Court’s Ruling in Skrmetti Threatens All Care That’s Politically Contested
An anti-trans, anti-science decision relies on a history of discrimination against women, and opens the door to challenges on care like vaccines.
by Evan Urquhart
Since December, commentators and court watchers have predicted that the conservative dominated Supreme Court would rule against trans people’s equal right to healthcare in the case of U.S. vs Skrmetti. Today those fears proved correct as every conservative on the court endorsed a 6-3 decision that Tennessee’s ban is constitutional. Writing for the majority, Chief Justice John Roberts ruled that the law does not discriminate on the basis of either sex or transgender status.
Roberts’ opinion relied heavily on Geduldig v Aiello, a case from the 1970s in which the court ruled that a California law that offered insurance protections for most medical conditions, but exempted pregnancy, did not discriminate against women. (Three conservative justices, Thomas, Barrett and Alito, wrote their own concurrences in addition to joining all or most of Roberts’ decision, but each one also favorably cited Geduldig.)
The text of Tennessee’s law would certainly seem to be based explicitly on sex, a point made repeatedly in the dissent by Justice Sotomayor, one of three members of the court to have been appointed by a Democrat. The law describes the ban as prohibiting providers from helping youth “identify with, or live as, a purported identity inconsistent with the minor’s sex” and claims its purpose is “encouraging minors to appreciate their sex.”
However, Roberts’ decision instead views the patients affected as those with certain conditions, specifically those of gender dysphoria, gender identity disorder, or gender incongruence. The opinion reasons that although only trans people experience gender dysphoria, there are some trans people who don’t, just as there are some women who never become pregnant.
Writing in dissent, Justice Sotomayor took square aim at the majority’s reliance on Geduldig, citing former Justice Ginsburg writing in 2012 that the decision “was “egregiously wrong” when it was decided, both “[b]ecause pregnancy discrimination is inevitably sex discrimination” and because discrimination against women is so “tightly interwoven with society’s beliefs about pregnancy and motherhood.”
“That the majority must resuscitate so unpersuasive a source, widely rejected as indefensible even 40 years ago,” Sotomayor’s dissent continues, “is itself a telling sign of the weakness of its position.”
The consequences of care bans for trans youth and their families have already been dire. From the time of their passing many families in states with bans have fled their homes, while others travel hours to seek these treatments elsewhere. In more recent months the Trump administration has threatened access to treatment even in states where care remains available, issuing an executive order that sought to punish providers of these treatments by withholding funding and even the threat of Justice Department investigations.
However, the consequences may go much further, both for transgender people and the American public. By deciding that the court has no role in weighing scientific evidence as long as there is some claim of scientific uncertainty, Roberts opens the door for bans on gender-affirming care for adults, as well as bans on other politically contested, but scientifically well-founded, treatments.
The evidence for vaccines, for example, is believed by the current secretary of the HHS, Robert F. Kennedy Jr., to be uncertain and contested. Kennedy has stacked a vaccine advisory panel with fringe figures who dissent from the scientific consensus. As with gender-affirming care, the scientific uncertainty on vaccines is a result of disinformation and far-right political advocacy. But the logic of Roberts’ opinion suggests bans on vaccines could pass a rational basis test as long as “any reasonably conceivable state of facts” could possibly support them.
The reliance on Geduldig also suggests a serious erosion in the rights of women to be protected from sex discrimination. In the dissent, Sotomayor claims that the same logic could be used to exclude any person who has ever menstruated from a healthcare plan, because some women have conditions that prevent menstruation. (Discrimination against pregnant people was banned under a 1978 amendment to the Civil Rights Act, but no such protections exist for menstruation or any other sex-linked condition.)
For transgender Americans, this is a dark day in an increasingly dark year that has been marked by repeated efforts to roll back both social acceptance and legal protections by conservatives. However, the implications of this decision in an environment where science and expertise is increasingly contested and politicized may go further than almost anyone appreciates.
CORRECTION: An earlier version of this piece stated that three of the conservative justices wrote concurrences instead of joining Roberts’ opinion. The concurrences were in addition to joining the opinion.
Evan Urquhart is the founder of Assigned Media.