Parental Rights May Be Only Path to Save Gender-Affirming Care

Immediate responses to oral arguments in US v. Skrmetti on Dec. 4 at the US Supreme Court reveal a rare agreement between proponents and opponents of legal bans on providing trans minors with puberty blockers and hormone therapies. Both sides now predict that Tennessee’s legal ban, called SB1, will survive the challenge to its constitutional validity.

I agree with this general interpretation, but I also believe there is more to learn from the oral arguments. Like others, I acknowledge there are unlikely enough votes to support subjecting SB1 to heightened rather than minimal judicial scrutiny.

During the hearing, only Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson expressed concern about the conflict between our Constitution’s promise of equal protection under the laws and SB1’s denial of medical care based on patients’ sex.

By contrast, the justices on the conservative side were united in showing no willingness to acknowledge that the law creates sex-based classification and thus should be subjected to heightened scrutiny. Their disregard of this issue—despite the law’s clear distinction between those who “appreciate their sex” and those who “are disdainful” of it—is what generated the consensus regarding the case’s probable outcome.

However, beyond this consensus, it is notable that while the liberal justices spoke in one voice against the legal ban, the conservative members of the court demonstrated far less unity in favoring it. Most evidently, one of them didn’t speak at all—Justice Neil Gorsuch.

Only four years ago, Gorsuch stated in Bostock v. Clayton County that it’s impossible to discriminate against a person for being transgender without discriminating based on sex. That alone might not matter much because even if Gorsuch voted with the liberal justices—which is quite uncertain—there still isn’t enough support to invalidate SB1 based on discrimination arguments.

Still, the five conservative justices who spoke differed in their approach. Justices Samuel Alito and Clarence Thomas actively highlighted possible medical justifications for SB1. Chief Justice John Roberts didn’t go as far. Instead, he sounded reluctant to protect trans minors in what he called an “area of medical nuances,” notwithstanding his vote in support of transgender workers’ rights in Bostock.

Justices Amy Coney Barrett and Brett Kavanaugh also showed no inclination to embrace what conservatives call “gender ideology” by accepting discrimination claims under the Equal Protection Clause. Yet, they added an independent inquiry, highlighting their awareness of the risk that SB1 poses to parental rights.

Barrett led this line of questioning. She first put the issue on the record by asking Solicitor General Elizabeth Prelogar, “Do you agree with me that the resolution of this case has no impact on the parental rights claim that the Sixth Circuit also addressed?”

Barrett then further clarified her point, adding, “Even if we decided that this wasn’t a sex-based classification,” that wouldn’t “prevent parents from still asserting the substantive due process right.”

Next, Kavanaugh asked Tennessee’s Solicitor General, J. Matthew Rice, to address the other side’s concern about parental decision-making: “Why not trust parents rather than the state.” Barrett followed up on this question and requested Rice’s confirmation that “the parental rights question is not before the Court” and, therefore, it “would be open to parents to continue to press that point in other cases.”

This special attention to parents’ rights isn’t surprising. The issue has been close to the hearts of many conservatives who have long relied on parental rights in matters like homeschooling and vaccinations.

Recently, conservative parents have raised claims based on their rights in the context of gender identity. They have opposed, for example, school policies about students’ gender identity that they see as undermining their parental control of the upbringing of their children. And just yesterday, the Supreme Court denied one such petition, with the support of Roberts, Gorsuch, and Barrett, and against the stated objections of Kavanaugh, Alito, and Thomas, who would have granted the petition.

As the split between the conservative justices in yesterday’s decision reflects, they are divided on this point. Specifically, in debates concerning legal bans on gender-affirming care, some conservative judges, politicians, and activists have voiced a slippery slope objection, cautioning that permitting state overreach in this context would legitimize additional intrusions that are less agreeable to conservatives.

All this doesn’t suggest the Supreme Court will recognize transgender rights based on the Equal Protection Clause. Skrmetti may still end up with an ideological 6-3 decision that opens the door to additional sex-based classifications. And yet, the conservative sensitivity around parental rights that surfaced during the hearing could allow the court to reach a different outcome.

This is especially relevant if the incoming Trump administration abandons the current government’s petition. While such a move will end the litigation of the government’s petition, a coalition between liberals and some conservatives could emerge to grant the petition of the minors and their families. Since this petition included a challenge to SB1 under the Due Process Clause that protects parents’ rights to direct the medical treatment of their children, granting it would allow the court to shift the doctrinal focus from discrimination to state infringement on fundamental rights.

Respecting parents’ decisions, provided they are trustworthy and supported by doctors, might offer some conservative justices a way to minimize harm to trans minors without reference to equality. It could alleviate Roberts’ apprehensions regarding ruling on medical issues. It could also help Kavanaugh, who raised concerns that discrimination analysis would lead to transgender rights in the context of sports, reaching a narrow decision based on trusting parents on health matters, to which Barrett might join. It could further appeal to Gorsuch, allowing him to avoid the undermining of his decision in Bostock.

The oral arguments in Skrmetti confirm my earlier prediction that a parental rights approach might be the only way to secure gender-affirming care for minors in a court controlled by conservatives.

The case is United States v. Skrmetti, U.S., No. 23-477, argued 12/4/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

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Hila Keren is a professor at Southwestern Law School. She studies inequalities created or supported by the law while proposing and advocating necessary reforms.

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