America’s latest civil rights movement – seeking legal protection for transgender people – suffered a historic and sweeping defeat in the Supreme Court Wednesday, leaving hundreds of thousands of individuals newly exposed to discrimination. The six-Justice majority allowed such individuals only the most minimal legal means to fight for rights.
Transgender people, the Court declared in a ruling written by Chief Justice John G. Roberts, Jr., do not share the same constitutional promises of equality as do racial minorities or even the same, somewhat reduced guarantee of equality for women, and the even more uncertain equality for gays and lesbians. A law that singles out transgender people, the majority said, will withstand any challenge as long as it can be explained by any “rational” argument. That test can be passed by almost any law that is not based on blatant discrimination, nothing more than open, intentional hostility to a specific class of people.
The ruling was so broad that it probably means that, as long as a majority like the current one dominates the Court, there is little or no chance that the Constitution will be interpreted to protect new groups of people who face discrimination: the aged, the mentally and physically disabled, and the poor. Any protection those groups can gain would have to be by the grace of legislatures, state and federal, not the courts.
The Supreme Court has not extended a specific guarantee of constitutional equality to any new group in America in 54 years, not since it began doing so in a 1971 decision creating a “middle-level” form of legal equality for women. It has not yet done even that, for example, for gay and lesbian people, although they have won significant constitutional gains from the Court, like the right to marry and a right to sexual privacy.
In Wednesday’s decision, which was as clear a constitutional defeat for transgender people as the Court’s 2024 decision against abortion rights was for women, the Court repeated the argument that the nation’s estimated 1.6 million transgender individuals should look to legislatures, not the Constitution, for improving their legal status in society. That has not worked well for a woman’s right to abortion, however.
The ruling appeared to have largely shut down a developing trend in lower courts to treat transgender individuals as part of a constitutionally protected class. So far, two federal appeals courts have reached that result, as have six federal trial courts. The case before the Court Wednesday, testing a Tennessee law limiting medical treatment for transgender youth, involved a federal appeals court that had rejected a plea for protection.
The case of United States v. Skrmetti put before the Court, for the first time in history, the question of whether the Constitution provides safeguards for transgender people from discrimination based on their gender identity. A transgender person is one who is born male or female but who, over their youth or early adult years, transitions to the opposite gender. For some, the transition becomes a medical disorder, which doctors call “gender dysphoria.”
The specific Tennessee law at stake barred doctors from prescribing puberty blockers or hormones to any minor, if the purpose was to enable a minor to live with an identity different from theirs at birth, or to treat a minor’s discomfort or distress from having to live out life with the sex assigned at birth. Challenged as unconstitutional by three transgender minors and their parents and a doctor, the law was partly blocked by a federal trial judge, but then upheld by a federal appeals court.
The Biden Administration’s Justice Department, siding with the challengers, appealed the case to the Supreme Court, arguing that the law singled out a class of people – transgender youth – for discrimination based on their sex, and thus violated the 14th Amendment’s guarantee of equality. After the Trump Administration entered office, it told the Court that its position was that the Tennessee law was valid.
Chief Justice Roberts wrote a 24-page opinion for the majority. It was joined in full by Justices Amy Coney Barrett, Neil M. Gorsuch, Brett M. Kavanaugh and Clarence Thomas and joined in part by Justice Samuel A. Alito, Jr. The key to Roberts’ opinion was that the state law was not based on sex or on transgender status, but on patients’ age and on medical judgment – neither of which is a category entitled to constitutional protection.
One of the other arguments made by the challengers that Roberts rejected was that the Tennessee law conflicted with the Supreme Court’s decision five years ago in the case of Bostock v. Clayton County, in which the Court had ruled that transgender workers are protected by federal civil rights law from discrimination in the workplace based on their gender identity, because that was based on sex. Roberts turned that aside because of his conclusion that the Tennessee law was not based on sex.
Justice Thomas wrote a separate opinion for himself, repeating his earlier argument that the Bostock decision was wrong and an earlier argument that he was not sure that the 14th Amendment even applied to state laws drawing distinctions between classes of people. Justice Barrett wrote a separate opinion that Thomas joined, and Justice Alito wrote a separate opinion for himself. Those three Justices would have gone even further than Roberts had, to declare that the Constitution not only does not protect transgender people as a class, but also does not protect them individually because they are transgender – that is, their individual status.
Justice Sonia Sotomayor harshly condemned the ruling in her 31-page dissenting opinion, accusing the majority of “doing irreparable damage to the Equal Protection Clause (of the 14th Amendment)” and of inviting “legislatures to engage in discrimination by hiding blatant discrimination in plain sight” that would cause “untold harm to transgender children and the parents and families who love them.”
Justice Ketanji Brown Jackson joined the Sotomayor opinion and did not write for herself. Justice Elena Kagan joined most of the Sotomayor dissent, but chose not to support the part of it in which her colleague had declared that the Tennessee law could not pass the constitutional test of equality that should have been applied to it Kagan did say that she shared the Sotomayor view that the Constitution does give transgender people specific protection against bias.
The 118 pages of writing by the Justices revealed that the Court, in the six months of private deliberations since they held a hearing in December, had been engaged probably as never before with the issue of just what sex discrimination means under the Constitution.
Civil rights and transgender rights advocacy groups voiced deep discontent with the ruling, but did make an effort to argue that Roberts opinion’ might have left some space for challengers to continue fighting in the courts against discrimination.
The notion of transgender identity, as a scientific or medical theory, goes back to the work of a German scientist, Magnus Hirschfeld, in the early 20th Century. He contended that “transvestites,” as he called them, had distinctive sex characteristics and erotic desires that society should recognize. In 1931, he arranged for the first male-to-female genital transformation for a person named Dora Richter.
Although the transgender phenomenon was largely ignored by the general public, here and abroad, it emerged in a burst of publicity in 1952 with the sexual reassignment surgery of Christine Jorgensen in Copenhagen. Jorgensen became a celebrity, the man who had become, in headlines, the “Blond Bombshell.”
After a period in America of police harassment of transgender people, as happened, too, to gays and lesbians, a movement to establish legal rights began developing in the 1950s, and spread significantly in the 1960s and 1970s. Medical science began paying greater attention, ultimately developing the ailment of gender “dysphoria” and creating treatment regimens for that and also for what doctors called “gender identity” and “gender incongruence” syndromes.
In Chief Justice Roberts’ opinion Wednesday, he reviewed some of the medical literature, but focused mostly on what he referred to as developing concerns over the long-term effect of treatments for transgender ailments. He used those studies to make the point that the problems vary greatly between individuals, and the identity of being transgender does not occur at birth, but develops later, suggesting that transgender is not a class phenomenon of the kind for which constitutional guarantees of equality are provided.
