Published June 18, 2025
In an important ruling today in United States v. Skrmetti, the Supreme Court ruled by a vote of 6 to 3 that a Tennessee law that that bars health-care providers from administering certain medical procedures to children with gender dysphoria does not violate the Equal Protection Clause. Chief Justice Roberts wrote the majority opinion for five justices. Justice Alito concurred in part and concurred in the judgment. Justice Thomas wrote a concurring opinion, and he also joined a concurring opinion by Justice Barrett. The three liberal justices dissented.
I’ll start by exploring the difference between the Chief and Justice Alito.
The Chief concludes that the Tennessee law does not classify on the basis of transgender status and therefore does not reach the question whether classifications based on transgender status are subject to heightened scrutiny. Alito, by contrast, is “uneasy” with the conclusion that the law does not classify on the basis of transgender status. He would assume for the sake of argument that it does, and he would hold that classifications based on transgender status are not subject to heightened scrutiny. (Justice Barrett, joined by Justice Thomas, likewise concludes in her concurring opinion that classifications based on transgender status are not subject to heightened scrutiny.
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Edward Whelan is a Distinguished Senior Fellow of the Ethics and Public Policy Center and holds EPPC’s Antonin Scalia Chair in Constitutional Studies. He is the longest-serving President in EPPC’s history, having held that position from March 2004 through January 2021.
