Skrmetti Beyond Scrutiny

Introduction

In United States v. Skrmetti,¹ the Supreme Court upheld Tennessee Senate Bill 1 (SB 1), a state law that prohibits transgender minors from accessing gender-affirming care.² For the first time, the Court considered a fundamental question in civil rights law: How does the Fourteenth Amendment regard transgender people? The Court gave little guidance. It did not sort out principles for deciding when anti-transgender discrimination classifies by sex, nor whether transgender people are a suspect class. Instead, the Court held that “[i]n the medical context, the mere use of sex-based language does not sweep a statute within the reach of heightened scrutiny.”³ It turned a question of equality into an exercise in deference.

For more than a century, American law permitted sex discrimination on the theory that women were naturally inferior to men.⁴ Starting in the 1970s, the Court began to confront this stereotype at its root by applying elevated scrutiny to distinctions based on sex.⁵ The “intermediate scrutiny” standard tests whether a legal sex classification is “substantially related” to advancing “important governmental objectives”⁶ without “rely[ing] on overbroad generalizations about the different talents, capacities, or preferences of males and females.”⁷ Some sex classifications survive this standard,⁸ but they are always evaluated under heightened scrutiny.⁹

Or are they? Skrmetti determined that SB 1 does not classify by sex, and so the Court only applied rational basis review.¹⁰ Looked at one way, Skrmetti appears to offer a narrow holding about medical classifications.¹¹ From another vantage point, the ruling mischaracterized a sex classification and applied the wrong standard of review.¹² The Court’s reference to “the medical context”¹³ might be a passing phrase, but it could also signal a new route to bypass elevated review altogether. Did Skrmetti sidestep intermediate scrutiny because there were no sex classifications to be found, or did it move sex discrimination — at least in some forms, or in some contexts — beyond constitutional scrutiny?

In this Comment, I argue that Skrmetti inaugurated a new approach to sex classifications “in the medical context.” The statute does much more than mention sex incidentally. It creates sex categories by defining “sex” itself.¹⁴ Once SB 1 is properly understood as a sex classification, the Court’s move to rational basis review looks like a consequential error. The potential reach of the new approach is difficult to decipher, however, because the Court did not offer limiting principles. The medical context exception to heightened scrutiny may apply only to bans on gender-affirming care for transgender minors. On that narrow reading, the opinion fails by its own standard, and it enables substantial harm to transgender youth,¹⁵ but it does not inflict significant damage to the cause of transgender equality. If, on the other hand, the Court pushes Skrmetti to its limits, it could evade heightened scrutiny for a wide range of sex-related regulations by describing them as essentially medical.¹⁶ On this trajectory, the Court could convert the Constitution’s obligation to eliminate sex discrimination into a presumption of deference, inviting state actors to justify inequality as a matter of biological fact once again.¹⁷

The Court mooted something similar three years ago in Dobbs v. Jackson Women’s Health Organization.¹⁸ In Dobbs, the Court described abortion regulations as “health and safety measures”¹⁹ which would not be considered sex classifications for equal protection purposes.²⁰ Although the analysis was in dicta, scholars noticed that the Court recast a sex-related government regulation as benign medical line-drawing.²¹ To get there, the Dobbs Court relied on Geduldig v. Aiello,²² an infamous case which determined that pregnancy discrimination does not always classify by sex.²³ Over the half-century since Geduldig was decided, scholars have pilloried its classification reasoning for failing to appreciate the close proxy between pregnancy and women.²⁴ Legal feminists spent decades convincing courts that regulating reproductive biol-ogy was often a proxy for sex discrimination,²⁵ so Dobbs elicited fear that the Court would find new applications for Geduldig’s faulty formalism.²⁶

It also raised concerns that deeper mischief was waiting in the wings. When reasoning about classifications, the Geduldig Court ignored the ways pregnancy discrimination harms women by reinforcing stereotypes about their social role.²⁷ In the historical context of the time, when debates raged over the relationship between pregnancy and sex stereotypes, Geduldig looks to some scholars like a rejection of the idea that pregnancy regulation reinforces background assumptions that women should be domestic and reproductive.²⁸ In the time since, an anti-stereotyping principle has become the lodestar of sex-based equality doctrine.²⁹ Many wondered if Dobbs and its reliance on Geduldig might signal the Court’s appetite to ignore sex classifications altogether by describing them as a natural outgrowth of physical differences.³⁰

Both fears roused by Dobbs — about classification analysis and standard of review — have been vindicated by Skrmetti. The Court’s classification reasoning relied on “the medical context” to describe gender dysphoria as such a close proxy for transgender identity that SB 1 is not a sex classification,³¹ but also not a sufficient proxy for transgender identity to count as a classification by transgender status.³² The Court then compounded its mistake by offering SB 1 rational basis review.³³ If we peel back the layers, we can see that the effect was to move the locus for evaluating which sex classifications are permissible from the application of heightened scrutiny to the threshold question of whether a classification exists in the first place. Taken together, Skrmetti’s approach to “the medical context” produced a troubling double deference: First the Court deferred to the state’s claim that SB 1 is sex neutral because it reflects medical categories, and then the Court offered the statute its most deferential level of review.³⁴

At each step, the Court’s deference was unwarranted. The legislative history, text, and structure of SB 1 all show that the statute reflects Tennessee’s preference that minors conform to the sex they were assigned at birth, or in other words, that young people not live transgender lives.³⁵ The resulting regulatory scheme classifies by sex and transgender status quite directly. SB1 is not a ban on gender-affirming care for patients under eighteen reflecting expert medical judgments. SB 1 authorizes most minors to access puberty blockers, hormones, and surgery, with an exception only for transgender youth. The statute singles out transgender youth for special prohibitions because they are transgender.

SB1 draws this line by defining sex to exclude transgender minors,³⁶ and by using that definition to distribute access to healthcare.³⁷ Rather than examine SB 1’s definition of sex — the proper object of the Court’s inquiry — the Court flirted with providing its own definition of sex as the factual basis from which to reason about classifications.³⁸ If the Court persists in this kind of slip, it could damage transgender equality outside the “medical context,” as well as the broader landscape for sex equality under the Constitution.

We may have a better sense of Skrmetti’s scope by this time next year. The Skrmetti opinion had hardly arrived before the Court granted certiorari in Hecox v. Little³⁹ and B.P.J. ex rel. Jackson v. West Virginia State Board of Education,⁴⁰ two cases challenging categorical bans on transgender girls’ participation in women’s sports.⁴¹ If we consider what Skrmetti may portend for Hecox and B.P.J., its errors become more alarming. Double deference could again provide the Court with a sleight of hand to portray a sex and status classification as a neutral reflection of medical authority. Like SB 1, the laws at issue in those cases also define sex to sort individuals into two categories and then rely on that definition to distribute benefits.⁴² But where Skrmetti skirted the definition issue, Hecox and B.P.J. depend on it. The transgender girls in the next cases argue that Idaho and West Virginia define sex for the express purpose of excluding athletes like them, while the state petitioners contend that dividing sports by “biological sex” is not discriminatory.⁴³ The Court may be forced to adjudicate the definition of sex to determine how the statutes classify and how closely to evaluate them.

Skrmetti, Hecox, and B.P.J. are likely to be read together in the long run, since they raise related questions about sex equality and the constitutional status of transgender people under the Equal Protection Clause. In the interregnum between them, I consider Skrmetti on its own, and as a potential harbinger of sex equality doctrine to come. First, Part I reconstructs Skrmetti’s approach to “the medical context.” The Court determined that SB 1 does not turn on sex because it mentions sex only in service of medical descriptions.⁴⁴ This “mere use” of “sex” in the medical domain, the Court concluded, does not warrant heightened scrutiny.⁴⁵ The contours of the “medical context” are not defined. In Part II, I consider Skrmetti as postscript to the specific dispute in the case. Setting aside the Court’s coming engagement with Hecox and B.P.J., I argue that Skrmetti’s classification reasoning relies on a mistaken double deference. Examining SB 1 reveals that the statute reflects Tennessee’s policy judgments about transgender youth, not objective medical categories. The opinion falls from within. Finally, Part III considers Skrmetti as a prelude to Hecox and B.P.J. If allowed to expand, double deference could puncture more holes in equal protection jurisprudence — for “the medical context,” but also perhaps the athletics context, or more. The Court could set additional blatant forms of sex and status discrimination beyond scrutiny.

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* Associate Professor, Columbia Law School. For discussion, feedback, and guidance that improved the piece tremendously, I am grateful to Ashraf Ahmed, Courtney Cahill, Jessica Clarke, Katie Eyer, Katherine Franke, Cary Franklin, José Argueta Funes, Suzanne Goldberg, Serena Mayeri, Melissa Murray, Farah Peterson, Reva Siegel, and Nelson Tebbe. The piece would not have been possible without exceptional research assistance from Carly Feldman, and support from the editors of the Harvard Law Review. Remaining errors are mine.