WASHINGTON, DC – Following oral argument at the Supreme Court this morning in United States v. Skrmetti, a case in which the Court is considering whether Tennessee’s ban on providing gender-affirming medical care to transgender adolescents violates the Equal Protection Clause of the Fourteenth Amendment, Constitutional Accountability Center (CAC) Director of the Human Rights, Civil Rights, and Citizenship Program David Gans issued the following reaction:

The Equal Protection Clause of the Fourteenth Amendment guarantees equality under the law to all persons without exception. Consistent with that guarantee, the Supreme Court has for decades repeatedly held that all sex-based classifications must be subjected to heightened judicial scrutiny.

Tennessee’s ban on gender-affirming medical care for transgender adolescents is unquestionably sex-based. Rather than regulating on a neutral basis, the legislature wrote a statute that uses a person’s sex to determine whether certain types of medical care are prohibited or not. As Solicitor General Elizabeth Prelogar told the justices, that is a “facial sex-classification, full stop.”

None of the justices said anything that meaningfully suggests otherwise. Instead, some of the Court’s conservative justices seemed to shrink from applying the Constitution’s protections against sex-based laws, suggesting courts should defer to legislative judgments in an area of evolving debate rather than give them a hard look to ensure they respect the right to equal protection of the laws.

But that is not the way the Equal Protection Clause works. The Fourteenth Amendment was added to the Constitution to check state-sponsored discrimination and vindicate the equality of all persons. Deferring to the state when it discriminates on the basis of sex would turn the Fourteenth Amendment’s promise of equality on its head.

CAC Vice President Praveen Fernandes added this reaction:

Time and time again during today’s oral argument, the discussion made clear that the Tennessee statute at issue, S.B. 1, contains a facial sex-classification. To not require this statute to be subject to heightened scrutiny would be to disregard the Constitution’s text and history, along with the Court’s own precedent. It would also be a betrayal of the Constitution’s promise of equality—a promise enshrined in the Fourteenth Amendment, and further developed in other amendments, including the Nineteenth Amendment.

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