Pick Your Precedent: Bostock, Dobbs, and the Uncertain Reach of Intermediate Scrutiny in United States v. Skrmetti

Abstract

The Supreme Court will yet again wade into highly politically charged waters this term when it decides United States v. Skrmetti, a case about gender-affirming healthcare for minors. More specifically, Skrmetti will decide whether SB1, a 2023 Tennessee law that bans gender-affirming care for individuals below age 18, violates the Fourteenth Amendment\u27s Equal Protection Clause. The Tennessee Plaintiffs and the Biden administration, which intervened on their behalf, have argued that SB1 unconstitutionally discriminates on the basis of sex and transgender status. In response, Tennessee has argued that SB1 only uses age and medical purpose—not sex or transgender status—to delineate between lawful versus unlawful medical care. Two recent blockbuster cases from the Court—Bostock v. Clayton County, which ruled that Title VII\u27s ban on sex discrimination in employment covered discrimination based on sexual orientation and transgender status too, and Dobbs v. Jackson Women\u27s Health Organization, which rejected the constitutional right to abortion—will likely influence the Court\u27s decision. This Commentary discusses how the Court should consider these cases and why it should ultimately find that SB1 violates the Equal Protection Clause. That said, this Commentary also acknowledges that the more likely outcome is a ruling for Tennessee and explores the potential impacts of such a ruling