On June 18, 2025, the U.S. Supreme Court handed down its decision in a landmark gender identity case, United States v. Skrmetti. The case is a significant victory for the protection of vulnerable minors from the permanent injuries caused by so-called “gender-affirming care.” And it is a major setback for pernicious gender ideology.
Tennessee, like about 24 other states, prohibits the use of puberty blockers, cross-sex hormones and mutilating surgery for minors with “gender dysphoria, gender identity disorder, or gender incongruence,” as it is described in the Court’s majority opinion. The parents of three minor children in Tennessee, recruited and financed by the American Civil Liberties Union, sued Tennessee, claiming that the law is sex discrimination, and therefore a violation of the equal protection cause of the 14th Amendment.
Writing for a 6-3 majority, Chief Justice John Roberts dispatched this argument, holding that the Tennessee law does not violate the 14th Amendment because it does not discriminate on the basis of sex. As such, Roberts explained, Tennessee met its burden to show that the law is rationally related to a legitimate state interest, in this case protecting minors from the irreversible harm caused by “gender-affirming care.”
The standard of review
While it may seem like an arcane legal point, the court’s determination of the “standard of review” goes to the heart of the Skrmetti decision and may have implications beyond this case.
The plaintiff parents and ACLU argued that the court should have used a “strict scrutiny” or “heightened scrutiny” standard, contending that this is proper for a case of sex discrimination. A strict scrutiny standard applies when a challenged law infringes on a constitutional right. In such cases, a law is presumed to be invalid, and the government must prove it is necessary to achieve a “compelling state interest” and does so in the least restrictive manner possible.
The Court rejected this argument because, it said, the Tennessee law does not discriminate on the basis of sex. Instead, Roberts explained, the law draws a line based upon two criteria: the age of the person and the purpose of the treatment.
Age-based discrimination in the law does not rise to the level of strict scrutiny (other than in the context of employment). This is because there are numerous instances in which discrimination on the basis of age is rationally related to legitimate government interests. States apply laws differently to different age groups in all sorts of contexts, such as, for example, obtaining a driver’s license, purchasing alcohol or tobacco, voting or entering bars.
Both federal and state laws also routinely restrict drug therapies by the age of the patient or the purpose of the therapy. For example, certain antidepressants are approved for adults but not children, even though those same drugs might have other permitted therapeutic uses for children. The Tennessee law at issue in Skrmetti is just such an instance. The law does not prohibit the prescription of puberty blockers or hormones to minors for legitimate medical purposes. The most common of these is “precocious puberty.” This is an endocrinological condition in which a child enters puberty at a younger age than normal. The development of breasts, pubic hair and other secondary sex characteristics can be delayed by the temporary administration of puberty blockers. Or children with lower than normal sex-based hormones (testosterone in boys or estrogen in girls) can be prescribed such hormones to supplement their deficiencies. The Tennessee law permits these legitimate therapies for actual physiological pathologies. But, the Supreme Court ruled, the state of Tennessee is entitled to prohibit the use of these therapies for “gender-affirming care,” which Tennessee has legitimately determined to be harmful to children. The court does not have to agree with Tennessee’s judgment. But neither may it second-guess that determination.
Justice Barrett’s concurrence and the future of transgender ideology
As often happens in high-profile cases involving contentious issues, some justices in the majority wrote separate concurring opinions. These opinions do not carry the legal weight of the majority opinion, but they do suggest directions that future cases might take. Two issues raised by the concurrences in the Skrmetti case are especially noteworthy.
Associate Justice Amy Coney Barrett wrote a concurring opinion for the purpose of stating her view as to whether “gender identity” is a “suspect” class under federal antidiscrimination law. Chief Justice Roberts expressly declined to address the question, prompting Barrett to assert that he should have done so, and he should have answered no.
As noted above, classifications of persons under laws for purposes of disparate application are routine, and routinely upheld. The only exceptions are when the law discriminates on a “suspect class.” Race and sex are the most common suspect classes. Laws that discriminate on either basis are “suspect,” and therefore require a higher level of scrutiny than laws that discriminate on other classes.
Barrett argued that the court should have held that transgender status is not a suspect class. If the court had made that determination (or if it makes the determination in the future), a state’s laws need only show a “legitimate” interest (not a “compelling” one) in passing laws that affect so-called transgender people differently from the rest of the population. Her reasoning is simple and compelling: Suspect classification is based upon “obvious, immutable or distinguishing characteristics” that are “definitively ascertainable at the moment of birth.” Transgender identity is obviously not such a characteristic.
During oral argument, Justice Samuel Alito asked the attorney for the ACLU if it sometimes happens that a man identifies as female at some point, but later identifies as male again (and vice versa). The attorney made the fatal concession that this does occur. People “detransition” after they change their mind about their “gender identity.” Then, said Alito, it is not an immutable characteristic. Seizing upon that point, Barrett argued that the court should have settled the question in this case, holding that gender identity is not a suspect classification. This would relax the standard that states must meet when they pass laws that might adversely affect so-called transgender people in ways that do not affect everyone else. In particular, it might lead to a reconsideration of the infamous Bostock case of 2020, which compelled employers to allow men to dress as women at work.
Justice Thomas blows the whistle on pseudoscience
Transgender ideologues commonly assert that prohibiting the administration of “gender-affirming therapies” will result in higher suicide rates among so-called transgender children. Justice Clarence Thomas, never one to hold back, used his concurrence to demonstrate the ideological motivations of such assertions. Not only is the science not “settled,” the most reliable studies show that children who undergo these treatments are worse off than children who exhibit gender confusion but do not have “gender-affirming therapy.” Indeed, the ACLU’s attorney herself admitted that suicide rates are no higher among the latter group than the former. While not as important legally as Barrett’s, Thomas’ concurrence blows the whistle on the ideologically driven pseudoscience of transgender “medicine.”
The Skrmetti case does not end the cultural and legal war over issues related to gender ideology. But it is a major battle victory, and one that portends more to come. Tennessee, like other states, has the right to protect its minor children from ghoulish practices that cause irreversible injury in the name of medical care. Having taken this battle, Barrett and Thomas have pointed us in the direction of the next one in the ongoing war for sanity and reason over irrationality and ideology.
