Last week, the US Supreme Court began reviewing the consequential Tennessee case United States v. Skrmetti, which will determine if states are constitutionally allowed to enact bans on so-called “gender-affirming care” procedures for minors. Twenty-six states, including South Dakota, have passed laws restricting such medical intervention. The Supreme Court’s decision will determine if South Dakota can continue protecting children from radical, experimental transgender medication and procedures. We’re following this case closely as it proceeds through court. Here’s what you need to know.

The Supreme Court will primarily base its decision on whether or not “gender-affirming care” bans for minors violate the equal protection clause of the 14th Amendment, which states:

“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

The Biden administration’s Department of Justice and the American Civil Liberties Union (ACLU) argued that bans on “gender-affirming care” discriminate against children based on sex, thus violating the equal protection clause. Jonathan Skrmetti, Tennessee’s attorney general, argues that the law restricts conduct based on age (18 and younger) and how certain drugs are used – whether minors are seeking the drugs specifically for gender transitions or other medical purposes. 

If the prosecution can convince the Supreme Court that Tennessee’s ban violates the equal protection clause, the law will be subject to intermediate scrutiny and the defense will be required to prove that the law is “substantially related” to achieving an “important” government interest – a much more difficult task than if the law restricts based only on age and intended use.

Several justices noted recent reports from Sweden, England, and other European countries that have backpedaled on “gender-affirming care” after numerous scientific studies showed the dangers and irreparable harm caused by such procedures and medication. In fact, the British government indefinitely banned puberty blockers as a treatment for minors with gender dysphoria this week after a report found “an unacceptable safety risk in the continued prescription of puberty blockers to children.”

Justice Brett Kavanaugh expressed that these reports give the court “a yellow light, if not a red light” in “constitutionalizing” a new area of law. Justice Samuel Alito chided the prosecution for dismissing the serious implications of so-called transgender medicine by “relegat[ing] [it] to a footnote.”

The conservative justices did not seem inclined to expand constitutionally protected categories to include “transgender status,” which would subsequently create a violation of the 14th Amendment whether or not the law discriminates based on sex. The three liberal justices, however, seemed more open to the idea.

While it’s too soon to predict the outcome of the case, and the court’s decision is not expected until June of 2025, the hearing went well for Tennesee and we remain optimistic that the Supreme Court will rule in favor of upholding the law. As the court noted in Dobbs and repeated in this case, “Perhaps we should leave this issue to the people and their elected representatives.”

To learn more about the case, you can listen to this podcast from our friends at Family Policy Alliance.