Constitutional Analysis of State Laws Restricting Gender-Affirming Care for Minors

Tennessee enacted SB 1 in 2023, prohibiting healthcare providers from performing or administering gender-affirming medical treatments to minors, including puberty blockers, cross-sex hormones, and surgical procedures for the purpose of treating gender dysphoria. The law provides exceptions for treatments of precocious puberty and other conditions not related to gender identity, and includes a delayed effective date that allowed minors already receiving treatment to continue under certain conditions. Similar laws have been enacted in more than 20 states, creating a nationwide legal and political battle over the regulation of medical care for transgender youth.

The United States brought suit challenging SB 1 under the Equal Protection Clause of the Fourteenth Amendment, arguing that the law discriminates based on sex because it prohibits treatments when provided for the purpose of gender transition but permits the same treatments for other purposes. The Sixth Circuit upheld the law, and the Supreme Court granted certiorari in United States v. Skrmetti, making it the first case in which the Court will directly address the constitutionality of restrictions on gender-affirming care for minors. This opinion provides the state's analysis of the constitutional issues in advance of the Supreme Court's consideration.

The equal protection challenge centers on the level of scrutiny applicable to the classification created by SB 1. The government argues that the law classifies based on sex because it restricts treatments when used for gender transition purposes but permits the same treatments for cisgender purposes, making sex the determining factor. Under this view, the law is subject to intermediate scrutiny under United States v. Virginia (1996), which requires an exceedingly persuasive justification for sex-based classifications. The state argues that the law classifies based on purpose of treatment rather than sex, and that this classification is subject to rational basis review because it does not target a protected class.

The opinion endorses the rational basis framework, arguing that SB 1's classification between gender-affirming and non-gender-affirming uses of the same medications is analogous to other medical regulations that restrict particular treatments based on their purpose or context. The state's legitimate interests include protecting minors from potentially irreversible medical interventions, ensuring that medical treatments for children are supported by adequate evidence of safety and efficacy, and preserving parental decision-making by establishing baseline protections that parents cannot waive. The opinion argues that these interests satisfy rational basis review and would likely satisfy intermediate scrutiny as well.

The parental rights challenge argues that SB 1 violates the fundamental right of parents to make medical decisions for their children, as recognized in cases such as Troxel v. Granville (2000) and Parham v. J.R. (1979). The opinion responds that parental rights in the medical context are not absolute and that the state has long exercised its parens patriae authority to regulate medical treatments for minors, including age restrictions on certain procedures, informed consent requirements, and the prohibition of harmful practices. The opinion argues that SB 1 falls within the state's traditional authority to establish guardrails on medical treatments available to children, particularly where the treatments involve significant irreversible effects.

The substantive due process challenge asserts that transgender minors have a fundamental right to access gender-affirming care. The opinion argues that no court has recognized such a right and that the criteria for recognizing a new fundamental right under Washington v. Glucksberg (1997), which require that the right be deeply rooted in the nation's history and tradition and implicit in the concept of ordered liberty, are not satisfied. The regulation of medical treatments for minors has been a traditional function of state government, and the prohibition of specific treatments does not implicate a fundamental right.

SB 1 is rationally related to the state's legitimate interests in protecting minors from potentially irreversible medical interventions and in ensuring the safety and efficacy of medical treatments for children. The law's classification based on purpose of treatment, rather than sex or transgender status, is a permissible exercise of the state's regulatory authority over medical practice. The law does not violate parental rights or substantive due process because the state has broad authority to establish minimum protections for minors in the medical context. The opinion recommends a robust defense strategy that emphasizes the state's traditional regulatory authority and the rational basis for the challenged classification.

This opinion prepares the state for argument before the Supreme Court and provides a comprehensive legal analysis that will inform the national debate over gender-affirming care restrictions. Healthcare providers in Tennessee and other states with similar laws must comply with the prohibition on gender-affirming treatments for minors and should consult legal counsel about the scope of the exceptions. Families of transgender minors should understand the current legal landscape and should consult both legal and medical professionals about their options. The Supreme Court's eventual decision will have profound implications for the regulation of gender-affirming care nationwide and may establish important precedent regarding the level of scrutiny applicable to classifications based on transgender status.