Oral Argument Breakdown: US v. Skrmetti

The Supreme Court case United States v. Skrmetti, argued on December 4, 2024, addresses whether Tennessee’s Senate Bill 1 (SB1) violates the Equal Protection Clause of the Fourteenth Amendment by banning gender-affirming medical treatments for minors when used to align with a gender identity inconsistent with their birth sex. The petitioners, including transgender minors and their families, argue that SB1 constitutes a sex-based classification, requiring intermediate scrutiny, and is not tailored to protect adolescent health. Tennessee, represented by J. Matthew Rice, contends that the law regulates based on medical purpose, not sex, and should be upheld under rational basis review due to health and safety concerns.

Case Background

SB1 prohibits medical procedures, such as puberty blockers and hormone therapy, intended to enable a minor to “identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “discomfort or distress from a discordance between the minor’s sex and asserted identity” (Tenn. Code Ann. § 68-33-103(a)(1)). The petitioners, represented by the Solicitor General Elizabeth Prelogar and Chase Strangio of the ACLU, argue that this creates a facial sex classification, as the law’s application depends on a minor’s birth sex. For example, a minor assigned female at birth cannot receive testosterone to live as male, but a minor assigned male can for other medical purposes. Tennessee argues that the law distinguishes based on the purpose of the treatment (e.g., treating gender dysphoria versus precocious puberty), not sex, and is justified by concerns about the risks and unproven benefits of these treatments for minors.

The Sixth Circuit upheld SB1, applying rational basis review, finding no sex-based discrimination. The Supreme Court granted certiorari to determine whether the law violates equal protection, marking the first time the Court has directly considered this issue in the context of gender-affirming care for minors.

Analysis of Justices’ Positions

The oral arguments reveal a divided Court, with justices’ questions indicating their leanings on whether SB1 is a sex-based classification and what level of scrutiny applies:

Justice	Key Comments	Likely Position
John G. Roberts, Jr.	Expressed skepticism about the Court’s role in resolving complex medical issues, asking, “Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies?” Compared the case to Morales-Santana and Craig v. Boren, noting that SB1 involves “medical nuances” unlike traditional sex discrimination cases. Emphasized “constitutional allocation of authority,” suggesting deference to Tennessee’s legislature. Probed whether courts are equipped to evaluate evolving medical standards, citing differences in European policies over time.	Likely to uphold SB1, favoring rational basis review and legislative authority over medical policy.
Clarence Thomas	Questioned whether SB1 is an age-based restriction, asking, “Why isn’t this simply a case of age classification?” Focused on physiological differences, inquiring if testosterone has different effects in males versus females. Sought clarity on the remedy, asking, “What would you get?” to understand the practical outcome for petitioners. His focus on biological distinctions and remedies suggests a view that SB1 may not primarily target sex, aligning with Tennessee’s medical purpose argument.	Likely to uphold SB1, viewing it as not primarily sex-based and suitable for rational basis review.
Samuel A. Alito, Jr.	Challenged the petitioners’ medical evidence, citing the Cass Report’s conclusion that “there is no evidence that gender-affirmative treatments reduce suicide.” Questioned the applicability of Bostock v. Clayton County, noting it involved statutory interpretation, not equal protection, and referenced Geduldig and Dobbs to argue that medical condition-based laws may not trigger heightened scrutiny. Probed whether transgender status is immutable, suggesting it may not qualify as a suspect class due to its perceived fluidity.	Likely to uphold SB1, emphasizing medical uncertainty and rational basis review.
Sonia Sotomayor	Highlighted the severe impact of gender dysphoria, noting, “Some children suffer incredibly… some attempt suicide.” Argued SB1 is sex-based, stating, “Doesn’t the doctor have to know whether it’s a girl or a boy before they prescribe the drug?” Drew historical parallels to sex-based occupational bans, emphasizing intermediate scrutiny’s role in guarding against prejudice. Questioned Tennessee’s claim that the democratic process protects minorities, citing the vulnerability of transgender individuals as a small population.	Likely to support petitioners, favoring intermediate scrutiny and finding the law discriminatory.
Elena Kagan	Asserted SB1 is inherently sex-based, stating, “The whole thing is imbued with sex… it’s based on sex.” Noted the law’s focus on treatments “inconsistent with sex” and questioned Tennessee’s purpose of encouraging gender conformity, asking how it aligns with equal protection. Suggested that similar laws’ underinclusion (allowing treatments for non-transgender purposes) may fail heightened scrutiny, citing West Virginia’s tailored approach as a contrast.	Likely to support petitioners, seeing the law as sex-based and requiring intermediate scrutiny.
Neil Gorsuch	Remained silent during arguments, offering no questions to reveal his stance. As the author of Bostock v. Clayton County (2020), which held that gender identity discrimination is sex discrimination under Title VII, he may view SB1’s “inconsistent with sex” language as a sex-based classification. His silence could indicate deference to precedent or uncertainty about applying Bostock to equal protection analysis.	Unclear, but past rulings suggest potential openness to petitioners’ classification argument.
Brett M. Kavanaugh	Emphasized legislative discretion, asking, “Why isn’t it best to leave it to the democratic process?” Noted risks and benefits on both sides, including “lost fertility” and “detransition regret,” suggesting courts should avoid “constitutionalizing” the issue. Probed implications for women’s sports, asking if intermediate scrutiny could allow sports restrictions while striking down SB1, indicating a concern for broader legal impacts. Referenced European policy shifts as a “yellow light” for judicial caution.	Likely to uphold SB1, favoring legislative discretion and rational basis review.
Amy Coney Barrett	Explored whether SB1 is a sex-based or transgender-status classification, asking, “Why isn’t that more of an Arlington Heights argument about intentional discrimination?” Questioned transgender status as a suspect class, noting, “We don’t have a history of de jure discrimination against transgender people.” Probed parental rights, suggesting they remain viable under substantive due process, indicating a focus on legal frameworks over policy outcomes.	Neutral or swing vote, focusing on legal frameworks rather than a clear stance on the law’s merits.
Ketanji Brown Jackson	Drew a strong parallel to Loving v. Virginia, arguing, “The law here operates in the same way… you can get these blockers if consistent with your sex but not if it’s inconsistent.” Emphasized that SB1’s application depends on birth sex, as in her example of a boy versus a girl seeking voice-deepening hormones for the same purpose. Expressed concern that deferring to legislatures risks undermining equal protection precedents, reinforcing the need for heightened scrutiny.	Likely to support petitioners, viewing the law as discriminatory and requiring heightened scrutiny.

Detailed Breakdown by Justice

• Chief Justice John G. Roberts, Jr.: Roberts expressed significant skepticism about the Court’s ability to resolve complex medical issues, questioning whether the Court should delve into “medical nuances” unlike cases like Craig v. Boren (drinking ages) or Morales-Santana (adoption rights). He pressed both Prelogar and Strangio on the appropriateness of judicial intervention, suggesting that “constitutional allocation of authority” favors state legislatures. His focus on deference to elected representatives indicates a likely vote to uphold SB1 under rational basis review.

• Justice Clarence Thomas: Thomas focused on whether SB1 is primarily an age-based restriction rather than a sex-based one, asking Prelogar if the law’s application to minors changes its classification. He also probed the physiological differences in hormone effects between males and females, suggesting a concern with medical reality over legal categorization. His questions about the remedy (e.g., what practical outcome the petitioners seek) indicate a pragmatic approach, likely aligning with Tennessee’s argument that the law is not sex-based and should face minimal scrutiny.

• Justice Samuel A. Alito, Jr.: Alito was highly critical of the petitioners’ claims about the medical evidence, citing the Cass Report’s finding that there is “no evidence that gender-affirmative treatments reduce suicide.” He challenged Prelogar for relegating the Cass Report to a footnote and questioned whether transgender status should be a suspect class, noting the lack of immutability and historical de jure discrimination. His skepticism of the petitioners’ arguments and focus on medical uncertainty suggest he will likely uphold SB1.

• Justice Sonia Sotomayor: Sotomayor was empathetic to the petitioners, emphasizing the severe consequences of gender dysphoria, such as suicide attempts and mental health struggles. She argued that SB1 requires doctors to know a patient’s sex to apply the law, indicating a sex-based classification. She also challenged Tennessee’s claim that the democratic process protects minorities, noting that small populations like transgender individuals (less than 1% of the population) are vulnerable. Her position strongly favors the petitioners, likely supporting intermediate scrutiny.

• Justice Elena Kagan: Kagan viewed SB1 as inherently sex-based, stating that its focus on treatments “inconsistent with sex” is “utterly and entirely about sex.” She questioned whether the law’s structure means all similar bans would fail under heightened scrutiny and pressed Tennessee on the law’s purpose of encouraging gender conformity. Her comments suggest a strong inclination to find SB1 unconstitutional, favoring the petitioners’ call for intermediate scrutiny.

• Justice Neil Gorsuch: Gorsuch’s silence during the arguments makes his position difficult to predict. However, as the author of the majority opinion in Bostock v. Clayton County (2020), which held that discrimination based on gender identity is a form of sex discrimination under Title VII, he may be open to recognizing SB1 as a sex-based classification. His lack of engagement leaves his vote uncertain, but his precedent suggests potential sympathy for the petitioners.

• Justice Brett M. Kavanaugh: Kavanaugh emphasized the neutrality of the Constitution on this medical and policy debate, arguing that states should have flexibility to make choices given the risks and benefits of gender-affirming care. He questioned the implications for women’s sports and expressed concern about the Court “constitutionalizing” the issue. His preference for legislative discretion over judicial intervention indicates a likely vote to uphold SB1 under rational basis review.

• Justice Amy Coney Barrett: Barrett’s questions focused on legal frameworks, such as whether transgender status should be a suspect class and the history of de jure discrimination. She noted the Court’s reluctance to create new suspect classes (e.g., in Cleburne) and explored whether SB1’s burden falls equally on boys and girls. Her inquiry into parental rights suggests openness to alternative legal challenges, but her position on the equal protection claim remains unclear, making her a potential swing vote.

• Justice Ketanji Brown Jackson: Jackson drew a strong parallel to Loving v. Virginia (1967), arguing that SB1’s prohibition on treatments “inconsistent with sex” mirrors laws banning actions inconsistent with race. She challenged Tennessee’s claim that the law is not sex-based, asserting that its application depends on a minor’s birth sex. Her focus on historical equal protection precedents suggests she will likely support the petitioners, favoring heightened scrutiny.

Additional Context

• Medical Evidence and European Developments: The Cass Report, cited by Alito, found a lack of high-quality evidence that gender-affirming treatments’ benefits outweigh risks for minors. However, Prelogar and Strangio noted that European countries like the UK, Sweden, and Finland have not banned these treatments outright, instead imposing tailored restrictions. This debate influenced conservative justices’ skepticism but was countered by petitioners’ evidence of benefits, such as reduced suicidality.

• Government Position Shift: On February 7, 2025, the Trump administration notified the Court that it now supports SB1, arguing it does not violate equal protection, a reversal from the Biden administration’s opposition. This shift may reinforce conservative justices’ leanings but is unlikely to significantly alter the Court’s analysis post-arguments.

• Broader Implications: Tennessee is one of 26 states with similar restrictions on gender-affirming care for minors. A ruling upholding SB1 could embolden further restrictions, while a ruling for the petitioners could require heightened scrutiny for such laws, potentially invalidating broad bans. The case’s outcome may also impact related issues, such as transgender participation in sports, though justices like Kavanaugh and Barrett noted these involve different state interests.

Predicted Outcome

In this matter, the Court is likely to uphold SB1, with a potential 5-4 or 6-3 decision favoring Tennessee. The conservative justices (Roberts, Thomas, Alito, Kavanaugh) appear aligned with rational basis review, emphasizing legislative authority and medical uncertainty. Gorsuch’s silence and Barrett’s neutral stance leave room for uncertainty, but the conservative majority’s skepticism of judicial intervention suggests a lean toward upholding the law. The liberal justices (Sotomayor, Kagan, Jackson) are likely to dissent, arguing that SB1’s sex-based classification fails intermediate scrutiny.

The United States v. Skrmetti oral arguments reveal a polarized Court, with liberal justices likely to find SB1 unconstitutional due to its sex-based classification, while conservative justices favor upholding it under rational basis review, citing legislative discretion and medical uncertainty. Barrett and Gorsuch remain potential swing votes, but the Court’s conservative majority suggests a likely ruling in favor of Tennessee. The decision, expected by summer 2025, will have significant implications for transgender youth and state regulations nationwide.

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