By Paul Engel
July 31, 2025
- Advocates claim that the Tennessee’s SB1 violates the Equal Protection Clause of the Fourteenth Amendment.
- The State of Tennessee claims they’re protecting children.
- Are state laws that prohibit the use of certain drugs to treat gender dysphoria constitutional?
All of western culture is at war. The fundamental point of conflict is whether a person’s “gender” is determined by biology or psychology, reality or wishes. One of the latest battles in this war is the Supreme Court case United States v. Skrmetti. In this case Mr. Skrmetti, as Attorney General of the State of Tennessee, is defending the state’s law that prohibits the use of so-called “gender-affirming” care for minors. The answer the court came to will surprise some and infuriate others.
Protecting Children
When we declared our independence from Great Britain, our Founding Fathers clearly stated:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
The case United States v. Skrmetti is ultimately a controversy about rights. Do minors have the right to treatments that permanently alter their bodies, or does the state have the right and duty to protect these children from harm?
In 2023, Tennessee joined the growing number of States restricting sex transition treatments for minors by enacting the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity, Senate Bill 1 (SB1).
As is so often the case, the details matter. What was in the law that got the United States government to intervene in this case brought by a group in Tennessee?
SB1 prohibits healthcare providers from prescribing, administering, or dispensing puberty blockers or hormones to any minor for the purpose of (1) enabling the minor to identify with, or live as, a purported identity inconsistent with the minor’s biological sex, or (2) treating purported discomfort or distress from a discordance between the minor’s biological sex and asserted identity.
Tennessee didn’t prohibit the use of puberty blockers or hormones to anyone, only to minors. This is important because in this country not only are minors unable to give consent, the state is expected to step in when a child is being harmed, even by their parents. It’s one of the few situations where the state can legitimately interfere with parental rights, when the health or safety of the child is at risk. That said, SB1 is not a universal prohibition on the use of these drugs.
At the same time, SB1 permits a healthcare provider to administer puberty blockers or hormones to treat a minor’s congenital defect, precocious puberty, disease, or physical injury.
In other words, SB1 only prohibits the use of puberty blockers and hormones when the purpose involves encouraging a transgender lifestyle.
This case, of course, did not start at the Supreme Court level.
Three transgender minors, their parents, and a doctor challenged SB1 under the Equal Protection Clause of the Fourteenth Amendment. The District Court partially enjoined SB1, finding that transgender individuals constitute a quasi-suspect class, that SB1 discriminates on the basis of sex and transgender status, and that SB1 was unlikely to survive intermediate scrutiny. The Sixth Circuit reversed, holding that the law did not trigger heightened scrutiny and satisfied rational basis review. This Court granted certiorari to decide whether SB1 violates the Equal Protection Clause.
The District Court found for the minors, their parents, and the doctors. The court claimed that people believing they are “transgender” are part of a quasi-suspect class, which we’ll go into more in the section of Levels of Scrutiny. Based solely on the District Court’s belief that so-called “transgender” people are more likely to suffer discrimination, they claimed Tennessee’s SB1 was unconstitutional. However, the Sixth Circuit disagreed, claiming that the District Court was wrong in how they evaluated the law. The Supreme Court took the case to decide if SB1 violates the Equal Protection Clause of the Fourteenth Amendment or not.
Levels of Scrutiny
This “Judicial Scrutiny” doctrine is a creation of the Supreme Court as a way of indicating to lower courts how hard a government must work in order to be allowed to violate your rights. The lowest level of scrutiny is the Rational Basis Test.
A judicial standard of review that examines whether a legislature had a reasonable and not an Arbitrary basis for enacting a particular statute.
Rational Basis Test – The Free Legal Dictionary
Basically, when the court uses the rational basis test, they’re just looking for a good reason for the law, rule, or regulation to exist. Next comes Intermediate Scrutiny.
In order to overcome the intermediate scrutiny test, it must be shown that the law or policy being challenged furthers an important government interest by means that are substantially related to that interest.
Intermediate Scrutiny – The Free Legal Dictionary
In order to survive intermediate scrutiny, the court requires not only that the law or policy be reasonable, but that it furthers an important government interest. Lastly we have Strict Scrutiny.
A standard of Judicial Review for a challenged policy in which the court presumes the policy to be invalid unless the government can demonstrate a compelling interest to justify the policy.
Strict Scrutiny – The Free Legal Dictionary
Under strict scrutiny, the government must show not only their interest is important, but compelling.
What these court-created definitions seem to miss is the primary interest of government, from the Declaration of Independence:
That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,
Government’s first and primary interest is in securing the rights of the people, not working out ways government will be allowed to infringe on those rights. This is where the District Court’s claim about a quasi-suspect class comes in.
A presumptively unconstitutional distinction made between individuals on the basis of race, national origin, alienage, or religious affiliation, in a statute, ordinance, regulation, or policy.
Suspect Class – The Free Legal Dictionary
When The Free Legal Dictionary uses the phrase “presumptively unconstitutional” it’s rather ironic. You see, the dictionary is claiming that when a distinction is made based on race, religion, etc., it’s “presumptively unconstitutional.” The irony comes when we realize that putting people in classes for the purpose of special protection under the law is presumptively unconstitutional; it truly is a violation of the concept of equal protection under the law.
Equal Protection
The petitioners claim that Tennessee’s SB1 violates the Equal Protection Clause of the Fourteenth Amendment.
No State shall … deny to any person within its jurisdiction the equal protection of the laws.
U.S. Constitution, Amendment XIV
So how can the petitioners claim a violation of the Equal Protection Clause?
On its face, SB1 incorporates two classifications: one based on age (allowing certain medical treatments for adults but not minors) and another based on medical use (permitting puberty blockers and hormones for minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence). Classifications based on age or medical use are subject to only rational basis review.
The plaintiffs argue that SB1 warrants heightened scrutiny because it relies on sex-based classifications. But neither of the above classifications turns on sex. Rather, SB1 prohibits healthcare providers from administering puberty blockers or hormones to minors for certain medical uses, regardless of a minor’s sex. While SB1’s prohibitions reference sex, the Court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny. And such an approach would be especially inappropriate in the medical context, where some treatments and procedures are uniquely bound up in sex.
The Supreme Court has established a precedent that classifications based on age and medical use only require rational basis review. Remember, this is not law, but the history of the court. While the petitioners (the plaintiffs in the original case) argue that because the classification are sex based, they should receive a higher level of scrutiny. I find this laughable for two reasons. First, the “transgender” movement keeps claiming that sex and gender are different. So if SB1 prohibits the use of these drugs for gender identification, how is that sex discrimination? Second, SB1 doesn’t discriminate based on sex, since the sex of the recipient is not a consideration.
The application of SB1, moreover, does not turn on sex. The law does not prohibit certain medical treatments for minors of one sex while allowing those same treatments for minors of the opposite sex.
SB1 does not exclude any individual from medical treatments on the basis of transgender status.
Thomas Concurrence
Justice Thomas made an interesting point about expertise and consensus in his concurrence.
The United States asserted that “the medical community and the nation’s leading hospitals overwhelmingly agree” with the Government’s position that the treatments outlawed by SB1 can be medically necessary. … The implication of these arguments is that courts should defer to so-called expert consensus.
There are several problems with appealing and deferring to the authority of the expert class. First, so-called experts have no license to countermand the “wisdom, fairness, or logic of legislative choices.” … Second, contrary to the representations of the United States and the private plaintiffs, there is no medical consensus on how best to treat gender dysphoria in children. Third, notwithstanding the alleged experts’ view that young children can provide informed consent to irreversible sex-transition treatments, whether such consent is possible is a question of medical ethics that States must decide for themselves. Fourth, there are particularly good reasons to question the expert class here, as recent revelations suggest that leading voices in this area have relied on questionable evidence, and have allowed ideology to influence their medical guidance.
Taken together, this case serves as a useful reminder that the American people and their representatives are entitled to disagree with those who hold themselves out as experts, and that courts may not “sit as a super-legislature to weigh the wisdom of legislation.”
Wow, four really good points. Let’s focus on the last one: The questionable evidence. One of the points Justice Thomas brought up during his dissent was the dependence of so many arguments on the work of World Professional Association for Transgender Health (WPATH).
Over a decade ago, one of WPATH’s contributors explained that “‘WPATH aspires to be both a scientific organization and an advocacy group for the transgendered,’” and admitted that WPATH’s Standards of Care “‘is not a politically neutral document.’” … WPATH’s apparent willingness to let political interests influence its medical conclusions highlights this reality. States are never required to substitute expert opinion for their legislative judgment, and, when the experts appear to have compromised their credibility, it makes good sense to chart a different course.
It seems to me that a goal of advocacy is a direct conflict of interest to a so-called scientific organization. Yet these advocates seem to be the basis for so much of the “transgender” community’s arguments for physically altering children to treat a mental condition.
Barrett Concurrence
Meanwhile, Justice Barrett brought up the question of “transgender” individual being part of a suspect class.
The Sixth Circuit held that transgender individuals do not constitute a suspect class, and it was right to do so. To begin, transgender status is not marked by the same sort of “‘obvious, immutable, or distinguishing characteristics’” as race or sex. … In particular, it is not defined by a trait that is “‘definitively ascertainable at the moment of birth.’” … The plaintiffs here, for instance, began to experience gender dysphoria at varying ages—some from a young age, others not until the onset of puberty. … Meanwhile, the plaintiffs acknowledge that some transgender individuals “detransition” later in life—in other words, they begin to identify again with the gender that corresponds to their biological sex. … Accordingly, transgender status does not turn on an “immutable . . . characteristi[c].”
As I’ve been saying, “transgender” is not a physical condition but a mental one.
Sotomayor Dissent
To give meaning to our Constitution’s bedrock equal protection guarantee, this Court has long subjected to heightened judicial scrutiny any law that treats people differently based on sex.
Once again it seems Justice Sotomayor is quite comfortable not only making up facts to fit her agenda, but defeating her case in the same argument. She starts out by claiming SB1 discriminates based on sex, then she writes this:
Tennessee has taken a different tack. The State enacted SB1 to categorically prohibit physicians from prescribing puberty blockers and hormone therapy for the purpose of treating gender dysphoria in minors.
So which is it Justice Sotomayor? Is Tennessee prohibiting physicians from prescribing these drugs based on sex or are they treating gender dysphoria? You can’t have both.
This case presents an easy question: whether SB1’s ban on certain medications, applicable only if used in a manner “inconsistent with . . . sex,” contains a sex classification. Because sex determines access to the covered medications, it clearly does.
Except you’ve already stated that the prohibition on the use of these drugs is based on the condition being treated, not the sex of the individual. I guess, like WPATH, Justice Sotomayor is not going to let a little thing like facts get in the way of her advocacy.
Conclusion
Ultimately, the court held the following:
Held: Tennessee’s law prohibiting certain medical treatments for transgender minors is not subject to heightened scrutiny under the Equal Protection Clause of the Fourteenth Amendment and satisfies rational basis review.
Since SB1 is not subject to strict scrutiny, the court affirms the Sixth Circuit decision, leaving the law in place and unchallenged. The reason behind this decision though, goes beyond the question of scrutiny.
This case carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field. The Equal Protection Clause does not resolve these disagreements. The Court’s role is not “to judge the wisdom, fairness, or logic” of SB1, … but only to ensure that the law does not violate equal protection guarantees. It does not. Questions regarding the law’s policy are thus appropriately left to the people, their elected representatives, and the democratic process.
I love it when a court stays within its own limits. Contrary to what Justice Sotomayor wrote in her dissent, judging the wisdom, fairness, or logic of a law is outside of the court’s purview. That is a job for the elected representatives of the people.
Setting aside whether sex-transition treatments for children are effective, States may legitimately question whether they are ethical. States have a legitimate interest “in protecting the integrity and ethics of the medical profession.”
Which is exactly what Tennessee has done. They have found the use of puberty blockers and hormones to treat gender dysphoria unethical for minors. Beyond that, I believe Justice Thomas made a very important point when he wrote:
This case carries a simple lesson: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct.
Neither courts, nor anyone for that matter, should assume the self-described experts are correct. Or, as the second pillar of The Constitution Study processes states:
An expert opinion is still only an opinion until there is proof.
Paul Engel, Founder, The Constitution Study
I only wish more people would learn this lesson.
© 2025 Paul Engel – All Rights Reserved
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Author: Paul Engel
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