SCOTUS’ Blow to Trans Rights Is History Repeating Itself

On June 18th, the U.S. Supreme Court issued its decision in United States. v. Skrmetti, a case that will have far-reaching effects on the lives of transgender Americans—and the principles of equal protection for all Americans.

In Skrmetti, the parents of three transgender children sued the state of Tennessee for a law that nullified their children’s rights to continue gender-affirming care. The law, which took effect on July 1, 2023, forbids treatment such as puberty blockers and hormone therapy—but only for transgender children. This, as a result, created two classes of people and two kinds of law: cis and trans.

Advertisement

Advertisement

What Tennessee had done, said ACLU attorney Chase Strangio, who became the first openly transgender person to argue before the Court, is “impose a blunderbuss ban overriding the very careful judgment of parents who love and care for their children and the doctors who have recommended the treatment.” In deciding against parental rights and against the advice of medical experts, the Court has put the health and well-being of the plaintiffs at risk. In the same text, the decision also has diminished the right to equal protection—the right to be who we are, and the right to be let alone. What is most striking about this decision, however, is just how much history repeats itself.

Skrmetti carries echoes of the Supreme Court’s 1986 decision in Bowers v. Hardwick, in which an Atlanta bartender, Michael Hardwick, sued for his right to sexual privacy. On August 3, 1982, an Atlanta police officer arrested Hardwick and a partner for oral sex conducted inside Hardwick’s apartment, behind closed doors. Georgia deemed that act criminal and threatened a possible 20-year prison sentence. The Supreme Court ruled for the state on June 30, 1986, when it found that queer people had no right to sexual privacy, and that “homosexual sodomy” could be made illegal.

Advertisement

Both Hardwick and Skrmetti revolve around the idea of intermediate scrutiny—that to infringe upon the privacy and liberty of a person, as well as their right to equal protection, the state had to come up with some satisfactory reason why it had an interest. In Hardwick, American legal scholar Laurence Tribe argued for the Court on March 31, 1986, that the state should have to explain how and why it would be permissible to discriminate against homosexual sodomy.

During oral arguments, Justice Sonia Sotomayor reasoned that the case might demand intermediate scrutiny, so that “we don’t make personal judgements”—and so the Court, if it permitted the Tennessee law to survive, could minimize the suffering of anyone who might be legally barred from treatment.

It’s impossible to gauge how many people died as a result of Hardwick, as they refused to seek treatment for HIV in order to avoid discrimination. Michael Hardwick himself died of complications of HIV infection in 1991, a cause left off his death certificate to preserve what little privacy remained for his family. It wasn’t until 2003 when the Supreme Court overturned itself in the Lawrence v. Texas decision that it recognized its decision in Hardwick was “wrong the day it was decided.” Within a dozen years, the Court would find same-sex marriage to be a constitutional right in 2015’s Obergefell v. Hodges.

Advertisement

It seems that this will also be true for the United States. v. Skrmetti. The Supreme Court’s June 18 decision held deeply disappointing and ill-informed opinions about the lives of transgender people. “Transgender status is not ‘immutable,’” wrote Justice Samuel Alito, “and as a result, persons can and do move into and out of the class.” His opinion ignores the reasons a very slim minority of trans people may decide to conform to a cis identity—because it can ensure their safety in hostile places. Alito also suggested that “transgender individuals have not been subjected to a history of discrimination,” which shows an astonishing lack of knowledge of queer lives and queer history, or perhaps the lack of concern for it.

Justice Amy Coney Barrett went further. She found no reason to treat transgender people as a class subjected to discrimination, and unironically, wrote within her concurrence the very reasons that transgender people have had to fight for basic civil rights: because they have “‘been subjected to discrimination’” and because they are “‘a minority or politically powerless.’”

Advertisement

Read More: Why Trans People Must Prove a History of Discrimination Before the Supreme Court

In her dissent, Justice Sonia Sotomayor wrote eloquently about the lives of transgender citizens, whose need to access treatment “is not a matter of mere cosmetic preference,” as she noted. “To the contrary, access to care can be a question of life or death.” 

The court failed precedent by not applying intermediate scrutiny, she writes—and in doing so, the Court “does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight,” and brings “untold harm to transgender children and the parents and families who love them.”

As in Bowers v. Hardwick, Sotomayor’s dissent will hopefully be the inspiration for cases that will challenge and one day, perhaps, overturn Skrmetti. As Constitutional scholar Anthony Michael Kreis posted to social media in the aftermath of the decision, “May Skrmetti be the Bowers of our time.”

Advertisement

That said, until it is overturned, Skrmetti might grant “open season” on trans rights. It places transgender children in states with such laws at risk of persecution and suicide. And while transgender adults now have more autonomy to make private decisions for themselves, the Skrmetti decision will no doubt encourage some states to try to ban gender-affirming care for anyone altogether.

Skrmetti will further erode the rights to privacy and liberty already weakened by the decision three years ago to overturn Roe v. Wade. It bodes ill for the very ideas we hold to be fundamental. It is another in a series of decisions that diminishes the Constitution—an ode to liberty—to a grab bag of conflicting positions and murky language, ripe to be exploited.

During its next term, the Court will hear a new case that contemplates queer rights, one that would legalize conversion therapy nationwide. That would put even more queer people at risk of psychological and physical cruelty, even in places where they now have legal protection.

Advertisement

Queer people shouldn’t be denied the protection of the Constitution because of their identity, but that is the condition the Supreme Court has chosen to leave untreated. As has been the case throughout so much of our history, queer people remain at risk, and on guard.