The Supreme Court’s decision upholding a Tennessee ban on gender-affirming care for transgender youth is a tragic abdication of the judiciary’s responsibility to protect minorities.
In 1937, in United States vs. Carolene Products, the court famously explained that while courts usually should defer to the political process, deference is unwarranted when there is discrimination against “discrete and insular minorities,” groups that are unlikely to be able to protect themselves against discrimination. Transgender youth are obviously such a minority, but the Supreme Court, in a 6-3 ruling divided along ideological lines, abandoned them.
The issue before the Supreme Court was whether Tennessee may prohibit puberty blocking hormones from being administered to transgender teenagers. Twenty-six states, all with Republican-controlled state legislatures, have banned gender-affirming care for minors. It is estimated that there are 110,000 transgender individuals in these states who will be prevented from having the medical care that they, their parents and their doctors want administered.
Chief Justice John G. Roberts Jr., writing for the majority in United States vs. Skrmetti, stressed the need for the court to defer to the judgment of the Tennessee Legislature. He concluded his opinion by saying the issue is left “to the people, their elected representatives, and the democratic process.” Likewise, Justice Clarence Thomas, in a concurring opinion, said: “Deference to legislatures, not experts, is particularly critical here.”
But such deference is inappropriate and unwarranted under Supreme Court precedents when a law burdens a group that has been historically subjected to discrimination. The Tennessee law discriminates on the basis of sex. Roberts’ majority opinion contends that denying the medical care doesn’t amount to sex discrimination because all children are prohibited from receiving gender affirming care. But this ignores that the law allows certain hormones to be given to boys and not girls, and vice versa. That, by definition, is sex discrimination.
Justice Sonia Sotomayor explained it this way in her dissenting opinion: “Sex determines access to the covered medication. Physicians in Tennessee can prescribe hormones and puberty blockers to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl.”
Second, the law discriminates against transgender youth. Roberts rejects this as well, saying the law “does not classify on the basis of transgender status.” But that is exactly what the law does: It singles out transgender youth and bars them from receiving certain medical care.
Roberts’ logic works this way: There are those who would use the hormonal treatment for gender-affirming care, which is prohibited by the Tennessee law, and those who would use the hormonal treatment for other purposes, which is allowed. Because transgender individuals can be in both groups, there is no discrimination against them.
But of course this ignores that the entire purpose of the law is prohibiting medical treatments that doctors, parents and transgender youth believe is appropriate.
Sadly, the conservative justices took sides in the culture wars and in doing so abandoned both long-standing constitutional principles and transgender individuals.
Erwin Chemerinsky is dean of the UC Berkeley Law School.