The Volokh Conspiracy
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Supreme Court Rejects Constitutional Challenge to State Limits on Sex Transition Treatments for Minors
The Court's majority avoids the larger question of whether laws targeting transgender individuals should be subject to heightened scrutiny, but Justice Barrett did not.
The Supreme Court issued five opinions today, most notably its decision in United States v. Skrmetti, rejecting a constitutional challenge to a Tennessee law prohibiting certain medical treatments for gender dysphoria for minors (e.g. puberty blockers and hormones).
The decision produced 112 pages of opinions. Chief Justice Roberts wrote for a 6-3 Court. Justice Alito concurred in part and concurred in the judgment. Justice Thomas and Justice Barrett each wrote separate concurrences (the latter of which Justice Thomas also joined). Justice Sotomayor wrote the principal dissent, joined by Justice Jackson in full and Justice Kagan in part. Justice Kagan also wrote a separate dissent.
Writing for the Court, Chief Justice Roberts concluded that the Tennessee law did not target transgender individuals as a class. Accordingly, his opinion did not reach the question of whether a law that did target transgender individuals is subject to heightened scrutiny. With heightened scrutiny off the table, the Court applied rational basis review, which the Tennessee law easily satisfied.
Justice Sotomayor's dissent disagreed with the majority across the board, concluding that the law did target transgender individuals, should be subject to heightened scrutiny, and failed heightened scrutiny. Interestingly enough, Justice Kagan agreed with the first two parts of the dissent, but did not think the Court should reach the third question. Rather, Justice Kagan urged, the lower court should have been given the opportunity to apply heightened scrutiny in the first instance.
Justice Alito only concurred in the judgment because he concluded, like Justice Sotomayor, that the law should be understood as one targeting transgender individuals, but he concluded that heightened scrutiny was not required and agreed with the majority that the law satisfied rational basis.
Writing separately, Justice Barrett argued that even if the Tennessee law were interpreted to target transgender individuals, it should not be subject to heightened scrutiny because transgender individuals should not be considered a suspect class. In short: "The Equal Protection Clause does not demand heightened judicial scrutiny of laws that classify based on transgender status. Rational-basis review applies, which means that courts must give legislatures flexibility to make policy in this area." In this she was joined by Justice Thomas.
Justice Barrett's concurrence in Skrmetti (as well as her dissent in Perttu, rejecting the Court's expansion of jury trial rights under the PLRA) are interesting to note given recent claims that she has "drifted" to the left, or was never a particularly conservative justice.
