In their dissent in Dobbs v. Jackson Women’s Health Organization, Justices Breyer, Sotomayor, and Kagan observed that the Constitution “puts some issues off limits to majority rule.” Everyone agrees with that. The argument comes over which issues are part of the “some” that are off limits to majority rule and which are subject to majority rule. The Court determines, as a practical matter, where the Constitution draws the line between policies that popular and legislative majorities can constitutionally enact and policies that those majorities cannot enact.
United States v. Skrmetti, the recent case in which the Supreme Court held that a Tennessee law restricting sex transition treatments for minors did not violate the Fourteenth Amendment’s Equal Protection Clause, is the most recent entry in the necessarily iterative process of deciding just where those lines are drawn.
The central legal dispute between the justices in Skrmetti may sound dauntingly technical to the layperson. It concerns the level of scrutiny that lower courts (and the Supreme Court) should apply to review the Tennessee law. “The only question this Court must decide,” Justice Sotomayor wrote in her dissent, “is whether the Constitution required” lower courts to apply “intermediate scrutiny” when reviewing Tennessee’s law.
At stake in what may seem to be formalistic legalities, however, is the matter of whether the great contentious questions of our day will be decided by state legislatures and democratic institutions, or by lawyers and judges. Insofar as courts contrive new categories for heightened scrutiny, they take more and more substantive questions of policy debate out of the hands of the people and their representatives. While today we commonly pit individual liberty against majority rule, for much of US history, collective self-government was understood to be a crucial element of what it meant to be free.
To understand the Skrmetti arguments, we need first to take a step back to view the larger jurisprudential canvas on which the justices are painting.
The Court’s Equal Protection Framework
As a baseline matter, states have “police powers” under which they legislate to advance the health, welfare, safety, and morality of the people. The trick, of course, is that these powers actually be used to advance the general welfare rather than to allow majorities (or minorities) to advance their own interests by oppressing others. Both the national and state constitutions place limits on state government action, seeking to channel state laws to advance the common good. Among these are the Fourteenth Amendment’s requirements, including the Equal Protection Clause.
The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” While the Clause at first reads as a duty for states affirmatively to protect people equally—a reading that Justice Thomas has recently begun to float in concurring opinions, including in Skrmetti—the traditional interpretation of the Clause requires that laws have reasons for the way they classify individuals and treat them differently.
The inquiry into whether a statutory classification is consistent with the requirements of the Equal Protection Clause examines the match between the trait that the law regulates and the mischief the law seeks to remedy.
All state-level legal classifications must pass constitutional muster under the Equal Protection Clause. But judges apply different levels of scrutiny depending on whether the challenged law triggers application of a heightened standard of review.
Given how determinative the level of review can be for the outcome of a case, the main bone of contention between the majority and dissent in Skrmetti circles around whether the classification used by the Tennessee law triggers some level of heightened review.
The Court currently applies three basic levels of scrutiny in its Equal Protection jurisprudence. The lowest level of scrutiny, which is the easiest level for a law to survive, is termed “rationality review.” The highest level of review, which is the hardest level for a law to survive, is termed “strict scrutiny.” Skrmetti hinged on the less-well-defined middle level of “intermediate scrutiny.”
Laws can trigger heightened review by touching on rights the Court has identified as fundamental, by regulating ordinary democratic political processes, or by evincing prejudice against “discrete and insular minorities” such as race, religion, or nationality. Classifications based on sex, however, receive intermediate review, because some but not all classifications based on sex reflect invidious gender-based prejudice.
For both forms of heightened review—intermediate scrutiny as well as strict scrutiny—the government bears the affirmative burden of proving that the law serves a real purpose and that the means the statute employs will achieve the actual legislative purpose.
In arguing that the operative category is “medical treatment,” rather than transgender identity, Roberts avoided the more contentious questions of whether the latter category might trigger heightened scrutiny in other contexts.
Under rationality review, the law enjoys the presumption of constitutionality, and those attacking the law must demonstrate that there is no conceivably legitimate or rational basis for the law. Under heightened review, the law is presumed unconstitutional, and the government bears the burden of providing proof that the law serves an important or compelling governmental purpose and that the law will actually achieve that purpose or is necessary to achieve that purpose.
Winning the argument over which level of review judges should apply when reviewing a law often will determine which side wins the case. As Justice Brennan pointed out in a 1958 decision, “In all kinds of litigation it is plain that where the burden of proof lies may be decisive of the outcome.”
Indeed, the highest and lowest levels of scrutiny imply almost pro forma judicial outcomes. As the late Gerald Gunther’s snide rule-of-thumb put it, rationality review is deferential in theory and non-existent in fact, and strict scrutiny is strict in theory but fatal in fact.
Applying the Court’s Equal Protection Jurisprudence to Skrmetti
The plaintiffs in Skrmetti argued two independent reasons the Tennessee law should receive heightened scrutiny from judges. First, they argued that the Tennessee law classifies on the basis of sex and should, therefore, receive intermediate scrutiny. Secondly, they argued that the law classified on the basis of transgender status, and laws that classify using transgender status should be added to the type of laws that receive some form of heightened review.
The Court rejected both of the plaintiff’s arguments and subsequently upheld the Tennessee law after applying the deferential rationality standard.
Before rehearsing the Court’s arguments rejecting any form of heightened review and therefore applying the rationality standard to review Tennessee’s law, it bears noting that it’s not entirely obvious that the Tennessee law would have failed to be held constitutional if intermediate review had been applied. Indeed, Justice Sotomayor suggests that possibility in her dissent (a point Justice Kagan refused to join). More pointedly, Tennessee argued the physical effects of gender transitions for minors are certain; it is the benefits of the procedures to minors that are uncertain. As a result, the legislation would be justified even under intermediate scrutiny.
Nonetheless, if heightened review applied, Tennessee would have to provide what the Court has termed an “exceedingly persuasive justification” for the law’s classification. And this is more difficult for states to meet than the rationality standard. As a result, the plaintiffs argued that Tennessee’s law discriminated on the basis of sex, and therefore merited at least intermediate review. They argued that the law “creates facial sex-based classifications by defining the prohibited medical care based on the patient’s sex.”
The Court rejected the plaintiff’s argument, holding that the Tennessee law classified only on “the basis of age” and on “the basis of medical use,” as opposed to the perceived “category” of persons who would be seeking that medical treatment. Neither of these classifications triggers heightened review by courts.
The plaintiffs undoubtedly held at least a reasonable hope that the Court would agree that the Tennessee law classified on the basis of sex, given the outcome of the Bostock case in 2020. With votes including those of Chief Justice Roberts and Justice Gorsuch (who wrote the opinion in Bostock), the Court held that the prohibition of employment discrimination on the basis of sex in Title VII of the 1964 Civil Rights Act applied to discrimination based on sexual orientation and gender identity. The Court controversially concluded that employers fired the plaintiffs in those cases for engaging in behavior that the employers would have accepted had a member of the opposite sex engaged in the same behavior. In other words, if one “substituted” a person of the opposite sex in the circumstances, their treatment would have been different.
The Skrmetti Court responded in two ways to the claim that the Tennessee law discriminated on the basis of sex. First, the Court argued that the substitution test from Bostock simply did not apply to the Tennessee law. Rather, the law classified on the basis of medical usage rather than on the basis of sex:
The plaintiffs and the dissent … contort the meaning of the term “medical treatment.” … For the term “medical treatment” to make sense, … it must necessarily encompass both a given drug and the specific indication for which it is being administered. …
When, for example, a transgender boy (whose biological sex is female) takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty. … The [Tennessee] prohibition does not turn on sex.
Roberts and Gorsuch, both of whom joined the majority opinion in Bostock, rejected the claim that an analogous argument applied to application of the Fourteenth Amendment to the Tennessee law in Skrmetti.
The plaintiffs further argued in the alternative that the Tennessee law discriminated against transgender people and that the Court should expand heightened judicial review to legal classifications relating to transgender individuals.
For the same reasons as he concluded that the Tennessee law did not classify on the basis of sex, Roberts’ opinion for the Court denied that the Tennessee law classified on the basis of transgendered identity: the law classified by age and by medical treatment, Roberts insisted. In arguing that the operative category is “medical treatment,” rather than transgender identity, Roberts avoided the more contentious questions of whether the latter category might trigger heightened scrutiny in other contexts. It also continues the Court’s decided reticence to add to the set of constitutionally protected classes that receive heightened review.
Neither Justice Alito nor Justice Barrett were entirely satisfied by Roberts’ more limited argument. As a result, both wrote concurring opinions arguing that transgender individuals did not meet the requirements of being a “discrete and insular” minority group sufficient to merit heightened review under current law. Transgender activists, after all, emphasize gender “fluidity,” and the reality of detransitioners challenges the idea that transgender status is an immutable characteristic. And it is hard to argue that transgender individuals are politically powerless, another characteristic traditionally used to identify suspect classifications.
Because the Tennessee law did not trigger heightened judicial scrutiny, the Court applied rationality review to the law with the almost inevitable implication that the majority upheld the state’s law.
Outside of the nod at the possibility that the Tennessee statute might survive intermediate scrutiny, Sotomayor’s dissent is a mirror image of the majority’s arguments. Sotomayor writes:
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.
Sotomayor devotes much of her dissenting opinion to arguing that the Tennessee law classifies on the basis of transgender identity, and that the class of transgender individuals should be included as a discrete and insular minority group.
It is easy to get lost in the levels-of-scrutiny weeds. Beneath them, however, is the perennial and inescapable issue of where the Court draws the line between questions subject to majoritarian resolution and questions immunized from majoritarian resolution. It is clear that the current Court is refusing to extend the line further, if not moving the line back in the direction of deferring more to democratic decision-making relative to earlier Courts.
Nonetheless, it is important to emphasize that, contrary to some of the overheated criticism regarding the jurisprudential trend of the current Court, it is merely adjusting where the line is drawn that “puts some issues off limits to majority rule,” it is not remotely close to erasing the line. Skrmetti represents only an incremental adjustment in the continuing and inescapable process of judicial line drawing between collective self-government and individual rights in America.
