Supreme Court Gets Equal Protection Question Right in Skrmetti

In U.S. v. Skrmetti, the US Supreme Court didn’t reach everything it could have, but it got the biggest question right in a way that promises to have legs across the legal system.

The federal government argued that SB1, a Tennessee statute, violated the Fourteenth Amendment’s equal protection clause. In the interest of assuring that Tennessee’s children—prior to receiving any treatment—reach an age at which they are capable of understanding the risks of potentially irreversible consequences arising from refashioning their bodies, SB1 prohibits a small set of medical interventions for minors. It dealt only with sex-transition interventions (hormonal and surgical) and only with such treatment of children.

The federal government argued this was sex discrimination against transgender children, denying them equal protection.

Many identitarian activists had argued the same.

Ever since the justices decided Bostock v. Clayton County, they argued both that it left American law specifically protecting transgender individuals and that its analysis should inform not just the meaning of Title VII’s employment laws at issue in Bostock, but also the Fourteenth Amendment.

Now we know better. Six justices agreed that SB1 complied with the Fourteenth Amendment’s equal protection clause. They uniformly agreed that courts must use “heightened scrutiny” to gauge the constitutionality of laws treating the sexes differently.

Five agreed that SB1—with its rules turning solely on patients’ age and medical purpose—imposes no such sex-specific rule. They agreed that SB1 makes no individual’s sex a “but-for” cause of their treatment under the law (meaning that if their sex were different, SB1’s outcome wouldn’t change).

As a result, these justices questioned only whether Tennessee had advanced a rational basis for its enactment of SB1. They concluded that it had, and that Tennessee had acted within the “wide discretion” the Constitution affords states to “pass legislation in areas where there is medical and scientific uncertainty.”

They could have done more.

Justices Samuel Alito, Amy Coney Barrett, and Clarence Thomas would have squarely faced the argument that if the law had classified Americans by their transgender indentity, it would be subject to tougher review. They said much worth considering.

Most importantly, though, each would have rejected that argument, in part, because all the parties in Skrmetti (including the private plaintiffs and the Justice Department) conceded that gender identity changes, for at least some, over time. These justices would have held that because case-law requires “immutability” of a trait to impose heightened scrutiny, gender identity’s mutable nature required that ordinary rational basis review would apply to such a law.

Chief Justice John Roberts and Justices Neil Gorsuch and Brett Kavanaugh didn’t reach these questions. They may yet agree, when a future case—perhaps one litigating President Donald Trump’s policies barring gender dysphoric Americans from military service—forces them to do so. Or when they get there, they may side with Skrmetti’s dissenters. We simply won’t know until that case arrives.

Nonetheless, Skrmetti should dictate the result in almost all the related pending and potential future constitutional cases. Most ongoing constitutional transgender litigation (including those focused on bathroom policies and public-school sports programs) involves policies that—like SB1—set lines based on something other than gender identity.

Skrmetti‘s reaffirmation that courts should search only for a rational basis underlying these policies should assure their constitutionality. It should also serve as a roadmap for how policymakers should enact policies touching on these topics in the future: Draw lines based on some other categorization, seemingly including policies equalizing treatment of the biological sexes, if you want it to survive contact with the judiciary.

More, to the extent the majority’s restatement of Bostock clarifies that it meant only what it said—that Title VII prohibits employers accepting any behaviors from one biological sex that it rejects in the other, but creates no new category of protected class—it may also prevent future errors in employment law.

The case is United States v. Skrmetti, U.S., No. 23-477, decided 6/18/25.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Dan Morenoff is the executive director of the American Civil Rights Project and an adjunct fellow at the Manhattan Institute.

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