In United States v. Skrmetti the Supreme Court will consider whether Tennessee’s broad prohibitions on gender-affirming care for minors violates the Equal Protection Clause. Tennessee’s statute prohibits providers from administering “a medical procedure” to “[e]nabl[e] a minor to identify with…a purported identity inconsistent with the minor’s sex” or “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” These prohibited procedures include “[s]urgically removing, modifying, altering, or entering into tissues, cavities, or organs” and “[p]rescribing, administering, or dispensing any puberty blocker or hormone.”
Notably, the law provides exceptions for children who need these treatments for conditions not related to gender dysphoria. The Tennessee law “permits the use of puberty blockers and hormones to treat congenital conditions, precocious puberty, disease, or physical injury.”
As the petitioners observed in their Sixth Circuit brief, these exceptions condition “the provision of medical care on whether or not a minor seeks to conform to their sex designated at birth.” This, they argue, based on biding Supreme Court precedent, is sex discrimination.
Apart from alluding to intersex children, the brief does not detail how these exceptions operate. (Indeed, none of the appellate briefs appear to do so, though, as I note below, some of the district court papers make the point). A brief filed in the Supreme Court on behalf of Gender Affirming Care Experts makes this point in detail. (Full disclosure, I was Counsel of Record on the brief.)
The brief describes a range of conditions that implicate so-called “secondary sex characteristics.” Roughly speaking, these characteristics are physical characteristics that have traditionally been understood to be differentiated based on sex, but that are not directly involved in reproduction. They include breast tissue characteristics, distribution of fat across the body, especially on the hips, voice pitch, hair growth (body and scalp), and menstruation. Many of these characteristics present in a variety of ways. For some children, the presentation deviates sufficiently from the norm, such that they are understood to have a diagnosable condition — such as excess breast tissue among children who identify as boys and excess body hair among children who identify as girls. Notably, this means that children whose identity conforms to the sex assigned at birth can have psychological distress because of the presentation of sexual characteristics in ways that do not conform to their self-understanding.
What is more, many of the medications and procedures developed for children with gender dysphoria were first developed for analogous conditions among cisgender children. And while dosages and details are different when it comes to gender dysphoria, dosages and details also change depending on the diagnosis, patient, and context. Zeroing in only on the differences that apply to gender dysphoria is discriminatory.
We thus explain:
cisgender minors are similarly situated to transgender minors. The bodies of cisgender minors with conditions described in this brief do not conform to their internal sense of gender; so too for transgender minors. For some cisgender minors, this creates psychological distress; again, the same is true for some transgender minors. Some cisgender minors seek medication to allow their bodies to conform to their internal sense of gender; and, once more, some transgender minors do the same.
But the problem is that SB1 does not treat children with gender dysphoria the same as it treats children with analogous diagnoses. The exception in Tennessee’s SB1 results in the creation of two separate classes of care for minors, which depend completely on the minor’s sex assigned at birth. For example, many minors might seek to be medicated to avoid breast tissue from building up. Whether they’re allowed to do so depends completely on their sex assigned at birth: if they were assigned male at birth, they can get the medication. If they are assigned female at birth, they cannot.
Thus, SB1 has no effect on most children seeking gender affirming care. Cisgender children can keep on seeking and receiving care to bring their bodies into line with their self-image. But the statute targets an unpopular, politically vulnerable group that seeks to do the same: transgender children with gender dysphoria. This is precisely the kind of state action that the Equal Protection Clause was designed to prohibit. By targeting children based on their sex assigned at birth, the statute engages in sex discrimination, and should be held unconstitutional.
Craig Konnoth is Martha Lubin Karsh and Bruce A. Karsh Bicentennial Professor of Law at University of Virginia School of Law.
