The Supreme Court heard oral arguments in United States v. Skrmetti on December 4. At issue in the case is Tennessee’s complete ban on any therapies that would allow a young person to exercise their bodily autonomy and agency by transitioning away from the sex they were assigned at birth to the one aligned with their gender identity. Given the questions that this case raises for civil rights more broadly, it is understandable that much of the commentary on last week’s oral arguments focused on questions of sex and gender-identity discrimination in equal protection law. However, we must stay focused on the medical risks and harms that will be generated by upholding the Tennessee ban and reject the claim that conservative lawmakers seek to or will eliminate risk by outlawing best practices in health care.
Legally, the practice of medicine is managed at the state level under the 10th Amendment of the Constitution, which provides states the authority to regulate on questions of health, safety, and general welfare. That power has enabled state and local governments to require vaccinations against deadly diseases and to proscribe coercive and scientifically discredited change- therapy efforts for LGBTQ+ patients, more commonly known as “conversion therapy.”
The oral arguments last week revealed how Tennessee is using the pretext of medical regulatory authority as a way to justify its ban, along with restrictions on gender-affirming care in 25 other states. Such state laws have been passed and defended over the protests of parents and physicians who have advocated for the preservation of gender-affirming care given the positive health outcomes associated with these medical interventions.
We have seen this before: Anti-abortion state lawmakers have long been limiting abortion access based on the notion that they are protecting pregnant people and their fetuses, when in fact they put both at risk.
While state regulation of medical practice is legal, sex discrimination can be found unconstitutional under the equal protection doctrine of the United States Constitution, a principle that both the Biden administration and the American Civil Liberties Union have accused Tennessee of violating with its recent ban. Skrmetti puts gender-affirming care bans at a crossroads: Are they a legitimate regulation of medicine and thereby constitutional, or are they an act of blatant sex-discrimination, making them unconstitutional?
The argument that the Tennessee law is sex discrimination is an easy one to make. The law itself is concerned with the regulation and management of sex and clearly discriminates against individuals seeking some therapies while not discriminating against others based explicitly on whether the care is to address issues with the child’s or adolescent’s gender dysphoria. That means that the law allows children experiencing precocious puberty symptoms to access puberty suppressing medications while disallowing children whose gender dysphoria requires the exact same drug regimen.
To illustrate the unconstitutionality of the law, Justice Sonia Sotomayor described a 9-year-old child assigned male who starts to grow body hair prematurely who can be prescribed hormone suppressors and a similarly aged assigned-female child developing unwanted breasts who requires the same intervention. In the justice’s words, the fact that the former is acceptable and the latter is unlawful means that Tennessee’s ban is based on the kind of “sex-based difference” that the Constitution is supposed to prohibit.
Justice Elena Kagan agreed, reasoning that the state had targeted healthcare that is “utterly and entirely about sex.”
To find the Tennessee law constitutional, conservative justices would have to concede that the gender-affirming care bans actually do regulate medicine as opposed to simply defaulting to the idea that gender-affirming care is an ideological, “woke” affront to traditional gender norms. The oral arguments revealed how the conservative justices and Tennessee framed gender-affirming care as an unusually fraught medical practice, one that poses significant danger to those within the state, in order to subject youth and their providers to regulation.
To make the case that they are regulating medicine, the lawyer for Tennessee invoked the idea of risk, making the case that lawmakers are protecting “minors from risky, unproven medical interventions.” Beyond the fact that the American Medical Association and the American Academy of Pediatrics have described such care as “medically necessary,” this argument ignores the risks associated with an inability to access those treatments.
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