The pseudonymous Ryan Roe is a sixteen-year-old who was designated female at birth but has long identified as a boy. In his early years he was vocal and outgoing, but as he approached puberty in fifth grade he became depressed, anxious, and withdrawn, rarely speaking at school because the increasingly feminine sound of his voice so disturbed him. He threw up before having to go to school every morning.
Ryan’s parents took him to a psychotherapist, but therapy could not address the underlying distress Ryan felt as his body began to develop in ways that contradicted his identity as a boy. In the summer after seventh grade, he was diagnosed with gender dysphoria, a clinical condition resulting from the incongruence between one’s gender identity and one’s sex designated at birth. After lengthy consultations with their therapist and doctors and years of waiting, Ryan and his parents agreed that hormone therapy to masculinize his body was the best course of treatment.
With this medication, Ryan’s condition improved dramatically. As he puts it:
I have found my voice again—in every way. Before treatment, I hid. Now, I like to see myself in the mirror and in photos. I am raising my hand in class again and participating in all aspects of school. I feel stronger—physically, mentally and emotionally. I feel so happy with myself and that makes me feel like I can do and be more.
As for the prospect of stopping treatment, Ryan says, “I know how bad it was before and I don’t want to go back to that place…. I really don’t know how I would survive.”
But that is exactly what he will face should his home state of Tennessee get its way. In 2023 the state enacted a law that bans the only effective medical treatment for adolescents with gender dysphoria: puberty blockers and hormone therapy. It is one of twenty-five states to enact such laws in recent years. Tennessee’s law bars the provision of puberty blockers or hormone therapy for the purpose of “enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” which the law defines as the sex one is designated at birth. Tennessee allows minors to take the same medication to conform to expectations associated with their sex assigned at birth, for example, to delay precocious puberty. The law could not be more explicit in its enforcement of gender conformity. It states that it is designed to “encourage minors to appreciate their sex” by barring treatment “that might encourage minors to become disdainful of their sex.”
Under the Tennessee law, it does not matter that the guidelines for gender dysphoria care that govern medical practice in the United States recognize puberty-delaying medication and hormone therapy as appropriate, medically necessary, and safe treatments for adolescents with persistent gender dysphoria. It does not matter that denying teens this medicine can leave them without treatment options for a condition that can lead to anxiety, deep depression, permanent physiological changes that can make transition much more difficult over the course of the adolescent’s life, and even suicide. And it does not matter that although some European and other countries’ health authorities have imposed limits on when and how gender-affirming medical care for minors can be prescribed, none has imposed a complete ban, in recognition that for some adolescents it’s the only effective treatment. Tennessee’s law, by contrast, flatly forbids the treatment, regardless of the decision of the family and their doctors, and regardless of the health risks of forgoing care.
Ryan, his parents, and two other families with transgender adolescents receiving puberty blockers and hormone treatment sued to challenge Tennessee’s law as a violation of their constitutional right to equal protection and as an impermissible intrusion on the rights of parents to make such consequential decisions with and for their children. (With the ACLU, Lambda Legal, and the law firm of Akin Gump, I am co-counsel for the transgender youth and their families.)
The trial court ruled in Ryan’s favor, but the US Court of Appeals for the Sixth Circuit reversed that ruling, and the case, United States v. Skrmetti (Jonathan Skrmetti is the Tennessee attorney general), is now before the Supreme Court, which will hear arguments on December 4. The Biden administration supports Ryan’s case, as it has since it intervened on the families’ side in the court of appeals. When President-elect Trump takes office, he may well withdraw the Justice Department’s brief, but the case is still likely to be decided, as the controversy will continue between the families and Tennessee.
The Supreme Court agreed to consider only whether the Tennessee law violates the Equal Protection Clause. It will be the first case to address the constitutional status of anti-transgender discrimination. And fittingly, the lawyer representing the families, the ACLU’s Chase Strangio, will be the first openly transgender lawyer to argue before the Court.
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The families and the Biden administration argue that the law discriminates on the basis of sex and therefore requires “heightened scrutiny.” Every court that has applied that skeptical review has invalidated similar bans, as did the trial court in this case. But the court of appeals ruled that the law does not discriminate on the basis of sex and therefore need only satisfy the kind of highly deferential “rational basis” review the courts apply to routine business regulations. So the critical question before the Supreme Court is whether the law constitutes sex discrimination in the first place and therefore must satisfy heightened judicial scrutiny.
The families maintain that it does because it treats minors differently based on their sex assigned at birth. By its express terms, the law prohibits only those medical treatments that allow minors to “identify with, or live as, a purported identity inconsistent with the minor’s sex” assigned at birth. Thus, patients designated male as newborns may not use puberty blockers or hormones to feminize their appearance or bodies. And patients designated female at birth are barred from using the treatment to become more masculine. By banning only treatments “inconsistent with” sex assigned at birth, the law imposes one rule (no masculinizing treatment) on those assigned female at birth, and another rule (no feminizing treatment) on those assigned male.
And these rules are classic sex-based stereotypes. Most of us identify with and live as the sex we were designated at birth. But more than a million Americans are transgender. The notion that one should identify with one’s sex designated when born is therefore a paradigmatic generalization—true for most, but false for others.
It was once common for sex-based laws in the United States to impose different rules on men and women based on notions about how the two sexes should act. Indeed, before the Supreme Court recognized that sex discrimination violates the Equal Protection Clause, it upheld laws barring women from entering professions deemed suitable only for men—including being a lawyer or bartender. But since the 1970s the Court has repeatedly ruled that laws that treat people differently based on sex are suspect and must be subjected to heightened scrutiny to ensure that they are justified by real differences between men and women, not premised on sex-based stereotypes—even if those stereotypes are true for most people.
For that reason, the Court barred Virginia from denying women admission to its Virginia Military Institute, even if its training was not fit for most women. As long as some women could benefit, they could not be excluded because “most women” would not. As the Court has explained, “overbroad generalizations…have a constraining impact, descriptive though they may be of the way many people still order their lives.” Heightened scrutiny is designed to flush out and invalidate laws based on such overbroad generalizations.
Tennessee contends, and the court of appeals agreed, that its law does not discriminate on the basis of sex but merely prohibits a particular use of medicine. By barring “gender transition” treatment, the state claims, its law treats equally persons identified as male or female at birth; none of them can use these drugs for gender transition purposes.
But when a law proscribes a particular use precisely because it departs from a sex-based stereotype, it is not sex neutral. A law banning the “use” of an education to pursue a career inconsistent with one’s sex assigned at birth—precluding men from being nurses and women from being doctors, for example—would obviously discriminate on the basis of sex. So too would a law banning the use of cosmetics or clothes to appear “inconsistent with” one’s sex assigned at birth. Like these hypothetical laws, Tennessee’s law compels conformity with stereotypes about how men and women should look and act.
Tennessee also cites the Supreme Court’s decisions in Dobbs v. Jackson Women’s Health Organization (2022) and Geduldig v. Aiello (1974), in which the Court reasoned that laws regulating abortion and pregnancy, respectively, did not constitute sex discrimination merely because they affect women. The laws might have a disparate impact on women, the Court acknowledged, but equal protection is violated only when a law expressly draws sex-based lines or when it is intended to harm particular groups based on sex.
Tennessee’s law, however, does not merely have a disparate effect on transgender people. It expressly draws a specific sex-based line, banning puberty blockers and hormone therapy only when used in a way “inconsistent with the minor’s sex.” And unlike the abortion ban, Tennessee’s law applies differently depending on the patient’s designated sex at birth: those designated male can use the medicine to masculinize their appearance, while those designated female cannot.
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How is the Court likely to rule? Just four years ago it declared in Bostock v. Clayton County (2020) that an employer who fires someone for being transgender engages in discrimination “because of sex,” which is forbidden by Title VII of the Civil Rights Act of 1964. (I argued the case for the ACLU.) There, too, the employer maintained that he was not treating men and women differently, because he would equally fire men and women who were transgender. But in the decision, written by Justice Neil Gorsuch, the Court concluded that discrimination on the basis of gender identity is necessarily sex discrimination: “By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.” Our client in that case, Aimee Stephens, a transgender woman, was fired for seeking to come to work dressed as a woman and using the name Aimee. Had she been designated female at birth, her employer would have had no objection to her dressing as a woman and being called Aimee. Accordingly, the Court reasoned, she was treated differently because of her sex.
The Equal Protection Clause uses different words than Title VII. It guarantees “equal protection of the laws,” while Title VII prohibits discrimination “because of…sex.” But the Court has long recognized sex discrimination as a constitutional denial of “equal protection.” A state employer who fired an employee because she was transgender would therefore violate both Title VII and the Equal Protection Clause. Bostock’s reasoning ultimately rested on the logic of discrimination. As a matter of logic, the Court reasoned, one cannot discriminate on the basis of gender identity without simultaneously discriminating because of sex. And the rules of logic do not operate differently under a statutory or constitutional provision.
Tennessee’s total ban cannot survive the heightened scrutiny that sex-based laws mandate. That standard requires the state to show that its sex classification is substantially related to an important government interest. Tennessee claims concern for the health of minors, undoubtedly an important interest. But its law is not carefully tailored to that end. It completely prohibits a treatment that the medical community considers necessary and appropriate for gender dysphoria, leaving adolescents who need it with no effective option.
Tennessee points to individuals who change their minds and regret the treatment, and notes that in some instances hormone therapy can lead to infertility. But among adolescents who have received the treatment, which is only prescribed for those who have persistent gender dysphoria and undergo extensive consultation, the number of “detransitioners” is exceedingly small. Studies cited in the case found that about one percent of people who receive gender-affirming treatment experienced regret. Even if the number were higher, it would not justify a wholesale ban for all. And regret and health risks are not unique to gender-affirming care, but this is the only treatment that Tennessee forbids for these reasons. Indeed, studies show far higher rates of regret and risk of infertility for intersex minors who receive this treatment to conform to their sex designated at birth, but Tennessee allows that treatment.
In rejecting Ryan’s claim, the court of appeals stressed that gender dysphoria and its treatment are matters of medical uncertainty and health policy, and it concluded that such policy decisions should be left to the states, not decided by courts. It’s true that as a general matter, the states have wide latitude in regulating medicine. But not when they draw lines based on sex in doing so. States also have wide latitude in regulating the practice of law, but a statute that barred women from practicing law because the state deemed it “inconsistent with their sex” would indisputably violate equal protection.
Precisely because we have for so long unreflectively accepted and mandated adherence to sex-role stereotypes, the Constitution demands that when the government treats men and women differently, its justifications must be carefully scrutinized to ensure that the law does not reflect sex-based stereotypes. But here, not much sleuthing is necessary. Tennessee’s law expressly announces that its purpose is to “encourage minors to appreciate their sex.” A law that tells people they cannot obtain treatment to live in a way “inconsistent” with how they were identified as newborns is nothing more than a rule requiring conformity to a stereotype. Tennessee’s legislature may view it as the “natural” order of things, just as did legislatures that barred women from practicing law a century ago. But the Constitution’s guarantee of equal protection means that the state cannot impose that stereotype by law on families like Ryan’s.
