individuals because of their sexual orientation or gender identity constitutes sex discrimination under Title VII of the Civil Rights Act. The Court's holding, however, was limited to Title VII of the Civil Rights Act of 1964, not the Equal Protection Clause.
Lower courts have diverged on the issue. Some have applied heightened scrutiny, concluding that transgender individuals are entitled to greater constitutional protections, while others have applied only rational basis review. The Supreme Court’s decision in United States v. Skrmetti declined to resolve the issue, instead analyzing the Tennessee law under rational basis review without deciding whether a higher standard might be appropriate in future cases.
III. The Majority Opinion
Chief Justice Roberts delivered the 6-3 opinion of the Court, joined by Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett. The majority, applying rational basis review, upheld SB 1, finding that the statute did not violate the Equal Protection Clause.
A. Classification and Standard of Review
The fundamental issue for the Court was whether SB 1 creates a classification that triggers heightened scrutiny. The plaintiffs contended that the law discriminates against transgender minors and therefore should be subject to either intermediate or strict scrutiny, analogous to the treatment of sex-based classifications. Tennessee, in contrast, argued that the law draws no impermissible classification and instead regulates medical procedures based on the age of the patient and the purpose for which the treatment is sought.
The majority sided with Tennessee, holding that the law does not facially classify on the basis of sex or transgender status. Chief Justice Roberts wrote:
"On its face, SB 1 incorporates two classifications. First, SB 1 classifies on the basis of age. Healthcare providers may administer certain medical treatments to individuals ages 18 and older but not to minors. Second, SB 1 classifies on the basis of medical use. Healthcare providers may administer puberty blockers or hormones to minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence. Classifications that turn on age or medical use are subject to only rational basis review."
Perhaps the strongest argument proffered by the plaintiffs is that SB 1 works as a sex-based classification because application of the law turns on sex, an argument akin to the analysis and holding of the U.S. Supreme Court in Bostock. Writing for the majority in Bostock, Justice Gorsuch reasoned that discrimination against a person for being transgender inherently involves treating that individual differently because of sex. For example, firing a transgender woman (someone assigned male at birth who identifies as female) for presenting as female—while retaining a cisgender woman for the same conduct—necessarily involves a sex-based distinction. The Court emphasized that under Title VII’s but-for causation standard, if changing the employee’s sex would have yielded a different outcome, then sex is a determinative factor and the law is violated. Though Bostock was decided under Title VII’s statutory framework rather than constitutional equal protection principles, its reasoning has influenced subsequent litigation concerning discrimination based on gender identity.
In Skrmetti, the Court expressly declined to extend the Bostock reasoning to the Equal Protection context. Instead, the Court emphasized that Bostock was grounded in the statutory interpretation of Title VII and its but-for causation standard, not constitutional equal protection doctrine. Chief Justice Roberts wrote that while Bostock addressed what it means to discriminate “because of sex” in an employment statute, the Equal Protection Clause requires a different analysis—focusing on whether the law classifies individuals based on sex or a quasi-suspect category. Because SB 1 applies to all minors regardless of sex and regulates treatment based on medical purpose rather than identity, the Court held that it did not facially discriminate based on sex or transgender status. Thus, Bostock did not control, and the Court declined to apply heightened scrutiny.
The Court emphasized that the Equal Protection Clause does not require heightened scrutiny for all laws that affect identifiable groups unequally. Instead, unless the law employs a suspect or quasi-suspect classification—or burdens a fundamental right—it is evaluated under rational basis review. Accordingly, the majority applied the most deferential level of scrutiny.
B. Application of Rational Basis Review
As explained above, a statute will satisfy rational basis review if it is “rationally related to a legitimate governmental interest.” The majority found that Tennessee’s asserted interests—protecting the health and well-being of minors and exercising caution in the face of medical uncertainty—were legitimate and sufficient to justify the law.
Chief Justice Roberts cited the ongoing scientific debate regarding the long-term effects and efficacy of gender-affirming medical interventions for minors. He pointed to the findings of the United Kingdom’s Cass Review and recent policy changes in several European countries, which have imposed additional restrictions on the use of such treatments. The majority concluded that Tennessee’s cautious approach was constitutionally permissible:
"This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field. The voices in these debates raise sincere concerns; the implications for all are profound. The Equal Protection Clause does not resolve these disagreements. Nor does it afford us license to decide them as we see best. Our role is...to ensure that [the law] does not violate the equal protection guarantee of the Fourteenth Amendment. Having concluded it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process."
In support of this conclusion, the Court reiterated that legislatures, not courts, are best equipped to weigh such considerations. The majority disclaimed any judicial role in resolving medical debates and warned against constitutionalizing contested scientific standards.
C. Avoidance of Broader Constitutional Questions
Significantly, the majority declined to address whether transgender individuals constitute a quasi-suspect class under the Equal Protection Clause. Nor did it consider whether the right to access gender-affirming care might fall within the ambit of substantive due process. Instead, the Court narrowly framed its analysis as addressing only the standard of review applicable to a facially neutral medical regulation. Chief Justice Roberts noted:
"But where a law’s classifications are neither covertly nor overtly based on sex, the law does not trigger heightened review unless it was motivated by an invidious discriminatory purpose. No such argument has been raised here."
This restrained approach mirrors the Court’s pattern in recent terms of avoiding broader doctrinal shifts unless squarely presented. Nonetheless, by declining to extend heightened scrutiny to laws affecting transgender individuals, the Court implicitly signaled skepticism toward future claims premised on transgender status as a protected class.
IV. Concurring Opinions
A. Justice Barrett
Justice Barrett authored a concurring opinion (joined by Justice Thomas) emphasizing her view that transgender individuals do not qualify as a suspect or quasi-suspect class under the Equal Protection Clause. Although she agreed with the majority’s decision to apply rational basis review, she wrote separately to express concern that courts and commentators have too readily analogized transgender classifications to those involving sex.
Barrett distinguished transgender status from classifications historically subjected to heightened scrutiny, such as race, national origin, or sex. She argued that the characteristics typically justifying such scrutiny—immutability, political powerlessness, and a history of purposeful discrimination—do not clearly attach to transgender status in the same manner. Citing the Court's 1985 Cleburne opinion, she observed that the Court has been reluctant to expand the list of protected classes and warned that doing so risks diluting the analytical rigor that heightened scrutiny requires.
Justice Barrett also stressed that the Equal Protection Clause does not serve as a vehicle for judicial resolution of complex policy disagreements. In her view, courts should not substitute their judgment for that of legislatures in areas of contested science or emerging medical norms:
"The question of how to regulate a medical condition such as gender dysphoria involves a host of policy judgments that legislatures, not courts, are best equipped to make."
Her concurrence thus reinforces the majority’s emphasis on judicial restraint and legislative deference and signals her skepticism that laws discriminating against transgender individuals implicate heightened scrutiny.
B. Justice Thomas
Justice Thomas authored a separate concurrence expressing deep skepticism about the use of medical consensus as a constitutional benchmark. Drawing parallels to historical examples where prevailing medical or scientific opinion proved erroneous or harmful—such as the now-discredited practice of eugenics endorsed in the Court's 1927 Buck opinion—Justice Thomas cautioned against judicial reliance on expert authority in contentious medical domains.
He further criticized the plaintiffs’ reliance on major medical associations and international guidelines supporting gender-affirming care, asserting that such organizations are not immune from ideological influence. In his view, the U.S. Constitution does not elevate professional consensus to the level of constitutional command:
"Taken together, this case serves as a useful reminder that the American people and their representatives are entitled to disagree with those who hold themselves out as experts, and that courts may not 'sit as a super-legislature to weigh the wisdom of legislation.'”
Justice Thomas also questioned whether minors can ever provide informed consent to procedures that alter their biological development and have irreversible consequences. Although he did not expressly argue that gender-affirming care is categorically unconstitutional, his opinion reflected a broader concern about the ethics and permissibility of such treatments in light of the state’s interest in protecting minors.
C. Justice Alito
Justice Alito concurred in the judgment, agreeing that SB 1 survives rational basis review but wrote separately to challenge the dissent's argument that the law’s reference to sex-linked characteristics necessarily invokes intermediate scrutiny.
He hypothesized that many common medical regulations—such as those governing mammograms, prostate screenings, or fertility treatments—necessarily involve sex-based biological distinctions. If every such regulation triggered heightened scrutiny simply because it implicated biological sex, Justice Alito argued, courts would become entangled in nearly every aspect of health regulation:
"SB 1 targets only the experimental medical procedures that the legislature found to be unsupported and dangerous. It does not regulate any other behavior in which minors might engage for the purpose of expressing their gender identity. It says nothing at all about names, pronouns, hair styles, attire, recreational activities or hobbies, or career interests. And the law’s restrictions apply only to the treatment available to minors. Once individuals reach the age at which they are able to make informed decisions about medical care, the law imposes no restrictions."
Although Justice Alito did discuss transgender classifications more broadly, his concurrence emphasized the need for doctrinal consistency in applying Equal Protection principles to medical regulation and reinforced the majority’s deferential stance.
V. The Dissenting Opinions
A. Justice Sotomayor
Justice Sotomayor authored a strong dissent, asserting that SB 1 constitutes a clear violation of the Equal Protection Clause by targeting transgender minors for politically-disfavored medical treatment. She contended that SB 1 facially discriminates on the basis of sex and transgender status because it permits certain medical treatments for cisgender minors while categorically denying them to transgender minors. She wrote:
"This case presents an easy question: whether SB 1's ban on certain medications, applicable only if used in a manner "inconsistent with...sex," contains a sex classification. Because sex determines access to the covered medications, it clearly does."
The dissent's argument is more easily understood by looking at Figure 1 below. In the dissent's view, because use of medical treatments (e.g., puberty blockers, hormonal therapy, etc.) are tied to an individual's biological sex, restrictions of such treatment, regardless of the underlying purpose, inherently discriminate based on sex. For example, under SB 1, a biological male could receive puberty blockers for the purpose of treating a precocious puberty but could not receive the same treatment for the purpose of gender transition.
Justice Sotomayor argued that the majority’s focus on the law’s medical purpose-based distinctions obscured its real-world effect: denying access to medical care only to those who seek it for gender-affirming purposes. Mirroring Bostock, she reasoned that distinctions drawn on the basis of gender identity are inherently sex-based and therefore warrant at least intermediate scrutiny. She wrote:
"SB 1 plainly classifies on the basis of sex, so the Constitution demands intermediate scrutiny. Recall that SB 1 prohibits the prescription of hormone therapy and puberty blockers only if done to 'enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex' or to alleviate 'discomfort or distress from a discordance between the minor’s sex and asserted identity.'”
Applying intermediate scrutiny, Justice Sotomayor concluded that SB 1 failed to demonstrate a substantial relationship to an important governmental interest. She noted that the law was overinclusive in prohibiting care even when recommended by physicians and supported by parents and underinclusive in allowing the same treatments for other conditions without restriction.
Justice Sotomayor also criticized the majority’s deference to legislative judgments in the face of what she characterized as a medical consensus. She noted that numerous professional medical organizations support gender-affirming care as evidence-based and ethically sound. Deference, she argued, should not extend to laws grounded in moral disapproval or political hostility toward a vulnerable group, such as transgender individuals.
B. Justice Kagan
Justice Kagan joined Sotomayor’s dissent in part and wrote separately to underscore her view that classifications affecting transgender individuals merit heightened scrutiny. While she did not reach a definitive conclusion about whether SB 1 survives such scrutiny, she expressed concern about the Court’s unwillingness to acknowledge the discriminatory character of the law.
Justice Kagan emphasized the principle that equal protection analysis must consider both the text and the practical effect of a law. In her view, even if SB 1 appears facially neutral, its impact falls almost exclusively on transgender minors, revealing a classification that demands more rigorous judicial review. She wrote:
"More concretely put, heightened scrutiny reveals whether a law is based on 'overbroad generalizations,' stereotypes, or prejudices, or is instead based on legitimate state interests, such as the one here asserted in protecting minors’ health."
Justice Kagan’s opinion left open the possibility that more narrowly tailored laws, supported by compelling evidence, might survive heightened scrutiny. However, she viewed SB 1 as a blunt instrument that unjustifiably burdens a marginalized population based on their political disfavor.
VI. Where We Go From Here
Opponents of SB 1 view the Skrmetti decision as a significant setback for transgender rights, while supporters frame it as a vindication of states’ rights to regulate the medical treatment of minors.
For transgender individuals, the Court's refusal to recognize transgender status as a protected classification narrows the path for future equal protection claims related to gender identity. While the Bostock decision recognized discrimination “because of sex” under Title VII, Skrmetti marks a sharp divergence by applying only rational basis review under the Equal Protection Clause. Litigants may increasingly look to alternative constitutional grounds—such as substantive due process, parental rights, and statutory protections under the Affordable Care Act’s Section 1557—to challenge such bans.
For states, the Court's application of rational basis review reinforces states' autonomy to enact laws regulating the controversial intersection of individual rights and medicine, particularly where scientific consensus is unsettled. This approach may embolden other states to adopt similar restrictions.
VII. Conclusion
Regardless of one's political beliefs regarding the provision of gender-affirming healthcare to transgender minors, the U.S. Supreme Court's Skrmetti decision is a fascinating display of fundamental constitutional principles.
The majority, siding with Tennessee, focused on the fact that SB 1 does not take into consideration a minor's sex but, instead, their age and the medical purpose of the treatment. The dissent, on the other hand, siding with the plaintiffs, focused on the fact that SB 1 draws an impermissible sex-based line because it permits certain medical treatments for cisgender minors while categorically denying them to transgender minors.
I see the Skrmetti decision as a close call. True, SB 1 contains restrictions based on age and medical purpose. However, it is also true that gender-affirming care, at its core, takes into account an individual's biological sex, which the U.S. Supreme Court has routinely held to be a quasi-suspect class triggering intermediate scrutiny. Perhaps, the Court's Skrmetti decision leaves more questions than answers, particularly with respect to the suspect classification (and thus the proper level of scrutiny) of transgender individuals. One thing is certain, however; the Skrmetti decision has cemented itself as center-stage of legal and political conversation for years to come.