The Supreme Court ruling in the Skrmetti case should have taken sex discrimination into account: 5 things to know

On June 18, 2025, the US Supreme Court issued its decision in United States v. Skrmetti, upholding Tennessee’s ban on gender-affirming care for minors. The Court held that Tennessee’s law does not rely on a sex-based classification and therefore does not warrant heightened judicial scrutiny under the Equal Protection Clause of the US Constitution. The decision sidestepped the central role sex plays in the Tennessee law, effectively signaling that states may target gender-affirming care for transgender youth without triggering the constitutional protections typically afforded in such cases. 

The Court accepted Tennessee’s claim that the law at issue merely regulates “based on age” and “medical use,” not on sex or transgender status. But this framing misrepresents how the law functions in practice: access to treatment is determined entirely by a patient’s sex assigned at birth. It’s not the treatment itself that is restricted, but who is seeking it and for what purpose. 

This decision is a concerning narrowing of equal protection doctrine and a departure from the US’ obligations under international human rights law, including under the International Covenant on Civil and Political Rights (ICCPR). According to the UN Human Rights Committee, in charge of monitoring implementation of the ICCPR, States are obligated under the ICCPR to ensure that LGBTQ+ people are entitled to equal protection of and equality under the law, which includes access to gender-affirming care. 

By failing to recognize how laws like Tennessee’s operate on the basis of gender identity and sex, the Court has opened the door to further restrictions on gender-affirming care, potential reshaping of how discrimination is defined and applied under the law, and noncompliance with global human rights standards designed to guard against unequal treatment.

Banning gender affirming care violates international human rights law

According to the American Civil Liberties Union, 25 US states, including Tennessee, have enacted bans on gender-affirming care for transgender youth, including hormone therapy and puberty-suppressant medications, impacting more than 100,000 transgender minors. These bans still allow youth to access similar medical treatments for medical conditions other than gender dysphoria. A proposed federal bill would extend such restrictions nationwide. 

These bans violate international human rights law and standards and contradict the overwhelming medical consensus that gender-affirming care is often life-saving. The UN Independent Expert on Sexual Orientation and Gender Identity (UN SOGI) has made clear that denying access to gender-affirming care amounts to discrimination and violates the right to the highest attainable standard of health. 

In upholding Tennessee’s law, which explicitly states that its purpose is to “encourage minors to appreciate their sex” – a value-laden judgement about identity rather than medical care – the Court has validated discriminatory practices, infringed on the rights of transgender youth, and fallen short of its obligations under international human rights law.

SB1 denies care explicitly on the basis of sex assigned at birth 

Tennessee’s statute, SB1, prohibits medical treatments that “enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” It delineates between treatments that affirm a child’s sex assigned at birth and those that do not. The law allows physicians to, for example, prescribe testosterone to a cisgender boy experiencing delayed puberty, but not to a transgender boy experiencing gender dysphoria.

In other words, the statute permits the same medications when used to affirm sex assigned at birth, but prohibits them when used to support a gender identity inconsistent with it. In effect, the law functions precisely as a result of a sex-based determination, even if disguised under medical terminology.

The determining factor is not the treatment itself, but whether it aligns with the sex assigned at birth of the person seeking it.

Yet, in Skrmetti, the Court declines to call this delineation sex-based. It instead accepts the state’s assertion that the law is concerned with the purpose of the treatment, not who is receiving it. But when the treatment’s permissibility depends on the patient’s sex, that is a sex-based regulation. And, under longstanding equal protection doctrine, such laws ought to be afforded heightened judicial scrutiny, an approach that the Equal Rights Amendment (ERA), when fully recognized, would strengthen by requiring judicial actors to assess cases under the highest level of judicial scrutiny.

The Court’s “medical purpose” rationale masks reality: the law defines treatment eligibility by sex

The Court characterizes SB1 as regulating a class of medical interventions, not the identity of the patient. Yet the “medical purpose” that triggers the ban can only be determined by looking at the patient’s sex and gender identity. In reality, this determination, framed as a regulation of procedures, is a regulation of who may access those procedures, and that access is based on sex. 

Equal protection law has long recognized that even laws written or framed in neutral terms may still have discriminatory effects, under disparate impact analysis. In this case, the law permits or denies treatment not based on medical risk, efficacy, or clinical guidance, but on whether treatment coincides with ideological views about sex and gender identity.

A more rigorous equal protection analysis, which should apply to sex-based classifications, would have required the Court to examine whether the state’s reasoning truly justifies restricting access to care. In the absence of a clear constitutional standard, which the ERA would provide, courts may continue to afford broad discretion to legislative reasoning. 

Invoking Bostock while undermining it: the Court’s contradictory approach

The Supreme Court’s reasoning in Skrmetti departs from the clear logic it applied in Bostock v. Clayton County (2020), where it held that discrimination against transgender individuals on the basis of sexual orientation and gender identity is discrimination under Title VII of the Civil Rights Act, which prohibits employment discrimination.  That decision marked a major step forward for LGBTQI+ rights, one that ought to have been central to the Court’s reasoning in Skrmetti. 

The Court in Skrmetti initially states that it declines to decide whether its reasoning extends past Title VII. However, it then attempts to differentiate this case from Bostock, asserting that a transgender boy would be denied treatment regardless of his sex assigned at birth, so long as the diagnosis is gender dysphoria.

This interpretation relies on a narrow reading of the law that ignores how it works in practice. 

A major step backward from modern interpretations of equal protection 

To support its conclusion, the Court relies on Geduldig v. Aiello (1974), a case that upheld the exclusion of pregnancy-related disabilities from insurance coverage. The Geduldig decision reasoned that, because pregnancy is a physical condition and not experienced by all women, the policy did not classify on the basis of sex. That case has long been criticized for its failure to acknowledge that distinctions targeting conditions unique to one sex, like pregnancy, can still constitute sex-based discrimination. 

In Skrmetti, the Court adopts a similar rationale. Because the law applies to all minors who seek gender affirming care, regardless of their sex assigned at birth, the Court reasons it is not discriminatory. But this fails to consider that only transgender minors seek such care, and only they are subject to the ban. 

By reviving the flawed reasoning of Geduldig, the Court enables laws that functionally exclude specific groups to escape heightened constitutional review, so long as the language is carefully crafted. But equal protection demands more than clever wording; it requires an honest look at how laws actually impact people. And that’s exactly what the majority in Skrmetti failed to do. 

A warning sign for the future of sex equality

The Skrmetti decision reflects a broader shift in equal protection doctrine away from substantive analysis of how laws operate and toward deference to legislative framing. Although SB1 is clearly conditioned on sex and its purpose is ideologically motivated, the Court, in contradiction to human rights law and standards,  declines to treat it as a sex-based classification. 

This approach risks rendering the Equal Protection Clause ineffective in precisely the kinds of cases where its protections are most needed, where marginalized groups face targeted state action under the guise of neutrality. 

This ruling is a warning sign. It shows how easily discrimination can be disguised in facially neutral language, while in reality targeting specific groups. Without clear and enforceable constitutional protections, such as those the ERA would provide, laws that restrict access to care or other rights based on sex or gender identity can slip through the cracks.

The path forward requires perseverance and vigilance, not only in advocating for stronger legal standards, but in ensuring judges at least uphold existing standards in practice and look to the standards set by international human rights mechanisms.  Skrmetti makes clear that relying on outdated legal reasoning leaves too many vulnerable, and that’s a reality we cannot accept.  Universal recognition and application of the ERA would go a long way to addressing these challenges.