Off the Kuff

It’s about equal protection under the law.

In a striking echo of how they dispensed with abortion rights, many right-wing justices Wednesday advocated for a “leave it to the states” approach on trans health care, rhetorical cover for a legal logic that could open the door to nationwide bans and a potential blow to the Equal Protection Clause more broadly.

The case, U.S. v. Skrmetti, hinges on Tennessee’s ban on gender-affirming care for trans minors. It blocks those children from medical treatments — including hormones and puberty blockers — that it keeps available for minors seeking that treatment for other reasons.

The Biden Department of Justices argues, and the liberal justices hammered Wednesday, that such a law is a clear facial sex classification: The availability of the medication is predicated on whether the minor seeking it is trans or not. A law that discriminates by sex that way triggers intermediate scrutiny, a higher bar of legal review. The DOJ wants the Court to find that this law does trigger that higher threshold — contra what the Sixth Circuit Court of Appeals found — and send it back down for reappraisal under that standard.

Tennessee counters that its law is not sex-based discrimination, since neither boys nor girls can get the treatment for the purpose of transitioning (though, as Justice Ketanji Brown Jackson said, similar reasoning was applied to interracial marriage bans, where Black people couldn’t marry white people and vice versa).

The right-wing justices said very little by way of arguing that the law does not discriminate on the basis of sex, which, if found to be the case, would only open it to a rational basis standard — a much lower bar that would make it nearly impossible to challenge anti-trans legislation, and even other sex-based discrimination.

They were virtually mum on that central question of the case — whether this law needs to be examined with a rational basis lens or an intermediate scrutiny one — and were more eager to move on to questions that are downstream of that initial determination, including the evidence about whether gender-affirming care is beneficial or not.

Jackson noted the oddity of the approach.

“I’m suddenly quite worried about the ‘role of court’ questions and the constitutional allocation of authority concerns because I understood that it was bedrock in the Equal Protection framework that there was a constitutional issue in any situation in which a legislature is drawing lines on the basis of a suspect class, that it’s a constitutional question that is being raised when that is happening as a threshold matter,” she said. “And then you may get into, why is it happening? What is the justification?”

“This kind of idea, that the way we look at it is not, first, ‘are you drawing these classifications’ and then, ‘state, give us your evidence so we can make sure there’s a proper fit,’ if instead we’re just doing what the state is encouraging here in Loving — ‘there are lots of good reasons for this policy and who are we as the Court to say otherwise?’ — I’m worried that we’re undermining the bedrock of some of our Equal Protection cases,” she added.

See here for the previous update. Other federal courts have struck down similar bans, but the Sixth Circuit was the outlier, and so here we are. I’m going to point you to a bunch of other coverage and analysis, but the one thing I read that really made me want to break things was this.

It’s hard to deny that Tennessee’s law treats people differently based on sex. For one, the Tennessee law explicitly states that its purpose is to “encourage minors to appreciate their sex” and prohibit treatments that might “encourage minors to become disdainful of their sex.” As Justice Elena Kagan put it on Wednesday, “sounds to me like we want boys to be boys and we want girls to be girls.”

But at oral argument on Wednesday, Chief Justice John Roberts kept trying to dodge that constitutional analysis by describing the medical science around gender-affirming care as “evolving” and “technical.” “Here, it seems to me that the medical issues are much more heavily involved” than in other sex discrimination cases the court has ruled on, Roberts said. “Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?”

Justice Brett Kavanaugh repeatedly made similar points about stepping back. “The Constitution doesn’t take sides on how to resolve that medical and policy debate,” he said. “Why isn’t it best to leave it to the democratic process?”

But the premise that the court was being asked to make a scientific determination was simply untrue. Again, the question before the court was whether Tennessee relied on sex to ban gender-affirming care. That’s because while the Constitution may not take a position on a certain medical treatment, it does take a position on whether a treatment can be denied on the basis of sex. As Solicitor General Elizabeth Prelogar, arguing for the United States government, put it to Roberts, “It would be a pretty remarkable thing for the Court to say that just because we’re in the space of medical regulation, you are not going to apply the traditional standards that ordinarily are applied when there’s a sex classification.” It would also be a classic Roberts move: reaching a radical conclusion while claiming the mantle of restraint.

So Roberts theorized the justices have a constitutional duty to defer to the legislature. “It’s not really so much a question of qualifications,” Roberts said, even though he had repeatedly suggested that it was. “It’s more questions of constitutional allegation of authority. We might think that we can do just as good a job with respect to the evidence here as Tennessee or anybody else, but my understanding is that the Constitution leaves that question to the people’s representatives rather than to nine people, none of whom is a doctor.”

This notion of the humble court flies in contrast with the Roberts’ Court’s usual pattern of deciding cases in a manner that augments its own authority. Time and again, the justices have let neither mootness nor irreparably weak standing theories stop them from ruling when they want to decide a hot button issue. The justices have invented the so-called “major questions doctrine” to shoot down agency programs they deem too big or expensive to enact without clear congressional authorization, leaving the nine justices to decide whether an action survives—not the elected branches. Roberts has authored several of these opinions.

And last term, the court threw out Chevron deference, the judiciary’s decades-long practice of deferring to reasonable agency interpretations of statutes when the law is unclear. The opinion, by Roberts, was a judicial power grab: rather than defer to the expertise of agency policy-makers and scientists, judges should take it upon themselves to second guess all manner of US regulations. As Kagan wrote in her dissent: “In recent years, this Court has…substituted its own judgment on workplace health for that of the Occupational Safety and Health Administration; its own judgment on climate change for that of the Environmental Protection Agency; and its own judgment on student loans for that of the Department of Education. But evidently that was, for this Court, all too piecemeal.”

Despite this track record of amassing power, on Wednesday, Roberts shifted directions to urge deference. Conservatives on the court rarely grant such deference to the federal government—at least under a Democratic president—but often reserve it for states seeking a constitutionally dubious outcome. This may reflect an ideological dislike for over-regulating states. But it also demonstrates an aversion to enforcing the Constitution’s bedrock civil rights protections.

A good example are the court’s decisions granting states almost entirely free rein to gerrymander legislative and congressional maps. In 2017, the court was served an opportunity to place constitutional limits on extreme partisan gerrymandering. But during oral argument, Roberts spurned it, calling the proposed method of determining when voting boundaries are unconstitutional “sociological gobbledygook,” and, in writing for the court, Roberts declined to decide the issue on a technicality. In a subsequent 2019 case heard after the roster of justices had shifted, Roberts had the votes for the outcome he wanted and authored an opinion holding that partisan gerrymandering was a political issue that could not be litigated in federal court. The federal judiciary was, conveniently for Republicans in the case, bowing out. (It’s worth noting that it appears that next year’s GOP majority in the House of Representatives will be a result of the court’s gerrymandering permission slip.) In 2023, the court made it much harder to fight gerrymandering that uses race to sort voters. Writing for the conservative majority, Justice Samuel Alito created a new standard for racial gerrymandering cases, now requiring that courts act with the “presumption that the legislature acted in good faith.” Under such a presumption, courts are instructed that the word of the legislators outweighs their deeds.

On Wednesday, that same kind of instruction appeared likely to carry the day in when it comes to gender-affirming care bans. Rather than assess whether legislators use sex to unconstitutionally limit access to the drug and whether doing so is justified, the justices could simply defer to the good judgment of the legislators.

The Supreme Court just really sucks right now, and there’s nothing we can do about it. Fixing that better damn well be high on the priority list the next time that opportunity presents itself.

Two more points to note before I close. You may think that this is just about trans kids, and you may be uncomfortable with the idea of gender affirming care for them. But banning such care for minors directly affects trans adults too. And up next on the legislative agenda is targeting trans adults. If we’re not equal under the law, then we can start to delineate just how much less equal some of us are. Who’s comfortable with that? Law Dork, Slate, Slate again, and The 19th have more.