Skrmetti and birth equality (Part V): How the case should have been analyzed

Brothers in Law is a recurring series by brothers Akhil and Vikram Amar, with special emphasis on measuring what the Supreme Court says against what the Constitution itself says. For more content from Akhil and Vikram, please see Akhil’s free weekly podcast, “Amarica’s Constitution,” Vikram’s regular columns on Justia, and Akhil’s new book, Born Equal: Remaking America’s Constitution, 1840-1920.

Today we conclude our multi-part series on last term’s United States v. Skrmetti decision.

In Skrmetti, the Supreme Court allowed Tennessee to continue to enforce a law, SB1, that prohibits Tennessee doctors from providing surgical or hormonal treatments for minors when those treatments are sought for the purpose of “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s [biological] sex,” or “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” The Skrmetti majority concluded that the law on its face did not classify on the basis of sex or any other ground that would implicate “heightened” scrutiny under the equal protection clause of the 14th Amendment. According to the court, Tennessee’s law merely classified on the constitutionally unproblematic bases of age (minor status) and medical condition.

Huh? In our first two Skrmetti columns (see here and here) we proved as a matter of pure logic that Tennessee’s law also sorts individuals based on sex, as initially determined at birth. This birth-based law thus necessarily implicates the Constitution’s core principle of birth equality. As Akhil documents in his recently released book, our Constitution and the tradition that underlies it are dedicated to the proposition that all Americans are “Born Equal.” Our law should not demean some Americans, or exalt other Americans, simply because of the accidents of birth – a profound idea underlying many clauses and dramatically unfolding over the course of American history from 1776 forward. The Skrmetti court thus erred, badly, in applying mere “rational basis review” – essentially a judicial rubber stamp – to SB1. Instead, the law should have been assessed under the much more searching, though not always fatal, “intermediate scrutiny” that, according to settled doctrine, attends sex-based classifications (and that we think should also apply to transgender-based classifications).

Today we offer some provisional thoughts on how SB1 might fare under appropriate intermediate-scrutiny review. The factors surrounding SB1’s enactment cut in both directions, and we don’t express a firm bottom line, in large part because of the intricate procedural posture in which the case reached the court. The district court had entered a preliminary injunction against Tennessee’s law, but made no final findings of fact. (Technically, the Supreme Court ruled not that SB1 is constitutionally permissible, but that SB1 is likely constitutionally permissible, although the court was not always careful to observe this distinction in its opinion.) On our view, the court should have remanded the case to the lower courts with instructions to apply intermediate scrutiny to the statute in light of whatever facts, preliminary and ultimately final, the district court found. (We thus find ourselves in closest alignment with Justice Elena Kagan’s analysis in this case.)

As explained earlier in our series, not all sex-based classifications are unconstitutional. Why not? Because not all laws that classify on the basis of sex demean or exalt on the basis of sex – the constitutional evils to be avoided.

The “standards of review” (or “tiers of scrutiny”) that courts employ in equality cases are tools, not ends in themselves. They are heuristic devices to help unearth (or “smoke out,” as famous constitutional scholar John Hart Ely would say) improper governmental objectives, motivations, attitudes, or messages. Application of heightened scrutiny helps us determine what the real, as opposed to hypothesized or asserted, motivations of the government were, so that we can then decide whether the government was up to no good. We use the way a law is written on its face to determine how suspicious we should be about a given enactment, but whether that law ultimately survives judicial review is a product of the application of the indicated level of scrutiny, not the level in and of itself.

Another consideration is (or at least should be, in doctrine going forward) a given state’s overall track record in a particular arena. Is SB1 a standalone piece of legislation reflecting distinctive and seemingly legitimate concerns about the medical profession’s rush to provide potentially dangerous treatments to transgender minors? Or is it instead one piece of a spate of recently enacted laws in the state that, as written, treat transgender persons differently from others, including in areas where there is no apparent innocent reason for the differential treatment? For example, the Trump administration’s just-announced initiative to prohibit all hospitals that receive Medicare and Medicaid funding from providing any medical treatments to transgender minors looks more suspicious to us given that the administration has also recently singled out transgender individuals for unfavorable treatment in other settings, such as the issuance of passports, where the administration’s asserted reasons for overriding the wishes of transgender persons seem open to serious question. Regrettably, when courts decide what level of review to apply in an equality dispute, they often focus myopically on the statute, or even a particular clause of the statute, in front of them, rather than on the larger context of the government’s attitudes towards the individuals being regulated. But if we are trying to discern disrespect from mere differential treatment, the larger context is often crucial.        

So how should all of this have played out for Tennessee’s SB1, in light of what we know so far?

Intermediate scrutiny requires, as a doctrinal matter, that a law “substantially” further an “important” and genuinely legitimate government objective. 

We don’t have lot of information about the larger Tennessee regulatory setting in which SB1 sits, both because of the way the lawsuit was briefed and because of the procedural posture of the case. But we do have what Tennessee itself says. Tennessee’s stated objectives for SB1, on their own terms, raise some constitutional doubts. In SB1’s very words, the Legislature identifies two objectives.

The first is to “encourag[e] minors to appreciate,” rather than “become disdainful of,” their birth sex. The U.S. solicitor general under the Biden administration (who briefed and argued the case before the Trump administration took office) and some of the Skrmetti dissenters considered this objective to be itself constitutionally impermissible. As the solicitor general put it, “[a] law aimed at encouraging ‘boys and girls to look and live like boys and girls,’ rests on [‘illegitimate’ ‘stereotypic’] ‘notions’ [about gender].” At oral argument, the lawyer for Tennessee countered that discouraging children from becoming “disdainful of their sex” would always seem good for their mental health. But what about the objective of encouraging minors to “appreciate” their birth sex? Isn’t that another way of saying that transgender minors should simply resign themselves to their birth sex? And isn’t that governmental attitude disrespectful to people who do not wish to live forever in the gender-assignment box in which they were born? 

Tennessee’s lawyer argued that “appreciate” in this context means  “making sure that minors have enough time to appreciate their sex before undergoing life-altering changes,” so that the law’s stated objective here is in essence to encourage minors not to make any hasty or ill-considered decisions about their bodies. That would be a legitimate objective, and one not inherently disrespectful of transgender people. But “appreciate” and “think hard about” (our paraphrase of the Tennessee lawyer’s construction) are not the same things. Common synonyms of “appreciate” are “value,” “treasure,” “cherish,” “admire,” “be grateful or thankful for,” and “hold in high esteem.” Consider also the express statutory goal of avoiding “disdain[]” concerning one’s sex. The opposite of “disdain” is “”admiration” or “reverance,” not “deliberation.”   

Thus, SB1’s first avowed purpose may very well reflect disrespect toward people who are born transgender, or – to put it a slightly different way – toward persons who want to change some of the things they were born with or that were assigned to them at birth. Could Tennessee prohibit persons from changing their last name from say, Carpenter to Painter? Could the state require that all persons born with the last name “Carpenter” must in fact perform carpentry for the entirety of their lives? That they always “appreciate” and never become “disdainful” of carpentry – even if they come to realize that they much prefer painting to carpentry?

Now consider the second stated purpose of SB1: “to protect the health and welfare of minors,” by prohibiting medical treatments that carry “risks and harms.” Certainly this objective is legitimate and important and does not inherently disrespect or demean anyone. But does the way the rest of the way SB1 unfolds and operates corroborate this second justification as a genuine purpose behind the law? True, hormonal and surgical treatments for gender dysphoria might very well raise risks of physical and psychological harm. Virtually all treatments and procedures have side effects, and many have long-term consequences that are hard to reverse in the event a patient later decides to change course.

But SB1’s ban is styled not in terms of particular drugs, dosages, surgical procedures, or anything else the doctor is giving or doing. Instead, the law is keyed to the objective the patient seeks. Remember, SB1 bans all surgical or hormonal treatments for minors when those treatments are sought for the purpose of “[e]nabling a minor to identify with, or live as, 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” (emphases added). Can it really be that any surgical or hormonal treatment for these purposes inherently poses unacceptable medical “risks and harms”? And, in answering that question, shouldn’t the potential medical benefits to (at least some) transgender patients also have been weighed and given respect in the Tennessee Legislature’s determinations? The Biden administration’s solicitor general argued, with some plausibility, that lawmakers did not meaningfully factor in “the benefits of gender-affirming care … and adopted a categorical prohibition that is both severely overinclusive and severely underinclusive when viewed in light of [the] risks” in both directions (emphasis added).

For now, we say the solicitor general’s arguments are plausible (rather than devastating) because: (1) we are not medical experts ourselves; (2) although some claim that there are medical consensuses in this realm, we recognize there is at least some disagreement among medical authorities in these rather recently created and fast-evolving medical and psychological domains; and (3) intermediate scrutiny does not reflect the same suspicion that strict scrutiny does, because sex is a more salient and sometimes legitimate real-world consideration than is race. And in the context of minors, who themselves may not be the most sophisticated consumers of medical services, perhaps the state should be given the benefit of the doubt. 

However, SB1 seems to override the wishes not just of minors, but of their parents, who, in consultation with doctors in whom they have confidence, would ordinarily be trusted to make appropriate medical judgments for their children, and whose decisions may warrant even more deference than those of the state. The Skrmetti court declined to review the challenges to SB1 brought by parents who asserted the law interfered with their rights to direct the medical treatments of their children. Still, the unusual parental-override aspect of SB1 remains relevant to what the Tennessee Legislature was genuinely and legitimately trying to accomplish.

What if, in some future case, a trial court were to determine that preservation of the health of minors was one respectful and legitimate governmental objective advanced by SB1, and that encouraging people who think they are transgender to simply abandon their self-identity and accept their birth sex was another, and improperly disrespectful, objective? In such a circumstance, would the permissible justification of the law override the constitutionally improper goal, or vice versa?

In one sex-discrimination case, Michael M. v. Superior Court, decided in 1981, the court (per then-Justice William Rehnquist) suggested that so long as there is one sincere governmental objective that would, on its own, survive intermediate scrutiny, the presence of other, constitutionally impermissible, government objectives is beside the point. We disagree. In the race-discrimination setting, as Rehnquist’s majority opinion in the 1985 case of Hunter v. Underwood recognized a few years later, if a government law is motivated by two purposes – one constitutionally permissible and the other constitutionally illicit – the law is invalid unless the government can show that the law would have been enacted even absent the illicit motive. That is, the government must demonstrate that the impermissible purpose was “harmless error,” to use a term common in the criminal procedure realm. We think that is the right approach. Thus, if SB1 were motivated by both disrespectful and legitimate governmental motivations, the law should be struck down unless a reviewing court is confident that the legitimate reasons would have driven enactment even in the absence of the impermissible, demeaning, purposes.

True, SB1 involves sex rather than race. But as previously noted, the different tiers of scrutiny (intermediate scrutiny for gender, strict scrutiny for race) reflect different levels of suspicion based on the facial classifications a law employs, so that courts can exert the appropriate level of energy to “smoke out” actual and potentially problematic governmental motivations. Once improper motivations are clear (either because they have been smoked out or because the legislature openly acknowledges them), then the only question becomes whether those motivations were harmless error or not.

To put the point another way, sex classifications warrant less searching judicial review than racial classifications not because birth-based disrespect based on sex is any less constitutionally problematic than birth-based disrespect based on race, but rather because sex classifications may portend and correlate with sexual disrespect less than racial classifications portend or correlate with racial disrespect. Once we have direct evidence of disrespect on either ground, we should eradicate it. Both kinds of birth-based disrespect violate the fundamental constitutional command that individuals not be demeaned (or exalted for that matter) because of the accidents of birth.

As we shall try to show in future posts, this grand birth-equality principle, which unites our five Skrmetti posts, also has deep and indeed decisive implications for the court’s upcoming birthright citizenship case. Stay tuned.