Supreme Court Justice Ketanji Brown Jackson suggested during oral arguments Wednesday that Tennessee’s law banning puberty blockers for minors could constitute sex discrimination. The case, United States v. Skrmetti, involves a Biden-Harris administration challenge to the law, which the Sixth Circuit Court of Appeals upheld.
The administration argued that because the law involves classifications related to sex, it should face heightened scrutiny under Equal Protection Clause jurisprudence. Civil rights cases often apply varying levels of judicial scrutiny: “strict scrutiny” for race-based distinctions, “intermediate scrutiny” for sex-based distinctions, and “rational analysis” for other classifications.
The administration urged the Court to remand the case for intermediate scrutiny. Tennessee Solicitor General Matthew Rice countered that the law bans puberty blockers for all minors, regardless of sex, and therefore does not meet the criteria for heightened scrutiny. He emphasized that the same medications remain available for treating early-onset puberty in boys and girls but argued that their use for gender transition could cause irreparable harm.
Justice Jackson challenged this reasoning, stating that denying a girl seeking to become a boy or a boy seeking to become a girl access to puberty blockers inherently refers to sex and warrants heightened scrutiny. Rice responded that while biological sex must sometimes be noted for medical purposes, the law itself does not create distinctions based on sex.
Jackson compared Tennessee’s argument to defenses of laws prohibiting interracial marriage, which the Supreme Court struck down in Loving v. Virginia (1967). In that case, defenders argued the law applied equally to all races but was ultimately found to reinforce racial discrimination. Jackson warned that Tennessee’s position could undermine established Equal Protection jurisprudence.
Justice Samuel Alito, in contrast, noted that transgender identity differs from sex and race as it is not an “immutable” characteristic. American Civil Liberties Union (ACLU) attorney Chase Strangio, the first openly transgender lawyer to argue before the Supreme Court, ultimately acknowledged that transgender individuals can change their minds about their identity, further complicating the legal analysis.
The case raises significant questions about the intersection of Equal Protection principles, medical ethics, and evolving societal attitudes toward gender identity. The outcome in United States v. Skrmetti could have far-reaching implications for state laws addressing gender-related medical treatments and the broader legal framework governing sex-based classifications.