The Supreme Court Upheld Health Care Bans for Trans Youth. Amy Coney Barrett Wanted to Go Further.

On Wednesday, the Supreme Court delivered a brutal blow to transgender equality, upholding a Tennessee law that outlaws gender-affirming care for trans youth. Its decision in U.S. v. Skrmetti effectively greenlit similar bans that nearly half of the states have already enacted, cutting off access to treatment for thousands of minors across the country. As expected, the conservative supermajority hung together to justify these bans on the basis of dubious logic and contested factual claims, with Chief Justice John Roberts writing for the majority, and all three liberals dissenting. Yet there was friction even within the conservative bloc, with at least three Republican-appointed justices agitating to go even further in order to rubber-stamp future discrimination against transgender Americans.

Dahlia Lithwick and Mark Joseph Stern discussed the court’s decision in Skrmetti on a special Opinionpalooza pop-up episode of Amicus for Slate Plus members. A preview of their conversation, below, has been edited for length and clarity.

Dahlia Lithwick: Can you sketch out for us what Chief Justice Roberts wrote for the majority? How did he get us to the place where this law was reviewed using the lowest level of constitutional scrutiny?

Mark Joseph Stern: It’s a good question, because it sure sounds like Tennessee and all these other states are targeting people on the basis of sex and transgender status, which should trigger heightened scrutiny under the equal protection clause. A child assigned male at birth who identifies as male can receive puberty blockers and testosterone, but a child assigned female at birth who identifies as male cannot. And the Tennessee legislature itself said that one of its key goals was to encourage minors to “appreciate” the sex they were assigned at birth. How is that not obviously discriminatory?

Roberts sidesteps the sex discrimination problem with some big-time sophistry. He claims the law doesn’t discriminate based on sex, but on two separate grounds. First, the law applies only to minors, so it’s age-based. Second, it restricts specific treatments—puberty blockers and hormones—based on their “medical use,” the treatment of gender dysphoria. So in Roberts’ view the law isn’t targeting anyone because of their sex, but simply regulating “experimental” treatments for children. And under Supreme Court precedent, classifications based on age and medical use trigger only rational basis review, the most deferential standard.

Remarkably, Roberts also says that Tennessee’s law does not discriminate on the basis of transgender status. He claims these laws are just regulating a particular kind of medical treatment rather than targeting trans children. Whether a child was assigned male or female at birth, he writes, they cannot receive puberty blockers or cross-sex hormones for gender dysphoria, so they do not face discrimination because they’re transgender. To reach that conclusion, of course, he has to close his eyes to the fact that the whole point of this law is to prevent transgender children from transitioning by forcing them to remain locked into their sex assigned at birth.

I want to talk about the concurrences, because there’s 118 pages of opinions here, and there was a lot of flag-planting. Let’s start with the concurrence by Justice Amy Coney Barrett, who has been hailed in the press as a centrist moderate, or maybe a conservative with a heart of gold. We’ve been hearing an awful lot about her as a deeply principled person who is slowly drifting leftward. Can we maybe stick a fork in that after her concurrence today?

Yes, please. This is a really atrocious concurrence. It’s totally gratuitous, and I struggle to understand why she wrote it except to further prevent transgender people in this country from ever winning in a court. Remember, Roberts’ majority opinion says that Tennessee’s law doesn’t discriminate on the basis of transgender status. So he didn’t decide whether or not, as a general rule, discrimination on the basis of transgender status triggers heightened scrutiny under the equal protection clause. But Barrett, in her concurrence, says that even if a law does clearly and undeniably discriminate on the basis of transgender status, then it still wouldn’t trigger heightened scrutiny, because discrimination against transgender people isn’t inherently suspect.

The Supreme Court has said that laws targeting certain “discrete and insular minorities” who lack political power are inherently suspect. So discrimination on the basis of those traits—namely, race, sex, religion, and national origin—need to be subjected to heightened scrutiny and are likely unconstitutional. But Barrett says transgender status should not be one of those traits. Why? First, she says transgender people aren’t a “discrete” group, because their identity is too complicated, and it’s too difficult for courts to pin down what “transgender” even means. It’s not like being Black, or being a woman. Second, Barrett argues that there has not been a history of state-backed discrimination against transgender people. And that means they are not a historically persecuted group that lacks political power. She concludes that because transgender people have had their existence denied for most of American history, there’s not a sufficient record of discrimination against them in the law to make them a “suspect class.”

Justice Sonia Sotomayor takes on Barrett’s argument directly in her dissent. How does she counter it?

Sotomayor destroys Barrett’s claim. First, she points out that there actually is a deep record of anti-trans discrimination, citing long-standing laws that forced people to live in the sex they were assigned at birth. They didn’t use the word transgender because that word didn’t exist then. But statutes forced people to live in the sex they were assigned at birth by, for instance, barring them from dressing as the opposite sex. These laws were enacted and enforced throughout much of American history, and Sotomayor accuses Barrett of minimizing or disregarding them.

Then Sotomayor says that anyone in search of evidence that transgender people face immense discrimination by the government need only look at what Donald Trump is doing in the present moment. He has signed a ton of executive orders discriminating against transgender Americans in all walks of life. Purging them from the military, for instance—which the Supreme Court has just allowed—and attempting to defund institutions and providers that serve them. If that’s not proof of extreme bias against transgender people backed by the U.S. government, I don’t really know what is.

We’re coming off a couple weeks of unanimous or near-unanimous decisions. It was becoming a bit of a vibe that if you wanted to see angry 6–3 splits or polemical writing, you had to look to the shadow docket. And yet Skrmetti proves that some of the justices really want to let their ideological freak flags fly. So can you enlighten us as to the great wisdom Justices Clarence Thomas and Samuel Alito share in their own concurrences?

Alito, like Barrett, says that discrimination on the basis of transgender status is not suspect under the equal protection clause. He basically just says it in a way that’s even crueler and more callous than what Barrett says. Thomas joined Barrett’s concurrence, but he also wrote separately to say that there should be almost no judicial scrutiny of these kinds of laws at all. And he floats the idea that laws that openly discriminate on the basis of sex should probably be rubber-stamped as well under the “original meaning” of the equal protection clause.

In some ways, then, this was a 3–3–3 decision.

At a minimum, I think these concurrences show that there is a split within the majority. It’s a 6–3 decision on the bottom-line conclusion. But Roberts’ majority opinion doesn’t say whether a law that discriminated more explicitly on the basis of transgender status should be subjected to heightened scrutiny. It doesn’t say whether transgender people are a “suspect class.” It doesn’t say whether anti-trans laws that do classify people on the basis of sex—think bathroom bans and sports restrictions—are likely unconstitutional under the equal protection clause. Roberts uses sophistry to avoid answering those bigger questions. His decision isn’t narrow, but it is cabined to the idea that this is just a regulation of medicine based on age, so the court doesn’t have to deal with the bigger issues. Alito, Barrett, and Thomas all would have gone further; they would have basically said that it’s totally OK for the government to discriminate against trans people.

What I sense from these concurrences is that there actually was a little bit of a wrestling match behind the scenes at the court. The six conservatives immediately knew they would uphold Tennessee’s law, but they weren’t quite sure how they were going to do it. Roberts assigned this opinion to himself in order to write a decision that was arguably relatively narrow in logic, that left these other questions for another day. But at least three justices wanted to say, clearly, that the Constitution does not protect transgender people from overt, invidious discrimination. They didn’t win today. But they may win in the next case.

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