FAIR’s Interest in Skrmetti and Gender Advocacy
The implications of current gender ideology extend beyond the harm that can result from experimental medical treatments for children; they also affect many facets of our social and legal structures
Belief in the existence and discoverability of objective truth is central to FAIR's vision. This principle has driven us to consistently take on advocacy projects in the gender space, most recently through our involvement in U.S. v. Skrmetti, where the Department of Justice and the ACLU have asked the Supreme Court to strike down a Tennessee law banning "gender-affirming" medical treatments for minors. The Court heard oral arguments in the case earlier this week, and the justices are expected to publish their opinion in June 2025.
We are excited to share with you below the many parts of our advocacy efforts that culminated in this week’s SCOTUS oral arguments, as well as a bit of background on how FAIR came to be involved. But first, we want to share more about this particular case.
U.S. v. Skrmetti
The original plaintiffs in Skrmetti are transgender youth and their families who live in Tennessee. They sued to block the Tennessee law from taking effect, arguing that the law amounts to unlawful sex-based discrimination through which the state was not poised to further a strong enough interest. Later, the Biden-Harris administration intervened on the plaintiff’s side, hence the current case title being “U.S. v. Skrmetti” (Skrmetti is the name of Tennessee’s Attorney General). Early analysis of the oral arguments suggest that the Supreme Court will choose to uphold the Tennessee law, which will ground similar bans in 25 other states on solid legal footing, and will likely embolden additional states to adopt similar laws. What remains unclear is how exactly the Court will arrive at this conclusion.
The oral arguments focused greatly on the level of constitutional scrutiny that should be applied in the Court’s analysis of Tennessee’s law. The Department of Justice and the ACLU’s position is that the law is a form of sex-based discrimination because, they argued, it prohibits, for example, a girl from taking testosterone, while allowing a boy to take testosterone. Tennessee, however, refutes this argument. Instead, Tennessee’s position is that the law is sex-neutral because, it argues, it applies to all youth, and simply prohibits a particular use of the medications in question—for the purpose of affirming one’s “gender-identity.” If you listen to the oral arguments, you will witness the stunning linguistic acrobatics—both on the part of the justices and the attorneys—that were required in order to engage in these discussions.
Interestingly, there was also some discussion about whether “transgender status” could or should be recognized by the court as a protected classification. If the Court decides to address this particular question, and if it decides to say “no, transgender status is not a protected characteristic warranting heightened legal scrutiny,” additional waves would be made in the gender space. This type of ruling would send a clear signal that states have a very low legal bar to hurdle if they choose to adopt laws that discriminate against individuals based on transgender status. However, it does not seem likely that the Court will go this route.
As you will hear from experts in our webinar recorded earlier this week, many believe the Court will instead refrain from answering that question, and will instead find one of two ways: First, the Court could find that Tennessee’s law is neutral, and therefore only requires a showing that the law is rationally related to a legitimate governmental interest. In this scenario, the Court will affirm the 6th Circuit Court’s holding.
The other possibility is that the Court could find that Tennessee’s law does discriminate on the basis of sex, as the DOJ and the ACLU have argued, which would require the Court to remand the case back to the lower courts to determine if the law is constitutional under a heightened scrutiny analysis. This would require that the law is substantially related to furthering an important governmental interest. In the end, this second possibility is likely the best the DOJ and the ACLU can realistically hope for, and it will only render them more time, and will likely lead to the same result.
FAIR’s Interest in Skrmetti and Gender Advocacy, More Generally
In recent years, significant legal, social, and cultural issues have arisen due to dramatic policy shifts related to gender ideology. For example:
We have received reports that teachers have infringed on the free speech rights of children by requiring them to state their "preferred pronouns" or use the chosen pronouns of other students, or by making students feel compelled to stay home on the annual "Day of Silence" to avoid being bullied for not participating in this protest.
Teachers have sought FAIR’s assistance when facing reprimand or termination for refusing to conceal a student's gender transition from their parents or for acknowledging that only females can become pregnant.
FAIR has helped over 30 female inmates file grievances with the Washington Department of Corrections due to harm from being forcibly housed with trans-identifying male inmates, and we recently filed a formal complaint with the Department of Justice based on these grievances.
Healthcare professionals have sought FAIR’s help when institutional policies or laws require them to act against their conscience and the ethical practice of medicine by affirming a minor child's chosen gender identity.
Numerous parents have sought FAIR’s assistance when schools refuse their requests that their child not be socially transitioned at school, and in some cases they have required legal aid to retain custody of their children when threatened by state protective services agencies.
FAIR’s Advocacy Around Skrmetti
Our extensive experience with the impacts of these policies compelled FAIR to actively engage in developments around U.S. v. Skrmetti. We submitted an amicus brief supporting Tennessee's decision to ban the medicalization of minors; hosted a webinar to share expert opinions prior to oral arguments; and were represented in Washington, D.C., by Dr. Nikki Johnson, Interim Director of FAIR in Medicine, and Candice Jackson, FAIR Network Attorney, who both spoke at a rally in front of the Supreme Court on the morning of oral arguments.
FAIR’s primary goal in submitting an amicus brief—and our mission in all our advocacy on this topic—was to assist the Court in its analysis by emphasizing the need to recognize and distinguish between objective and subjective identities in law. As we stated:
"It is an objective truth that males and females are biologically distinct in many important respects. When these distinctions are consequential to protecting individual rights, judicial scrutiny must be appropriately applied. Failure to maintain and recognize this distinction inherently erodes certain sex-based rights."
The implications of current gender ideology extend beyond the physical harm that can result from experimental medical treatments for children; they also affect many facets of our social and legal structures. That is why FAIR focuses on this issue and works to protect individual rights in every way we can.
We hope you will appreciate and benefit from reviewing the many aspects of our work on this important issue. To support our continued advocacy in this area, please consider donating to our mission.
Read the Amicus Brief FAIR submitted in U.S. v. Skrmetti here.
For a primer on U.S. v. Skrmetti and the legal implications at stake, view our expert webinar here.
If you are curious to hear the Supreme Court oral arguments in their entirety, you can listen to the playback here, or read the full transcript here.
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I am grateful for all that you and FAIR do to defend reality and protect women, children and ethical professionals from the harms of gender identity ideology.