United States v. Skrmetti

Gender Affirming CareEqual ProtectionTrans HealthcareTennesseeKentuckySupreme CourtDue ProcessParental Rights6th Circuit

Dec 4

Written By Mack Karbon

Supreme Court of the United States

On appeal from the Sixth Circuit Court of Appeals
(Formerly L.W. v. Skrmetti)

Case No. 3:23-cv-00376 (District Ct.)
Case No. 23-5600 (6th Cir.)
Case No. 23-477 (Supreme Court)

STATUS: ONGOING

UPDATE: The Supreme Court heard oral arguments in this case on December 4, 2024. Elizabeth Prelogar, Unites States Solicitor General, and Chase Strangio of the ACLU argued the case on behalf of the petitioners. Mr. Strangio made history as the first openly trans attorney to argue before the Justices.

BACKGROUND

On March 2, 2023, Tennessee Governor Bill Lee signed into law Senate Bill 1, (“the Ban”), which bans medically necessary, potentially lifesaving healthcare to transgender youth. The law was passed over the sustained and robust opposition of medical experts in Tennessee and across the country. It was also passed over the pleas of families across Tennessee who urged lawmakers not to interfere in the medical decision-making of parents, their minor children, and their doctors. The Ban was set to go into effect on July 1, 2023.

Early Proceedings

On April 20, 2023, a gender-affirming care physician and three families of transgender youth brought a lawsuit against the state challenging the Ban. In their complaint, plaintiffs make the following allegations:

The Ban violates the Fourteenth Amendment’s Equal Protection Clause. Specifically, the Ban discriminates against minor plaintiffs on the bases of sex (including sex stereotyping) and transgender status. The Ban also discriminates against the minor plaintiffs’ parents by denying them the same ability to secure urgently-needed medical care for their children that other parents enjoy, and does so on the basis of sex and transgender status.
The Ban violates the Fourteenth Amendment’s Due Process Clause by denying parents’ the fundamental right to make decisions concerning the care, custody, and control of their children. This includes parents’ right to seek and follow medical advice to protect the health and well-being of their minor children.
The Ban is preempted by Section 1557 of the Affordable Care Act, which prohibits discriminatory health care practices, by placing the provider-plaintiff in the “untenable position of either violating Section 1557 of the federal ACA by refusing to provide care to transgender adolescents or violating the Tennessee Health Care Ban by continuing to provide care for transgender adolescents.”
The Ban violates Section 1557 of the Affordable Care Act by allowing federally-funded medical providers to discriminate against patients on the bases of sex and transgender status.

The plaintiffs asked the court to prohibit the Ban from going into effect. On June 28, 2023, the court GRANTED the plaintiffs’ request and enjoined the state from enforcing the Ban.

Unfortunately, however, this success was short-lived. Two days after the district court issued its order, defendants appealed to the Sixth Circuit Court of Appeals and requested an emergency stay, which would allow the law to go into effect. Less than two weeks later, on July 8, 2023, the appellate court GRANTED the emergency stay — a huge setback for plaintiffs. The law went into effect that day.

The Sixth Circuit Decision

Shortly after permitting the Ban to go into effect, the appellate court handed the plaintiffs another loss. Plaintiffs had hoped that, upon further consideration, the appellate court would reverse the emergency stay and allow the district court’s ruling to go into effect. This would prohibit the state from enforcing the discriminatory Ban. Unfortunately, on September 28, 2023, a split panel of judges decided to allow the state to enforce the ban. The panel’s DECISION joined two cases: L.W.’s case, and the case of Jane Doe 1 v. Thornbury, which concerned an analogous healthcare ban in Kentucky.

Even though the appellate court’s decision was not a decision on the case’s merits, it was still deeply problematic. It endorsed several unfounded talking points invented by conservative politicians to deprive trans children, their parents, and their physicians of their rights to seek and provide efficacious medical care. The decision paints the Ban as a thoughtful and democratic expression protecting minors from “innovative” and “potentially irreversible” treatment — a far cry from the hate-fueled legislative abuse that produced the Ban. To this point, the decision grossly mischaracterizes the history of trans people and trans healthcare, stating that, “the concept of gender dysphoria as a medical condition is relatively new and the use of drug treatments that change or modify a child’s sex characteristics is even more recent.” Of course, this is a dog-whistle invoking the false premise that trans identities are novel and, therefore, dangerous. In reality, trans people and gender dysphoria have existed for centuries. The relatively recent medical consensus leading to the diagnosis of “gender dysphoria” is an overdue correction to the long-standing failure of the medical community to properly understand trans identities. This does not, as the majority suggests, indicate that the efficacy trans healthcare is unknown, unproven, or unsuitable for minors.

The decision also misunderstands the nation-wide trend of transphobic legislation as a “thoughtful debate[].” In reality, this fad is an attempt by conservative politicians to score political points by directing outrage at a narrow and politically powerless segment of the population.

The majority falls victim to countless other anti-trans talking points. It flouts the Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that discrimination on the basis of sexual orientation and transgender status is, inescapably, discrimination on the basis of sex. Rather than recognize the challenged laws’ blatant attempt to discriminate on the basis of transgender status (and therefore sex), the court adopts the untenable position that discrimination on the basis of gender dysphoria is “presumptively valid.” At no point does the court acknowledge that the only people diagnosed with gender dysphoria are transgender, or that courts have long held that “proxy discrimination” — like discriminating against a group for having melanated skin, or wearing headscarves — is a transparent attempt to engage in discriminatory conduct, and it is unlawful.

The appellate decision remanded the case back to the district court for further proceedings. On February 12, 2024, the case was STAYED by joint request by the parties, pending the resolution of plaintiffs’ appeal to the Supreme Court.

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Appeal to the Supreme Court

On November 1, 2023, plaintiffs petitioned the Supreme Court for review of the Sixth Circuit’s decision. The questions presented to the Court were:

Whether Tennessee’s SB1, which categorically bans gender-affirming healthcare for transgender adolescents, triggers heightened scrutiny and likely violates the Fourteenth Amendment’s Equal Protection Clause; and
Whether Tennessee’s SB1 likely violates the fundamental right of parents to make decisions concerning the medical care of their children guaranteed by the Fourteenth Amendment’s Due Process Clause.

The Biden Administration, acting as an intervenor-appellant, also appealed to the Supreme Court on behalf of plaintiffs-appellants.

The Supreme Court “Relists” Tennessee and Kentucky Cert Petitions

In an unusual move, on May 16, 2024, both L.W. v. Skrmetti and Jane Doe 1 v. Kentucky were “relisted” by the Supreme Court. Relisting a cert petition means that it is set for reconsideration at the Justices’ next conference, during which the Justices will consider whether to select the case for review. Unlike a “hold,” a “relisting” will show up on the case’s electronic docket. A relist can mean several things, including the fairly straightforward prospect that one or more Justices wants to take a closer look at the case; that one or more Justices is trying to pick up enough votes to grant review (four are needed); that the Justices are writing a summary reversal (that is, a decision that the lower court opinion was so wrong that the Court can decide the case on the merits without briefing or oral argument); or that one or more Justices are writing a dissent from the decision to deny review.

Given Justice Alito’s frightening dissent from a denial of cert in Williams v. Kincaid, another transphobic screed from the fringe-right Justice would not be surprising. Alternatively, the relisting might signal that the Justices are divided on whether or not to weigh in on the Fourteenth Amendment issues presented in both cases.

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UPDATE, JUNE 24, 2024:

The Supreme Court announced that it would hear oral arguments in this case, now titled United States v. Skrmetti, and in the case of Jane Doe 1 v. Kentucky, the case concerning an analogous gender-affirming care ban in Kentucky. It is unclear what this could mean for the future of gender-affirming care for minors; what we do know is that whatever decision the Justices deliver will have far-reaching consequences on trans youth for the foreseeable future.

What is at issue before the Supreme Court in this case?

The Justices accepted only the Equal Protection question related to the state’s ability to limit pediatric care on the basis of patients’ sex. Said another way, the issue for the court is whether the Equal Protection Clause permits states to prohibit hormone therapy and puberty blockers for minors seeking to present as a gender different than their assigned sex at birth, while leaving unregulated providers’ ability to prescribe the same treatments to minors not experiencing gender dysphoria.

To be clear, hormones and puberty blockers are established, accepted treatments for minors experiencing precocious puberty or facing other discrete medical issues. Additionally, the Ban contains an exception for the use of hormones and puberty blockers when used to treat intersex conditions. A primary argument of the United States and the minor petitioners is that the Ban’s narrow prohibition on healthcare for trans youth, which the State justifies as necessary to protect the health and safety of minors, is in fact sex-based and deserving of heightened scrutiny.

Both the United States and the minor plaintiffs are seeking a reversal of the Sixth Circuit’s decision that the law does not make sex-based classifications and therefore is subject to rational basis review. Petitioners argue that the law makes explicit sex-based classifications, and therefore should be analyzed under an “intermediate scrutiny” standard. Intermediate scrutiny, which applies to laws containing sex-based classifications, requires that the state prove that that the challenged law (1) furthers an important government interest, and (2) is substantially related to that interest. Rational basis review, on the other hand, only requires that the state show that (1) there is a legitimate reason for the law, and (2) that there is a logical connection between the law’s goals and its method of effectuating those goals. The rational basis test is the most permissive of the three judicial review tests, and is generally used when fundamental rights or suspect classifications are not at issue.

The Sixth Circuit, finding (erroneously) that the Ban contained no sex-based classifications, determined that the state of Tennessee had satisfied rational basis review. Petitioners now ask the Supreme Court to acknowledge that the law contains explicit sex-based prohibitions, that the law is entitled to heightened scrutiny, and that the case should be remanded back to the Sixth Circuit for reconsideration.

Oral arguments took place on December 4, 2024. Live stream audio can be found here.

For the best commentary on this and other trans topics, please read Erin Reed’s coverage on this issue, found here.