5 hours ago
5
By now, it is a ritual: every June, Americans endure several weeks of agonizing suspense, as we wait to hear how the supreme court will erode our freedoms, attack our dignity, undermine self-government and empower those who enrich themselves at our expense. The court, controlled by career politicians in robes who were hand-selected for their loyalty to the rightwing and their willingness to be wildly intellectually dishonest in pursuit of Republican policy objectives, has ended the right to abortion, desiccated the Voting Rights Act, made state gun regulations nearly impossible and declared the president functionally immune to criminal law. Many of us waited, with a mixture and terror and disgust, to see what cruelties the court would deliver for us in 2025.
The justices decided to start by attacking vulnerable children. In a 6-3 split, the court’s conservatives ruled on Wednesday that Tennessee’s law banning transition-related healthcare for minors can remain in effect. The law prohibits hormone therapies and surgeries only for their use in treating gender dysphoria; cisgender minors retain access to these drugs. The statute is on its face sex-specific and designed to mandate certain forms of gender conformity: the care that it bans, it bans on the basis of a patient’s sex. This is in straightforward violation of the 14th amendment’s equal protection clause, which has long been interpreted to ban facially sex-discriminatory laws and those that encourage sex-role stereotyping. The court decided to ignore this precedent and the plain intent of Tennessee’s statute, and in the process it both imposed a cruel and needless deprivation on trans children and their families, and also substantially weakened constitutional guarantees of equal protection of the sexes.
The ruling in United States v Skrmetti is likely to shield other bans on transition-related healthcare for minors, which are now on the books in most states. That alone will have a devastating impact on trans children, whom studies consistently show fare best under an affirmative model of care that retains the option to delay puberty or pursue cross-sex hormones – options that the court has now removed from these children and their parents. But the opinion’s reasoning suggests something broader, and darker, about the status of trans people under the law – with dire implications for queer people, women, and anyone else not interested in or suited to living a neatly gender-conforming life. For in seeking to uphold Tennessee’s care ban, the court circumvented sex equality provisions in a way that seems to render moot much of the 14th amendment’s applicability to sex discrimination cases. Facially sex-discriminatory statutes are now broadly permissible, the court suggests, so long as they impose gendered limits on the conduct of people of both sexes.
The reasoning, such as it is, of the majority in Skrmetti is thus: because the Tennessee law does not allow either assigned-male nor assigned-female minors to access transition-related care, the law must therefore not be sex discriminatory. This logic is almost laughably bad-faith: Tennessee’s ban explicitly prohibits patients from accessing medicine on the basis of their sex, prohibiting male-assigned patients from accessing estrogen while permitting female-assigned patients to access it, and barring female-assigned patients from accessing testosterone while allowing it to be prescribed to male-assigned ones. Sex is the sole determining characteristic: it is sex that, under Tennessee’s law, licenses conduct for some individuals and prohibits the same conduct for others.
Facial sex discrimination, then, is not impermissible, according to the court, and not even subject to heightened scrutiny. Rather, all that functionally remains of the constitution’s protection against sex inequality is a bar on “invidious sex discrimination”, a subjective and difficult to prove standard that much functional mistreatment of people on the basis of their sex or gender identity will fail to meet. The court seemingly goes out of its way to ensure that the obvious and plain anti-trans malice that motivates this law will not meet that threshold – claiming, preposterously, that trans people are not distinct enough, and have not suffered enough as a class, to be identifiable as a targeted group deserving of legal protection. What results is a kind of separate-but-equal logic of sex discrimination, in which persons of all sexes and genders are barred from opportunities that only people of certain sexes or genders require. The court has elevated this plain discrimination into a kind of parody of equality.
What’s left of equal protection? Over the past few years, the court has embarked on a project of allowing greater and greater discrimination against LGBTQ+ persons, carving out vast exceptions to allow their mistreatment under frameworks such as public accommodations civil rights law and staggeringly expansive understandings of religious freedom rights. Now, it has licensed states, too, to target trans people, and in the process, it has given them further leeway to discriminate against cis women. Skrmetti, after all, would not be possible without Dobbs, the supreme court’s most sweeping bigoted assertion that there is no sex discrimination in place when a medical procedure that is only needed on the basis of sex is prohibited to those who do and do not require it alike.
Skrmetti, which erodes sex equality under the 14th amendment, does not take aim at Bostock, the 2020 decision that found that discrimination based on sexual orientation and gender identity were prohibited under the sex equality provision of Title VII of the 1964 Civil Rights Act. But it is hard to imagine that a court with so much hostility towards the civil rights claims of the historically marginalized will continue to find that gay and trans people can claim protection from discrimination under that law, either. It is not hard to imagine Skrmetti, along with Dobbs, being the opening salvos in a broader legal assault on the status of women and queer people – one that removes our rights one by one, making us more and more vulnerable, and sanctioning more and more of our derision, degradation and unfreedom. At the very least, this week, the court ruled that gender conformity can be enforced, at least on children, by the state. All queer people – and all cis women who aspire to be free – have had their dignity demeaned as a result.
-
Moira Donegan is a Guardian US columnist
