With a 6-3 ruling on Wednesday, June 18, the US Supreme Court sent a simple question back to the lower courts. But doing so may have set the wheels in motion for states across the nation that wish to limit so-called “gender-affirming care” to children. The case in question is US v. Skrmetti, and what may at first blush appear to be a simple procedural ruling has far wider implications.
We spoke with Liberty Nation News Legal Affairs Editor Scott D. Cosenza, Esq., to understand the reasoning behind the majority opinion and, more importantly, whether the ruling will act as a blueprint for other states.
The Heart of the Process
Mark Angelides: This case out of Tennessee, Scott, was challenging the existing position that doctors are not permitted under state law to administer what the plaintiffs describe as “gender-affirming care.” What was the question, and on what basis was the law challenged?
Scott D. Cosenza, Esq.: It’s the same answer for both your questions – the Supreme Court agreed to take the case to answer whether the law “violates the Equal Protection Clause of the Fourteenth Amendment.” In a 1971 case called Reed v. Reed, the Court issued a landmark ruling incorporating sex-based discrimination into the Fourteenth Amendment.
The trans minors and their parents, who were the plaintiffs challenging Tennessee’s law, said it treats them differently because of their biological sex and was, therefore, impermissible.
Mark: The case seemed to hinge on which standard of review was applied by the courts. Why?
Scott: Current law, established by numerous Supreme Court precedents, sets up three levels of review for laws that treat people differently. They are strict scrutiny, intermediate scrutiny, and rational basis. Race and religion, amongst others, are strict scrutiny issues; gender is under intermediate scrutiny, and rational basis covers all sorts of other differentiators, including individuals with intellectual disabilities, for example.
The rule works like this – if a state wants to treat people differently based on race, for instance, the law must address a compelling government interest and be narrowly tailored to meet that interest. Almost no laws pass through this fine filter. At the other end of the spectrum is the rational basis test, which says laws must be rationally related to a legitimate government interest. Few laws fail this challenge. So, if plaintiffs can convince courts to use strict scrutiny, they are more likely to prevail.
Mark: So, the Supreme Court determined that the law had already undergone an adequate level of review? Does that mean that the law can continue as is?
Scott: The District Court applied intermediate scrutiny here, but it was reversed by the Sixth Circuit Court of Appeals, which applied a rational basis and determined the law passed that test. The Supreme Court agreed, by a 6-3 decision, that rational basis was the correct test and that the law passed muster when applied to it.
Mark: And what was the dissent?
Scott: Justice Sonia Sotomayor wrote in dissent, joined by Ketanji Brown Jackson and Elena Kagan. Sotomayor’s chief argument is that the law “plainly discriminates on the basis of sex” and must then be subjected to intermediate scrutiny. She finds it unconvincing that the law doesn’t use sex as a basis to differentiate people and wrote 30 pages about why. Sotomayor then went on to say the law should fail on an intermediate basis review. Kagan agreed with Sotomayor’s opinion except for the last part. Justice Kagan wrote separately to say that she did not have an opinion about whether the case met the burden of an intermediate scrutiny test but only that it merited such a review.
A Red State Roadmap?
Mark: A number of red states have either adopted something similar to the Tennessee law or are in the process of doing so. With the Supreme Court’s ruling, will there be renewed confidence in planning how to stop doctors and clinicians from providing trans treatments to children?
Scott: Well, any state can adopt a law substantially identical to Tennessee’s and be confident it will pass a challenge under federal law.
Mark: To me, it seems there’s one aspect being overlooked, which is that the people offering these treatments could be open to liability. With a huge number of de-transitioners now getting a platform to speak about their regret and, in many cases, the medical coercion they underwent, can we expect to see a slew of lawsuits? And would such potential legal risk act as a self-regulation?
Scott: I suspect our society and the courts will be dealing with this issue for generations. Puberty blockers and up through surgery are prescribed and administered to minors in many places. When can a woman who will never be able to conceive children sue the doctors who gave a confused 12-year-old such treatment? States stretch statutes of limitations often enough, and this issue seems ripe for that. Yes, to your question, the civil tort system provides a great deal of imposition of self-regulation.
Mark: We can’t ignore the fact that this major ruling landed smack in the middle of Pride Month. And many of the decisions that opponents have claimed are anti-LGBTQ have come during previous Pride Months. Of course, that’s part of the nature of the court calendar and when the court usually delivers verdicts. But when we combine this with a worldwide drop in corporate sponsorship of these parades and President Donald Trump’s push to wipe DEI from the taxpayer-funded US budget, it’s not a good month for this particular community, is it?
Scott: There is no such community! Homosexual men and women and trans people are not in community with each other. It’s true both politically and culturally. The notion was created by progressives to use as leverage for political gain and then imposed on us by the legacy media, to great success. I seldom see that point being made, but I think it’s important. And yes, those progressives took a big L here.
