As everyone knows, I normally don’t blog more than once a week but there are exceptions. I had a bit of time this morning and this is a very short blog entry, so I decided to do a blog entry more than once this week. I am not at all sure about my schedule for next week, so it is possible my blog for next week may appear at any time during the week or even not at all.
The blog entry of the day is United States v. Skrmetti, here, decided by the United States Supreme Court on June 18, 2025. In a 6-3 decision, the Supreme Court held that Tennessee was justified as a matter of constitutional law in banning puberty blockers for minors as a treatment for gender dysphoria. The blog entry is divided into the categories of: 1) the opinions; and 2) ADA implications and thoughts/takeaways. It is probably my shortest blog entry ever, so the reader will probably want to read the whole thing.
I
The Opinions
- The opinion for the Court was written by Chief Justice Roberts. His view is that the Tennessee laws banning puberty blockers do not classify on the basis of transgender status. Therefore, the rational basis equal protection classification applies. As a result, the Tennessee laws are constitutional.
- Justice Thomas concurred. His view is where the medical evidence is so contradictory, rational basis review is the way to go. A big part of this opinion and the other non-dissenting opinions, is that other countries, such as the United Kingdom and some Scandinavian countries, have taken a very different view from medical professionals in the United States when it comes to puberty blockers.
- Justice Barrett also concurred and was joined by Justice Thomas. Her view is that people who are transgender are subject to rational basis review when it comes to equal protection jurisprudence because gender identity is not a trait definitively ascertainable at moment of birth. Also, the onset of gender identity disorder varies and some individuals go back and forth as well as some return to the gender of their birth for their identity. Finally, gender identity does not involve a discrete group defined by an easily ascertainable characteristic that is fixed and consistent across the group.
- Justice Alito also concurred and said that the Tennessee laws classify on the basis of transgender status and not sex. Also, transgender status is subject to rational basis scrutiny. Finally, Bostock, which we discussed here, is not applicable to equal protection jurisprudence.
- Justice Sotomayor joined by Justice Jackson and Justice Kagan said that trans discrimination is sex discrimination, and therefore is subject to heightened scrutiny.
- Justice Kagan said that transgender discrimination is subject to heightened scrutiny. However, the case should be remanded to the lower courts for fact-finding to determine whether the heightened scrutiny standard was met.
II
ADA Implications and Thoughts/Takeaways
- We do know that the trans community has the ability to proceed under Title VII thanks to Bostock, which we discussed here.
- Justice Gorsuch, the author of Bostock, did not offer a separate opinion of any kind in this case.
- A majority of the Supreme Court clearly believe that transgender individuals are in the lowest equal protection class. That means as a practical matter, the government is free to take almost any action that may be adverse to members of the transgender community.
- I expect the trans community going forward to go all in on the ADA when it comes to combating discriminatory actions against members of that community.
- There is language in the non-dissenting opinions that could be read to suggest that the Supreme Court would uphold the exception in the ADA for gender identity disorders not being covered unless a physical impairment is involved (42 U.S.C. §12211(b)(1)). It is reasonable to expect lots of litigation in the future over this.
- Many cases, such as here, are now saying that gender identity disorder exclusion in the ADA is not the same thing as gender dysphoria, but the cases are not unanimous on that. It will be interesting to follow going forward just how this decision impacts the issue of whether gender identity disorder and gender dysphoria are the same for purposes of the ADA exclusion.
- For those focusing on the ADA as part of their practice, I would expect this decision to mean a lot more business.