The state of Tennessee today filed in the Supreme Court its excellent response brief in United States v. Skrmetti. In that case, the Biden administration is challenging a Tennessee law that prohibits healthcare providers from subjecting minors to so-called gender-transition interventions.
I’ve already written extensively about the Solicitor General’s false claims about the supposed evidence in favor of such interventions, and I’ve also highlighted the hornet’s nest of impenetrable disputes that the Supreme Court would spend the coming decades trying to sort through if it were to commit the gross folly of concocting a new rule that laws affecting individuals who identify as transgender are subject to heightened scrutiny under the Equal Protection Clause.
For present purposes, I will simply reproduce in the remainder of this post the introduction to Tennessee’s response:
The Constitution vests politically accountable state officials with primary responsibility for protecting the public health and welfare. With such power has always come wide discretion to regulate medical practices, particularly in areas of scientific uncertainty. That legislative leeway enables differing approaches to evolving medical disputes. This case asks whether the Equal Protection Clause requires courts to short-circuit democratic resolution of one such dispute— the appropriateness of providing life-altering gender-transition procedures to minors.
In recent years, there has been a rapid rise in the provision of puberty blockers, hormones, and surgeries to transgender-identifying youth. Traditionally, most U.S. doctors declined to provide these interventions to minors. But following the lead of several European countries, the practice exploded in the 2010s. Over time, though, many of the European countries that pioneered these interventions have pulled back, restricting minors’ access based on safety and efficacy concerns.
So when media reports flagged a Tennessee hospital performing gender-transition interventions on minors, lawmakers examined this live medical dispute. The Tennessee legislature surveyed systematic reviews, took stock of tightened restrictions in Europe, and heard firsthand accounts of regret and harm from detransitioners. The legislature then passed SB1 to restrict pharmaceutical and surgical interventions for gender transition until a person turns 18. Twenty-three other States have adopted similar protections.
The federal government seeks to displace Tennessee’s legislative judgment by reading its preferred policies into the Constitution. But the Equal Protection Clause does not commission this Court as the nation’s “ex officio medical board with powers to approve or disapprove medical and operative practices and standards throughout the United States.” Planned Parenthood v. Danforth, 428 U.S. 52, 99 (1976) (White, J., concurring and dissenting in part). It protects against discriminatory classifications, and SB1 contains none.
SB1 includes no sex classification. It draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes. And boys and girls fall on both sides of that line.
With no claim under the existing framework, the government seeks a novel path to heightened review under Bostock v. Clayton County, 590 U.S. 644 (2020). But constitutionalizing Bostock’s but-for-sex test would defy this Court’s equal-protection precedents, distort Bostock’s Title VII-centric reasoning, and perversely permit use of sex-based scrutiny to roll back women’s rights. This Court should decline that doctrinal revolution, especially because sex is not a but-for cause of SB1’s age- and use-based restrictions.
Nor should this Court break new ground by striking down SB1 on a transgender-discrimination theory. SB1 does not classify based on transgender status. And the government’s cursory argument for heightened review fails to justify expanding this Court’s limited list of quasi-suspect classifications for the first time in half a century.
SB1 is subject to—and easily satisfies—rational-basis review. It passes constitutional muster under any standard. The government insists that SB1 bucks a “medical consensus” on gender-transition interventions for minors. But that account altogether ignores the risk-benefit assessment of European health authorities and discounts the good-faith decisions of half the States in this country. Willful ignorance of conflicting medical views cannot erase the unknowns. And this Court grants “state and federal legislatures wide discretion to pass legislation in areas where there is medical and scientific uncertainty”—even in heightened-review cases. Gonzales v. Carhart, 550 U.S. 124, 163 (2007). While the government is free to favor its transition-first, ask-questions-later approach, the Constitution does not bind Tennessee to that same choice.
This case involves a routine exercise of state power that touches on a controversial topic. But not every contentious social issue calls for a constitutional override. The Sixth Circuit should be affirmed.