Tennessee’s ban on gender-change treatments for kids is constitutional, the U.S. Supreme Court ruled in a 6-3 split Wednesday in the case of U.S. v. Skrmetti.
As far as federal court challenges go, the ruling bodes well for Wyoming’s ban, which is worded similarly. Like the Tennessee law, it bans cross-sex surgeries, puberty blockers and cross-sex hormones for kids.
But the high court’s opinion doesn’t answer the question of whether Wyoming’s ban fits with the state constitution – and that avenue remains open for legal challenge.
For proponents of Wyoming’s ban, the opinion is a testament to sanity, and for opponents, it’s an attack on parental rights.
State Rep. Rachel Rodriguez-Williams, R-Cody, who chairs a socially-conservative group of Republican lawmakers called the Wyoming Freedom Caucus, told Cowboy State Daily the ruling is a green light for Wyoming to strengthen its own laws in this area.
“It’s a great opinion from the Supreme Court,” she said. “And I think that we can, and we should go further to protect children and families.”
Tennessee’s law gives people whose gender-change treatments have harmed them a mechanism to sue health care providers, whereas Wyoming’s law only allows for state medical board discipline or de-licensure of doctors who perform such procedures.
Wyomingites can expect to see the Freedom Caucus lead the charge for a private right of action like Tennessee’s, said Rodriguez-Williams.
Former state senator Anthony Bouchard, a Republican who represented Laramie County in 2024 championed Senate File 99, which is Wyoming's ban on child gender-change treatments. He told Cowboy State Daily on Wednesday that banning child-gender-change treatments is similar to keeping other dangerous elements, like guns or alcohol, away from kids.
“Fortunately, the Supreme Court took the position that it is a rational thought process to prohibit minors from changing their sex on a whim,” said Bouchard. “This is what civil government does, it makes the rules society lives under.”
But, Parents
State Rep. Ken Chestek, D-Laramie, conversely, expressed horror at the opinion.
“Gender dysphoria is a real thing. I know a lot of conservatives think it’s all made up, and it’s hooey – but it’s not,” he said. “Real people suffer from gender dysphoria.”
And sometimes that suffering is most acute at a young age, added Chestek.
“It should be up to the parent and the kid – and their medical professionals – to decide what is the best mode of treatment,” he said.
The high court decided that Tennessee’s ban doesn’t rely on sex-based classifications or mask an attempt at discriminatory, sex-stereotyped lawmaking. Rather, the opinion says, the ban hinges on the patient’s age, and the use of medical treatments for certain diagnoses, in this case, gender dysphoria.
As such, the law is subject to a friendlier standard of judicial review, called “rational basis,” under which state laws survive court challenges if they’re rationally related to the state’s findings on how to protect people’s welfare.
For Chestek, a retired law professor, all the finer points about whether Tennessee’s law was discriminatory aren’t the main issue.
The law was irrational either way, he said.
“I don’t think this passes rational basis scrutiny, so it doesn’t matter to me whether (transgender status) is a protected class or not” for the purposes of this ruling, he said. “It doesn’t make any sense… to take decisions like these out of the hands of medical professionals who know what they’re doing — to take these decisions out of the hands of the people affected.”
The plaintiffs in the case had argued similarly.
And one former, Republican, Wyoming lawmaker, Dan Zwonitzer of Laramie County, had joined other conservative-leaning public officials in filing an amicus brief in this case, to emphasize the parental rights argument.
For Chestek, the fact that a person still could challenge Wyoming’s ban under the Wyoming Constitution – particularly its promise of health care autonomy for adults and for parents making medical decisions for their children – is a silver lining.
The state has not been sued by anyone challenging Wyoming's statute, Gov. Mark Gordon's spokesman Michael Pearlman confirmed in a Wednesday email to Cowboy State Daily.
That Government
Sara Burlingame, executive director of LGBTQ advocacy group Wyoming Equality, told Cowboy State Daily it’s still “too soon” to tell if such a state-court challenge is brewing, and “hats bigger than mine will figure that stuff out.”
Burlingame, like Chestek, cast the court’s opinion as a licensure of governmental overreach into the domain of family. She urged Wyomingites to consider how restrictions on their children’s treatments would impact them.
“Everybody can recognize what it would feel like to have health care for their child be supplanted by the U.S. government,” said Burlingame. “Wyoming folks… would not want the U.S. government to come in, over the top, and compel them to treat a certain way.”
Some Legal Stuff
Tennessee’s law survives the Supreme Court’s review because it’s rationally related to Tennessee’s findings on why it’s needed, says the Wednesday opinion by Chief Justice John Roberts, which Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett joined, and Justice Samuel Alito joined in part.
Justice Sonia Sotomayor filed a dissent, joined by Justice Ketanji Brown-Jackson in full and Elena Kagan in part.
Tennessee concluded that gender-change treatments for kids are still laden with uncertainty and potential risk. And courts traditionally afford states “wide discretion” to legislate medical treatments where uncertainty persists.
“The voices in these debates raise sincere concerns: the implications for all are profound,” wrote Roberts.
The Equal Protection Clause of the 14th Amendment to the U.S. Constitution, which promises equal protection under state law across classes of people, “does not resolve these disagreements,” wrote the chief justice. “Nor does it afford us license to decide them as we see best.”
The high court in 2020, in a case called Bostock v. Clayton County, ruled that for employers to fire people for being gay or transgender would violate a federal employment law’s ban on workplace discrimination “because of” sex.
In Wednesday’s ruling, Roberts declined to opine on whether that connection exists outside of that particular workplace law. Which means he dodged – for now – the pervasive question of the past five years, of whether that connection applies to the education anti-discrimination law in Title IX.
He also declined to apply Bostock’s reasoning to this case.
Doing so would “invite sweeping consequences” and erode states’ ability to regulate medical treatments, in which sex is often intertwined as a biological necessity, Justice Clarence Thomas opined in a concurring opinion.
States would be discouraged from regulating sex-based medical treatments at all, wrote Thomas, which could implicate allowable drugs and treatments for anything from testicular cancer to pregnancy,
The question of which treatments should be allowed in a domain where the science is unsettled belongs to the people, and their state representatives, Thomas wrote:
“The Court reserves to the people of Tennessee the right to decide for themselves.”
While Roberts avoided the question of whether the Equal Protection clause should safeguard transgender status as a special class, Coney-Barrett didn't: she concluded in her concurrence, with Thomas, that it doesn't.
Kagan Says Absolutely Not
Kagan’s dissent counters Roberts’ assertion that the law hinges on age and medical diagnoses (gender dysphoria) rather than treating people differently based on their sex.
“Today, the Court considers a Tennessee law that categorically prohibits doctors from prescribing certain medications to adolescents if – and only if – they will help a patient ‘identify with, or live as, a purportedly identity inconsistent with the minor’s sex,’” wrote Kagan.
This discriminates against transgender adolescents, and conditions the availability of medications on the patient’s sex, she wrote.
Male but not female adolescents could take masculinizing drugs, and female but not male adolescents could take feminizing drugs, Kagan added.
All of this should raise the legal standard of review to “intermediate scrutiny,” a tougher standard than rational basis. That standard recognizes inherent differences between men and women but shuns “invidious discrimination” relying on sex stereotypes.
It’s “the core judicial tool to differentiate innocuous sex-based laws from discriminatory ones," wrote Kagan.
Clair McFarland can be reached at clair@cowboystatedaily.com.
