By: Max Ehrlich
Volume X – Issue II – Spring 2025
I. INTRODUCTION
As attacks on transgender individuals become more commonplace both in the courts and the federal executive branch, special attention has been paid to how the Roberts Court will rule on laws banning gender affirming care for minors. U.S. v. Skrmetti, which challenges Tessancess’s ban on gender affirming care under the 14th Amendment, is a pressing case expected to be decided by the Court by the end of its 2024–2025 term. At the center of the case is whether the Court will consider the Tennessee statute at issue as sex discrimination, given that the text of the statute directly categorizes individuals based on their sex. The way it is decided will tell us a great deal about the Court’s commitment to textualism as its defining legal principle, as they consider whether to keep to their holding in Bostock v. Clayton County. Under textualist interpretation, which the Court has applied to statutory text relating to sex discrimination’s applicability to Title VII in Bostock v. Clayton County, the statute should clearly be considered sex discrimination. However, the Court seems to be tilting in the other direction. [1] This article takes the position that the Court’s hedging on their textualist viewpoint from Bostock weakens the argument that the current Court adheres exclusively to legal principles rather than policy considerations. At the very least, their commitment to a textualist interpretation of equal protection that protects the LGBTQ community is in serious doubt.
II. BOSTOCK AND LIBERAL TEXTUALISM
The Court’s ruling in Bostock has come to be seen as a strong example of textualism leading to liberal results, a display of the Roberts Court’s commitment to a stringent interpretation of equal protection that would extend to future cases. [2] In a six to three decision, the Court used highly textualist reasoning to determine that discrimination against transgender or gay individuals violates Title VII as sex discrimination. While the statute does not specifically mention sexuality or gender expression, Gorsuch’s majority opinion argues that adverse employment actions against, for example, men who romantically like men, is discriminatory when the same employment action would not occur against a woman who romantically likes men. [3] Gorsuch crafted this decision in a way that stayed very faithful to the statutory text, which resulted in a liberal outcome and theoretically a stringent application of equal protection to the LGBTQ+ community.
However, while the result of the particular case was liberal, Bostock seems to be more of a oneoff than an example of how the post-Trump Roberts Court will be willing to make liberal decisions on LGBTQ+ issues. Setting aside that the case’s reasoning fails to account for some sexualities and gender expressions, it simply has not been followed up with further decisions reinforcing LGBTQ+ rights, even being undercut by the Court’s recent decision in Department of Education v. Louisiana. [4] Additionally, The Fifth Circuit in Braidwood Management v. EEOC has ruled that religious employers are exempt from Bostock’s protections, [5] and the EEOC has essentially ceased enforcing the portion of Title VII that Bostock affirmed. [6] The unfortunate truth is that Bostock seems to be more an anomaly than a realistic vision for the Roberts Court’s path forward. Even with these concerns over Bostock’s enforcement and the Court’s commitment to it, the case is still a recent binding precedent of the Supreme court. Accordingly, its textualist holding applying equal protection to the LGBTQ+ community would be applied to US v. Skrmetti under the principles of stare decisis.
III. US V. SKRMETTI: CIRCUMVENTING BOSTOCK
The question becomes why conservatives, who generally agree with textualist interpretation, are considering abandoning Bostock’s construction of equal protection, and what legal reasoning do they attempt to supply for doing so?
i. Political Aspect
The answer to the first question lies distinctly in political and policy preferences. Even with its liberal result, Bostock is a case that many conservatives can get behind. One might not feel comfortable with the growing acceptance of transgender and gay individuals in American society, but they will find it hard to claim that those individuals deserve to be fired for their identity. Outwardly endorsing discrimination is something people simply prefer to avoid, both because supporting discrimination seems morally wrong and because endorsing discrimination is not politically expedient. Whether legal scholars want to acknowledge it or not, the Court understands this just as well as anyone else, and they care about their credibility. [7] Bostock, as a case that simply extends discrimination protection to more people, uses textualism to get a liberal result that is still palatable for conservatives.
But when it comes to U.S. v. Skrmetti and the issue of banning gender affirming care, we end up looking at statutory law that has been tailored very specifically to be supported by conservatives and moderates alike. While liberals may feel discomfort with the Tennessee statute at issue, conservatives have no issue taking the ideologically conservative stance in that case, where they can tie their attack on transgender rights to the issue of protecting children. [8] Likewise, judges have an easier time both justifying to themselves coming down on the conservative side of the issue and making a legal argument that the state has a compelling enough interest to override the 14th amendment’s equal protection clause. [9] That said, the next section will explain why this legal reasoning is suspect, making it more a function of litigants’ and judges’ desired outcomes than a function of any proper application of the legal frameworks involved.
ii. Legal Reasoning
The legal reasoning for not invalidating the Tennessee statute on equal protection grounds can be split into two issue areas. First, there is the issue of what scrutiny to apply: based on Bostock we should expect sex classifications in statutes targeting trans people to be considered sex based discrimination and therefore to receive heightened scrutiny, but Tennessee disputes this in their brief. Second, there is the issue of whether the Tennessee statute can overcome intermediate scrutiny by serving an important state interest.
iii. Is this Sex Discrimination?
A discussion of this issue would be incomplete without a look at the actual text of the Tennessee statute. The statute provides that “it is unlawful for an individual to engage in the following practices upon a minor, or cause the practices to be performed, to facilitate the minor's desire to present or appear in a manner that is inconsistent with the minor's sex.” [10] In other words, the statute outlaws these medical procedures only in the case that the procedure’s results are not consistent with the patient’s assigned sex at birth.
The state of Tennessee argues in their brief that this is not a sex classification and therefore only warrants rational basis review. Their argument is that the statute does not treat “similarly situated individuals” differently, since it simply regulates sex transitions for all minors. An equally applicable law in this area has no choice but to make a delineation based on sex to outlaw the potentially harmful practice. They argue that the statute simply references the patient’s sex to make the law apply equally to all sex changes.
The problem with Tennessee’s argument is that it runs afoul of the Court’s holding in Bostock. The Court in Bostock stated that applying a policy differently to a member of the male sex than to a member of the female sex falls under disparate treatment based on sex, regardless of the intent of the statute. In other words, Bostock made equal protection a “but for” proposition. In Bostock, firing a man who was assigned female at birth counted as discrimination because that employment action would not occur “but for” being assigned female at birth; a man who was assigned male at birth would not have been terminated. [11] The same should apply here: Tennessee’s statute does not allow an individual assigned male at birth to receive hormones associated with the opposite gender, while it does allow that same treatment for those assigned female at birth. Using the same “but for” logic from Bostock, under the Tennessee statute, a child assigned male at birth would be able to get hormones associated with being female “but for” their sex. The argument that gender affirming care bans are not about sex discrimination cannot stand if the Court sticks to its holding in Bostock that equal protection is a “but for” proposition. Abandoning Bostock’s “but for” holding signals a lack of commitment to a textualist construction of equal protection for LGBTQ+ individuals.
iv. Is There an Important Governmental Interest?
If the Court were to accept Tennessee’s argument that the statute does not use a sex based classification, then the analysis would proceed through rational basis review and be found constitutional. However, if the Court keeps with its precedent in Bostock, the case should proceed through intermediate scrutiny, under which Tennessee would have to show that the statute serves an important governmental interest. Under rational basis review, the Court would find that the statute is constitutional, since the statute clearly has the rational basis of protecting children. However, Bostock should theoretically be controlling here, so the analysis should proceed by considering whether the Tennessee statute serves an important governmental interest.
Skrmetti and Tennessee’s argument in their 2/2/2024 brief is that protecting minors from psychological harm and potentially harmful drugs are both considered significant interests. They go on to describe the risks associated with these drugs and argue that these risks are particularly important in the context of “an unexplained surge of minors receiving gender-dysphoria diagnoses.”
While Tennessee’s position sounds reasonable, the Biden Justice Department’s brief clarifies why the statute does not actually accomplish the significant governmental interests that Tennessee provided. Just saying that they are interested in protecting children is not enough, given that these surgeries are performed by doctors who deem them to be the correct decision supported by medical evidence. The brief refers to such treatments as “consistent with the medical consensus” and “appropriate and essential to their wellbeing.” In fact, the brief makes it clear that “every major American medical organization agrees that gender-affirming care is safe, effective, and can be medically necessary to treat gender dysphoria in transgender adolescents.”
IV. COURT LIKELY TO RULE FOR TENNESSEE
During oral argument, the majority of the Court’s conservatives seemed to signal that they agreed with Tennessee, though it was unclear whether that was more due to the sex discrimination issue or the state interest issue. [12] Whatever the case, some of the Justices signaled a willingness either to ignore Bostock or to accept Tennessee’s anti-trans ideology as a government interest that gets them around Bostock. It is impossible to say with absolute certainty how the Court will rule, but if they do in fact find in favor of Tennessee, it will signal a willingness to abandon the recent Bostock precedent.
The idea that the Court is really more of an ideological institution than a neutral legal arbiter is not new. Political scientists have done a great deal of work showing that Justices make political decisions and consider policy outcomes in making their decisions on top of legal principles. [13] This does not necessarily mean that Justices are making entirely political decisions; it could simply be that judges’ desired outcomes influence the way they conduct legal reasoning, their judicial philosophy, and their evaluations of parties’ arguments. What US v. Skrmetti will show us definitively, if the Court indeed decides in favor of Tennessee, is that the Court is willing to go so far as to disregard its own recent precedent.
This willingness should come as no surprise, given this Court’s decisions in the last few terms. The post-Trump Roberts Court has signaled a willingness to go back on long-held precedents that were once seen as untouchable. In Dobbs v. Women’s Health Org., The Court overturned Roe v. Wade’s long standing protection of the right to choose. With Loper Bright v. Raimondo, The Court overturned Chevron v. NRDC’s deference to agency rulemaking. Both of these decisions completely changed the landscape of American law despite their flagrant reversals of long standing precedent. These cases suggest a tendency towards a preference for conservative outcomes rather than for precedent-reliant decisions.
V. WHAT THIS MEANS FOR THE COURT
In a time when the Court’s credibility is at a low among the general public, [14] the Justices are poised to abandon liberal textualist precedent in favor of policy preferences in the case of gender affirming care. While this is nothing new for the Supreme Court, the direct admonishment of Bostock, a case that this same Court decided recently, makes it more difficult for the Court to uphold a facade of neutrality. Policy preferences are clearly at play, if the Court decides that banning a medical procedure which doctors consider appropriate to be an important governmental interest. If choosing these preferences over the Court’s own textualist precedents like Bostock becomes a consistent theme, the Court’s credibility may continue to erode among the public, reducing the Court’s institutional power and effectiveness.
Endnotes
[1] Redfield, Elana. “Understanding US v. Skrmetti.” Williams Institute. Accessed April 14, 2025. https://williamsinstitute.law.ucla.edu/publications/understanding-skrmetti/.
[2] Center for American Progress. “Beyond Bostock: The Future of LGBTQ Civil Rights,” August 26, 2020. https://www.americanprogress.org/article/beyond-bostock-future-lgbtq-civil-rights/.
[3] Bostock v. Clayton County, 590 U.S. ___ (2020)
[4] Department of Education v. Louisiana, 603 U.S. ___ (2024)
[5] Braidwood Management v. EEOC, No. 22-10145 (5th Cir. 2023)
[6]Braidwood Management v. EEOC, No. 22-10145 (5th Cir. 2023)
[7] Enns, Peter K., and Patrick C. Wohlfarth. “Making Sense of the Supreme Court—Public Opinion Relationship 1.” In Routledge Handbook of Judicial Behavior, edited by Robert M. Howard and Kirk A. Randazzo, 1st ed., 180–95. New York, NY : Routledge, 2017.: Routledge, 2017. https://doi.org/10.4324/9781315691527-12. ; Barnum, David G. “The Supreme Court and Public Opinion: Judicial Decision Making in the Post- New Deal Period.” The Journal of Politics 47, no. 2 (1985): 652–66. https://doi.org/10.2307/2130901. ; Epstein, Lee, and Andrew D Martin. “Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why).” Journal of Constitutional Law 13, no. 2 (n.d.).
[8] Pal, Sohum. “Countering a Phobic Frame: Understanding and Addressing Gender-Affirming Care Bans.” Columbia Law Review 124, no. 8 (2024): 2371–2412.
[9] Pal, “Countering a Phobic Frame.”
[10] Tennessee Legislature, AN ACT to amend Tennessee Code Annotated, Title 8; Title 9; Title 14; Title 33; Title 63 and Title 68, relative to health, SB 2696, https://www.capitol.tn.gov/Bills/112/Bill/SB2696.pdf
[11] Bostock v. Clayton County, 590 U.S. ___ (2020)
[12] Howe, Amy. “Supreme Court Appears Ready to Uphold Tennessee Ban on Youth Transgender Care.” SCOTUSblog (blog), December 4, 2024. https://www.scotusblog.com/2024/12/supreme-court-appears-ready-touphold-tennessee-ban-on-youth-transgender-care/.
[13] Johnson, Timothy R., James F. Spriggs II, and Paul J. Wahlbeck. “Passing and Strategic Voting on the U.S. Supreme Court.” Law & Society Review 39, no. 2 (2005): 349–78. https://doi.org/10.1111/j.0023- 9216.2005.00085.x. ; Black, Ryan C., Rachel A. Schutte, and Timothy R. Johnson. “Trying to Get What You Want: Heresthetical Maneuvering and U.S. Supreme Court Decision Making.” Political Research Quarterly 66, no. 4 (December 1, 2013): 819–30. https://doi.org/10.1177/1065912913482757.
[14] Copeland, Joseph. “Favorable Views of Supreme Court Remain near Historic Low.” Pew Research Center (blog), August 8, 2024. https://www.pewresearch.org/short-reads/2024/08/08/favorable-views-of-supreme-court-remainnear-historic-low/.