Free to Ban

First impressions of the Supreme Court's ruling in US v. Skrmetti

Two years ago a federal judge in Arkansas found that state’s ban on pediatric gender medicine (PGM) to be unconstitutional. Media coverage of the ruling was shallow; many seemed to assume the judge was right, even if they were very skeptical of PGM. But the decision was bonkers, actually, as I found when I dug into it.

As the states racked up wins in other courts and more damning facts about PGM came to light, the conventional wisdom shifted. Now observers on all sides expected the US Supreme Court to let PGM bans stand.

It got the chance in US v. Skrmetti, a case about Tennessee’s ban (“SB1”). At oral argument the Court’s liberal minority sounded unhinged. Justice Sonia Sotomayor casually referred to people choosing their sex and likened cross-sex hormones to aspirin; Justice Ketanji Brown Jackson repeated absurd analogies to interracial marriage four times, apparently trying to stigmatize PGM’s opponents.

The Court’s ruling came down yesterday: 6-3 along partisan lines, rejecting the arguments that SB1 is unconstitutional. Chief Justice John Roberts, a low-key writer known for trying to defuse hot controversies, drafted the majority opinion. Some of his colleagues penned bolder concurrences.

Sotomayor wrote “in sadness” for the liberals, comparing Tennessee’s position to Virginia’s 1966 defense of its ban on interracial marriage. No, she never acknowledged that black and white people are the same whereas male and female bodies are different.

This post is about Skrmetti.

The justices had lots of opinions but they all fell along partisan lines.

The pro-trans parties in Skrmetti are kids, their moms, and a doctor (plaintiffs). The USA was pro-trans at the time of oral argument but has now changed sides thanks to the change of administration. I’m going to break protocol and refer to that whole team as the ACLU because those lawyers (representing the plaintiffs alongside an elite commercial law firm) are the actual driving force behind this case. ACLU lead counsel Chase Strangio actually seems to be friends with the people-pleasing Solicitor General who argued for the Biden administration.

Why It’s Not Discriminatory to Keep Kids Off Drugs

The ACLU argued that SB1 discriminated by sex because it barred different drugs for boys than for girls, and by “transgender status” because it restricted drugs related to transgender identity. (The ACLU did not challenge SB1’s surgery provisions.) Each of those grounds, it argued, triggered “heightened scrutiny,” which imposes a higher bar on Tennessee in defending the validity of the law.

The Supreme Court holds that SB1 does not treat people differently on either of those bases. Rather, it treats people differently based on their age and the “medical purpose” they want the drugs for (“sex transition” as opposed to, for example, precocious puberty). These bases don’t trigger heightened scrutiny. Tennessee only needs to show that SB1 has a “rational basis.”

SCOTUS could have kicked it back to the district court to figure out whether Tennessee had a rational basis. Instead it cuts to the chase and decides on its own, largely based on the legislature’s findings, that the law is kosher.

Along the way, SCOTUS finds that the legislature’s rationale was not a pretext for “invidious discrimination.”

Mildred and Richard Loving, an interracial couple who got married because puberty blockers were legal.

What Is a Woman? Someone Who Only Exists in Right Wing Concurrences

Famously (within the TERF blogosphere) the Supreme Court decided its one previous big trans case, Bostock, without defining “transgender” or “gender identity.” In a ruling by Justice Neil Gorsuch, it loosely defined “sex” as relating to “biological distinctions between male and female.” That played into the ACLU’s hands because its lawyers portray sex as an arbitrary melange of characteristics.

In Skrmetti, SCOTUS again declines to tell us what a woman is. But it drops tantalizing clues.

Roberts’ majority opinion defines transgender people as those whose “gender identity does not align with their biological sex.” He does not define gender identity or sex.

In some ways Roberts implies sex is immutable. For example, he never uses terms like “assigned sex” or “birth sex,” and he approves of Tennessee’s position that “kids benefit from additional time to ‘appreciate their sex’ before embarking on body-altering paths.” This suggests kids have a sex — one sex no matter what. On the other hand, Roberts repeatedly refers to “sex transition treatments.” This suggests the possibility of sex change. Is he, like Gorsuch, falling into the ACLU’s trap of confusing sex with sex traits?

In a concurrence, Justice Samuel Alito – known as an archconservative – cites definitions of “sex” in use at the time the Court began deciding sex discrimination lawsuits in 1971. From here he concludes that “‘sex’ is the status of having the genes of a male or female.” Pretty good! But not a single one of his colleagues joins him. This glass is one-ninth full.

Alito also addresses gender head on, noting that it has various meanings. Quoting the 2025 Cambridge English Dictionary, he argues the Court has never

“used ‘gender’ in the sense in which it is now sometimes used, i.e., to denote ‘a group of people in a society who share particular qualities or ways of behaving which that society associates with being male, female, or another identity.’”

Alito misses the scandal. The ACLU doesn’t define gender that way – it sneakily doesn’t define gender at all and encourages judges to project onto the empty word. That’s key to how it tricks judges into finding that boys are girls.

White Lies Matter

Skrmetti seems like a smooth decision on the surface. But it contains errors that hint at corrupt logic — and the ACLU might exploit some of them in future lawsuits.

Roberts characterizes 1979 transsexual medical guidelines (SOC1) as providing “that hormonal and surgical sex reassignment treatments should be administered only to adults.” In fact SOC1 sanctioned treatment for one type of person under age 18: those “declared by the courts as legal adults[.]”

Why gloss that over? I think Roberts is grasping onto the moderate myth that gender medicine used to be cautious and rational but lately has gone off the rails. It’s a comforting narrative because it means you don’t have to tackle the entire trans enterprise. But the truth is, gender doctors have always practiced on very young people (particularly "street kids" who may be prostitutes) and they have always cared more about law than medicine.

In the course of drawing a neat syllogism, Roberts claims “only transgender individuals seek puberty blockers and hormones for [gender dysphoria].” The ACLU will quote this snippet in lower courts to argue that everyone who pursues gender drugs is driven by an innate gender identity rather than, e.g., social contagion.

It’s key that Tennessee had noble reasons for passing SB1 – not just animus toward “transgender” people. Roberts claims the ACLU hasn’t “argued that SB1’s prohibitions are mere pretexts designed to effect an invidious discrimination against transgender individuals.” I think that’s incorrect. Here’s the ACLU’s brief right after laying out the law regarding invidious discrimination:

the text of SB1 openly declares precisely such an impermissible purpose: to require transgender minors to conform to their sex assigned at birth by banning treatment that would enable them to “live as” and “identify with” an “inconsistent” gender identity. ... The fact that SB1 … enforce[s] Tennessee’s preference for gender conformity compels heightened scrutiny.

The Supreme Court can make things up about parties’ briefs if it wants to. The problem is that the ACLU has made stronger, more explicit “animus” arguments about other states where the legislative debate was spicier, like Florida. Could those laws, although worded similarly to SB1, be unconstitutional? Roberts emphasizes in this same passage that state bans pass constitutional muster “under these circumstances” – where there is no invidious discrimination.

And finally, Roberts uses preferred pronouns. Because lawyer culture is hierarchical and Roberts sits at the apex of the American legal system, this will dog advocates who are pushing back on the practice in lower courts. Arguing for the right to use sex-based pronouns will be harder; arguing that preferred pronouns are perjury will be practically impossible.

What’s Next

This decision doesn’t vaporize all the litigation over PGM bans. Most (all?) of the challenges include parental rights claims, which this decision doesn’t touch. (Those arguments will fail eventually.) Some of the lawsuits are proceeding under state constitutions, as in Montana. (They might prevail.) And Roberts left the door ajar for “invidious discrimination” arguments.

So we might see the ACLU stagger onward in its quest to make child castration and physician-assisted steroid addiction a constitutional right. “Our fight is so far from over,” ACLU attorney Sruti Swaminathan said yesterday. The decision “leaves open so many avenues for continued litigation,” according to Strangio.

If you think they’re just posturing, ask yourself: what else is the ACLU going to do with its tens of millions of dollars in gender funds? These lawyers’ raison d’etre is to fight about the Constitution in the highest venue that will take them. And their options for trans lawsuits aren’t infinite. Rival LGBTQ orgs cover some of the ground and the task of destroying girls’ sports is increasingly shouldered by blue state taxpayers.

T makes it hard or impossible for women to cry. Chase Strangio handles sad days by fulminating on Instagram.

It appears the trans lobby wants to scapegoat Chase Strangio and a few other “radicals,” like the former HHS official Admiral Rachel Levine, for disgracing it in Skrmetti – as though the movement for constitutionalized sex mimicry is fundamentally sound and had some plausible path to victory if only it had slowed its roll. This narrative is meritless. But the New York Times is eagerly printing it.

Skrmetti could have wiped out precedents in the 4th and 9th Circuits holding trans to be a quasi-protected class. Alas, only the three concurring conservatives wanted to do so — the other three left the question alone. Kids are still entitled to use opposite-sex bathrooms in states like Virginia if they say they are “transgender.”

In the next few weeks the Court will rule on another trans case, Mahmoud, about whether religious parents have a right to opt their young children out of “LGBTQ” lessons. I’ll wait until then before psychoanalyzing the justices. For now, I’m going to enjoy Juneteenth.

This post was lightly edited on June 26, 2025.