Caleb Britton | United States v. Skrmetti
INTRODUCTION
In March 2023, Tennessee enacted the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity, Senate Bill 1 (“SB1”). SB1 was enacted as part of a series of laws targeting transgender individuals in Tennessee. SB1 declared that Tennessee has a “compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty,” and in prohibiting procedures “that might encourage minors to become disdainful of their sex.” SB1 prohibits healthcare providers from “[p]rescribing, administering, or dispensing any puberty blocker or hormone” if that treatment is provided “for the purpose” of “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” The district court preliminarily enjoined Tennessee officials’ enforcement of the law, joining courts around the country that have held that similar laws trigger heightened scrutiny because they discriminate based on sex and transgender status.
Private petitioners are L.W., Ryan Roe, and John Doe, three transgender adolescents who live in Tennessee; their parents; and a Tennessee doctor who treats adolescents with gender dysphoria. L.W. is a 15-year-old transgender girl whose dysphoria made her feel like she was “trapped in the wrong body” and “drowning.” Ryan Roe is a 15-year-old transgender boy. As he entered adolescence, he got “more and more anxious about puberty,” to the point that he would “throw[] up before school every morning. John Doe is a 12-year-old transgender boy. From an early age, he knew he was a boy, choosing a male name for himself and socially transitioning in school. He is terrified of “under[going] the wrong puberty” because he knows that “some of those changes could be permanent.”
Private petitioners sued respondents, Tennessee officials responsible for enforcing SB1, in the U.S. District Court for the Middle District of Tennessee. Among other claims, private petitioners alleged that SB1 violates the Equal Protection Clause. The United States intervened under 42 U.S.C. 2000h-2, which authorizes intervention in a private equal-protection suit “if the Attorney General certifies that the case is of general public importance.”
A divided panel of the Sixth Circuit granted the respondent’s motion for a stay pending appeal and reversed the preliminary injunction after the expedited briefing. The Sixth Circuit rejected the petitioner’s equal protection claim. The Sixth Circuit held that Bostock’s “reasoning applies only to Title VII” of the Civil Rights Act of 1964, not to the Equal Protection Clause. Additionally, The Sixth Circuit held that the discrimination against transgender individuals triggers only rational-basis review because they do not qualify as a quasi-suspect class. The court held that a law relying on sex triggers heightened scrutiny only if it “perpetuates invidious stereotypes or unfairly allocates benefits and burdens.” The court believed that SB1 did not contain those stereotypes, benefits, or burdens. Applying deferential review, the Sixth Circuit concluded that the Tennessee legislature could have rationally concluded that SB1 was an appropriate response to perceived risks and uncertainties associated with puberty blockers and hormone therapy.
ISSUE PRESENTED
Whether SB1, which prohibits all medical treatments intended to allow a minor to live as an identity inconsistent with the minor’s sex or to treat the distress from a discordance between the minor’s sex and asserted identity, violates the Equal Protection Clause of the Fourteenth Amendment and whether quasi-suspect scrutiny Judicial review is required for laws involving transgender identity.
ARGUMENTS
Petitioner
In this case, the petitioner argues that the Sixth Circuit decision departs from the reasoning of several other circuits and the Supreme Court. The petitioner contends that the SB1 warrants and cannot survive heightened scrutiny in a case regarding the equal protection clause of the 14th Amendment because it relies on sex-based classifications of discrimination and, subsequently, the discrimination of transgender individuals. The petitioner also argues that the Sixth Circuit erred in holding that the heightened scrutiny applied in Bostock v. Clayton County applies only to Title VII claims and not to the equal protection clause of the 14th Amendment. 140 S. Ct. 1731 (2020).
The petitioner argues it is now firmly established that the Equal Protection Clause requires courts to apply “a heightened standard of view” to “[l]egislative classifications based on gender.” City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432 (1985). The petitioner claims the Tennessee law “creates a sex-based classification on its face” by defining the prohibited procedures based on the patient’s sex assigned at birth. The petitioner reasons that because the law’s prohibitions “cannot be stated without referencing sex,” they are “inherently based upon a sex-classification.” Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., No.1 Bd, 858 F.3d 1034 (7th Cir. 2017.) The petitioner asserts that the Bostock v. Clayton County case is controlling in the instant case. When a law or policy “penalizes a person identified as male at birth for traits or actions that it tolerates in [a person] identified as female at birth,” the person’s “sex plays an unmistakable” role. Bostock v. Clayton County, 140 S. Ct. 1741–1742 (2020).
The Petitioner also asserts that SB1 is subject to heightened scrutiny because it “expressly and exclusively targets” transgender persons, who constitute at least a quasi-suspect class based on factors used by the court in the past to determine when heightened scrutiny was applicable. L.W. v. Skrmetti, 83 F.4th 460 (6th Cir. 2023). The petitioner maintains that the Court has already rejected the argument that a law that classifies based on a protected characteristic such as race or sex is insulated from heightened review simply because it applies to members of all races or to both sexes.
Respondent
The Respondent agrees with the Sixth Circuit’s conclusion that the law did not classify based on transgender status at all, but drew lines based on age and medical condition instead. The Respondent claims that not all individuals who identify as transgender undergo medicalized gender transitions, and many individuals who undergo those interventions later stop identifying as transgender. The respondent argues that “the regulation of a course of treatment that only gender-nonconforming individuals can undergo would not trigger heightened scrutiny unless the regulation were a pretext for invidious discrimination against such individuals. Eknes-Tucker v. Gov’r of Ala., 80 F.4th 1205 (11th Cir. 2023) at 1229–30.
The Respondent claims that Constitution is neutral about legislative regulations of new and potentially irreversible medical treatments for minors. Thus, according to the respondent, a law protecting children from harmful procedures would easily pass rational basis review scrutiny.
Respondent posits, assuming transgender status is a quasi-suspect class, “the regulation of a course of treatment that only gender-nonconforming individuals can undergo would not trigger heightened scrutiny unless the regulation were a pretext for invidious discrimination against such individuals.” Eknes-Tucker, 80 F.4th at 1229–30. The respondent points to record saying that no such finding was, or could be, made here.
Additionally, “Because Bostock … concerned a different law (with materially different language) and a different factual context, it bears minimal relevance to the instant case.” Eknes-Tucker, 80 F.4th at 1229. According to the Respondent, using testosterone or estrogen to treat a deficiency and restore naturally occurring levels is in no way similar to using those drugs to elevate hormone levels far above the naturally occurring baseline to induce or prevent certain physical changes.
The Respondent concludes that because the Tennessee law “lacks any of the hallmarks of sex discrimination,” “it does not prefer one sex over the other, “it does not include one sex and exclude the other,” “it does not bestow benefits or burdens based on sex,” “and it does not apply one rule for males and another for females,” it does not meet the standard for quasi-suspect judicial review. Instead, the Court must consider the totality of the relevant circumstances.
LOOKING FORWARD
Beyond resolving the circuit splits, this case could guide the courts and the states on the deference the courts are required to give state legislatures when going through judicial review concerning laws with sex-based classification components. This case may also clarify when the Bostock v. Clayton County decision regarding transgender discrimination being a form of sex discrimination applies. Finally, this case may clarify when laws implicating transgender identity qualify for quasi-suspect scrutiny under judicial review.
Practically speaking, if the Court finds for the Petitioner, this will result in many state laws banning gender-affirming care across the nation being struck down and allowing for more children to access hormone therapy to treat gender dysphoria without intervention by state legislatures. Legislatively, finding for the petitioner will require state legislatures to provide more than a possible state interest in enacting laws involving sex classifications.
If the Court finds for the respondent, it will have narrowed the applicability of the Bostock v. Clayton County decision to sex discrimination claims not involving the equal protection clause. Additionally, it will make it easier for the Court to provide state legislatures judicial deference under rational basis review when they pass legislation restricting child access to gender-affirming hormone therapy. Eventually, this could lead to the narrowing or elimination of the quasi-suspect judicial review for discriminatory sex classification cases.
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