Supreme Court to Consider State Ban on Gender Dysphoria Treatments for Minors (Updated)

Yesterday the Supreme Court granted certiorari in United States v. Skrmetti, a challenge to Tennessee's SB1, a law prohibiting puberty blockers, cross-sex hormones, and sex-transition surgeries for minors suffering from gender dysphoria. SB1 is one of several state laws recently adopted imposing such limitations on such care for minors, and Skrmetti is one of several cases involving challenges to such laws.

Tennessee's law was initially challenged on both Equal Protection and Due Process grounds. A divided panel of the U.S. Court of Appeals for the Sixth Circuit initially stayed and then reversed a preliminary injunction against the law. In opinions by Chief Judge Sutton, the court concluded that the challengers were unlikely to succeed on either their Equal Protection or Due Process claims.

Both the federal government and individual plaintiffs filed petitions for certiorari in Skrmetti. Yesterday the Court only granted the federal government's petition. One reason might be that the brief filed by the Solicitor General only submitted one issue—Equal Protection—to the justices. The SG did not ask the justices to consider the substantive dur process claim that Tennessee's SB1 infringed upon fundamental liberties, such as the right of parents to control the upbringing of and make medical decisions for their children.

The question presented in the SG's brief that was accepted for certiorari reads as follows:

Whether Tennessee Senate Bill 1 (SB1), which prohibits all medical treatments intended to allow "a minor to identify with, or live as, a purported identity inconsistent with the minor's sex" or to treat "purported discomfort or distress from a discordance between the minor's sex and asserted identity," Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment.

The second question presented that was addressed by the Sixth Circuit and included in the petition for certiorari that was not accepted by the Supreme Court reads as follows:

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.

While the Supreme Court is not ready to consider whether the Due Process Clause protects parental rights in this case, it will likely have additional opportunities to consider such questions in due course, and potentially in cases that have a different ideological valence.

While some states have imposed limits on various treatments for gender dysphoria for minors, other states have placed limits on conversion therapy. While such laws do not raise the same Equal Protection issues as Tennessee's SB1, they arguably place equivalent limits on parental rights. There are also brewing disputes over whether a parent's willingness to affirm a child's gender identity should be considered in custody disputes, as would have been required under a California bill vetoed by Gavin Newsom last year.

Whether or not the Court is willing to add a parental rights case to the docket anytime soon, Skrmetti is currently the highest profile case on tap for October Term 2024.

[Note, however, that should Donald Trump win the election, this is a case in which the federal government could change sides, so it will be worth paying attention to the briefing schedule and when this case is scheduled for argument. On this point, see Josh Blackman's post.]

UPDATE: While the Tennessee law in question prohibits both chemical and surgical treatments, it is important to note that the Solicitor General's brief limits its challenge to the prohibition on the use of hormones and puberty blockers. According to page 9 of the Solicitor General's brief: "The law also prohibits surgical procedures provided for the same purposes, but that prohibition is not at issue here."

The reason the SG claims the case is so proscribed is that the lower courts concluded that the private plaintiffs lacked standing to challenge the prohibition on gender-transition surgeries because none had plans to obtain or provide such surgeries in violation of the law.

Of course, if the SG is correct that the law imposes a sex-based classification that triggers heightened scrutiny, this conclusion would apply across the board. The question then would be whether, if the SG is correct that the prohibition on the use of hormones and puberty blockers fails heightened scrutiny, whether that would necessarily doom the prohibition on surgeries as well. Does the state have a stronger interest in limiting such surgeries for minors than it does for limiting puberty blockers? And is the prohibition on surgeries most closely related to the state's interests? And while this question may not be part of the case at it reaches the Court for review, I would not be at all surprised were the SG asked these questions at oral argument.