Skrmetti: the “sleeper” case that could shift the tide in the culture war
Today, the justices will hear oral arguments in United States v. Skrmetti, a case that may finally force the nation’s highest court to address transgender rights head-on
Until now, the Supreme Court has mostly refrained from addressing a hot-button issue that’s roiled communities and even played a pivotal role in the final weeks of the 2024 presidential election: transgender rights.
In 2023, the Court issued a temporary order allowing an 11-year-old transgender girl to compete on her school’s girls’ track and cross-country teams, despite a West Virginia law barring boys from participating in girls’ sports in public schools. In April, the justices temporarily allowed Idaho to enforce a state ban limiting gender-affirming care for transgender youth.
In both cases the Court acted on an emergency basis while litigation proceeded in lower courts, thereby avoiding a ruling on the constitutionality of the laws themselves. In the absence of clear guidance, there has been mounting confusion about the scope of rights and protections afforded to transgender Americans.
That could change soon. Today, the justices will hear oral arguments in United States v. Skrmetti, a case that may finally force the nation’s highest court to address transgender rights head-on.
At issue in Skrmetti is a Tennessee law (SB1) banning medical treatments for transgender minors. According to the state’s attorney general, the law’s purpose is “to ensure that potentially irreversible sex-transition interventions of uncertain benefit are not performed on minors who may not be able to fully grasp their lifelong consequences and risks.”
Most legal observers have focused on the impact Skrmetti might have on 25 states that have adopted similar bans. However, a deeper reading of the issues raised in this case suggest that it could have broader implications. The Court’s decision could either herald the beginning of the end of the culture war—or a widening of fronts on its battlefield.
FAIR believes this case is so important that it was compelled to join GENSPECT in submitting an amicus curiae brief in support of SB1. Nikki Johnson, MD, DNBPAS, Interim Director of FAIR in Medicine, and Candice Jackson, a member of FAIR Legal’s network of attorneys, will also speak today at a rally in Washington, D.C. to highlight Skrmetti’s significance.
The Biden administration, along with the American Civil Liberties Union and other advocacy groups, argue that SB1 violates the Equal Protection Clause of the Fourteenth Amendment because it discriminates on the basis of sex. The law allows minors who identify with their natal sex to receive medication for on-label purposes, yet denies off-label use of the same medication for youth who identify with the opposite sex.
The question the Court will consider for the first time is: Are sex and gender synonymous under the Constitution?
The Court has already addressed this issue tangentially in the context of employment. In 2020, a 6-3 majority found that a Georgia county improperly fired a social services coordinator because he was gay. The justices reasoned that the protections under Title VII of the Civil Rights Act of 1964 that prohibit employment discrimination on the basis of sex also apply to gender and sexual orientation. It’s a premise most Americans would find morally sound; no one should be denied the opportunity to earn a livelihood based on any social stereotyping.
By contrast, Skrmetti implicates the Equal Protection Clause, which encompasses a broader range of sex-based protections that extend beyond employment, which is why this case could be a game changer. If the Court determines that sex and gender are equivalent under the Constitution, it opens the door to the erosion of a wide swath of legal protections that have safeguarded biological females, an historically marginalized group.
It’s important to note that sex-based rights guaranteed by the Equal Protection Clause are intended to provide relational boundaries to counter social stereotyping and universally recognized biological differences that have disadvantaged women.
The right to women-only spaces in prisons protects female inmates against pregnancy and physical assault by men who are, on average, stronger than women.
The right of battered women to be housed in sex-segregated shelters reduces the risk that biological females will suffer retraumatization.
The right of women and girls to participate in sex-segregated sports reflects a need to provide a safe and equal opportunity to compete with peers who are physically comparable.
Sex-based data is gathered to assist policymakers in assessing changes in conditions and behaviors of biological females so they can create policies and laws that are tailored to meet their specific physical and psychological needs.
Sex-based protections aim to alleviate the harms women experience due to verifiable and innate differences in biology. Males, even if they identify as women, are not the intended beneficiaries of these protections because they do not face the same inherent risks and challenges.
If the Court equates sex with gender identity for Equal Protection purposes, it will erase recognized differences that compelled the need for sex-based protections in the first place. The fallout could extend far beyond bans on gender-affirming care; it could also eviscerate legal safeguards for women in a plethora of other spaces, potentially resurrecting the very oppression that these laws were intended to eliminate.
Erasing distinctions between sex and gender could also undermine the rights of gay women because sex, not gender, defines sexual orientation. Suppose the Court accepts the Biden administration’s interpretation of the Equal Protection clause. Might a lesbian dating site be found guilty of discrimination if it restricts membership to women who identify with their natal sex while excluding biological males who identify as female? Such a ruling would negate a fundamental premise of same-sex attraction and undermine the sexual preferences of lesbians, an outcome that would be profoundly regressive, not progressive.
On the other hand, a decision by the Court to reject the conflation of sex and gender would embrace the reality of sex-based differences and the need to protect biological women whose rights have been diminished by the growing pressure to accommodate transgender individuals. Many of the gender-based conflicts that have divided our country and communities would be resolved or rendered moot, thereby encouraging more common sense solutions that promote equality for all rather than equity for some.
The stakes in Skrmetti couldn’t be higher. The Court has the opportunity to provide much-needed clarity around the protections that the Constitution does (or doesn’t) contain for gender identity. Let’s hope its decision ensures that women and lesbians continue to enjoy the rights and safety they deserve.
 | A guest post by
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"Transgender rights"? Is that a neutral or a biased term? Is there such a thing? Shouldn't it be female rights, or perhaps you should say the court will address transgenderism.
Bostok got it wrong - by extension, the above commentary as well. Lumping in gender identity with sexual preference is erroneous, if it is nothing less than binary and includes “transgender”. If gender is biologically bound, then dismissal based on it would be discriminating on immutable traits, like skin color. Which would be amoral.
But in the case of “transgender”, perceived gender is based on subjective not objective truths to the level of mental disorder or narcissistic delusion. To say this isn’t grounds for dismissal is a decision at an employer’s peril. Should anyone be compelled to retain an employee that identifies as an elephant or a white woman who claims she’s black? No. If you can’t trust someone with the most fundamental of truths, would you trust them with professional responsibility?