Retreating

To give meaning to our Constitution's bedrock equal protection guarantee, this Court has long subjected to heightened judicial scrutiny any law that treats people differently based on sex.  If a State seeks to differentiate on that basis, it must show that the sex classification "serves important governmental objectives and that the discriminatory means employed are substantially related to the achievement of those objectives."  Such review (known as intermediate scrutiny) allows courts to ascertain whether the State has a sound, evidence-based reason to distinguish on the basis of sex or whether it does so in reliance on impermissible stereotypes about the sexes.

Today, the Court considers a Tennessee law that categorically prohibits doctors from prescribing certain medications to adolescents if (and only if) they will help a patient "identify with, or live as, a purported identity inconsistent with the minor's sex."  In addition to discriminating against transgender adolescents, who by definition "identify with" an identity "inconsistent" with their sex, that law conditions the availability of medications on a patient's sex.  Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.

Tennessee's law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny.  The majority contorts logic and precedent to say otherwise, inexplicably declaring it must uphold Tennessee's categorical ban on lifesaving medical treatment so long as " ‘any reasonably conceivable state of facts' " might justify it.  Thus, the majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review.  By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims.  In sadness, I dissent.

-- Justice Sotomayor, with whom Justice Kagan and Justice Jackson join, dissenting in US v Skrmetti, Attorney General for Tennessee, in which the majority upheld a Tennessee law denying gender-affirming care to minors (18 June 2025)