In That Case: United States v. Skrmetti (Podcast)

In the Public Interest is excited to continue In That Case, its third annual miniseries examining notable decisions recently issued by the US Supreme Court. In this episode, host Felicia Ellsworth speaks with WilmerHale Partner Andrew Rhys Davies and Senior Attorney for the ACLU's National LGBTQ and HIV projects Josh Block about United States v. Skrmetti. The case considers whether a Tennessee state law banning gender-affirming medical care for transgender youth violates the Constitution's Equal Protection Clause.

Davies and Block unpack the legal reasoning behind the Supreme Court's 6–3 ruling, including the international context highlighted in WilmerHale's amicus brief. Block also reflects on the decision's potential impact on future civil rights litigation and its immediate consequences for the transgender community and access gender-affirming healthcare.

Related Resources

• SCOTUSblog: United States v. Skrmetti
• WilmerHale Files Supreme Court Amicus Brief in Support of Transgender Rights

Episode Transcript

Felicia Ellsworth: Welcome to In the Public Interest, a podcast from WilmerHale. My name is Felicia Ellsworth and I'm a partner at WilmerHale, an international law firm that works at the intersection of government, technology and business.

Today's episode is the latest installment of our Supreme Court miniseries, where we dive into the most hotly contested decisions coming out of the Supreme Court this term and discuss the implications of the Court's rulings going forward. For today's episode, we'll be discussing the Supreme Court's recent decision in United States v. Skrmetti, a case about whether Tennessee's ban on gender-affirming care for minors violates the Constitution's Equal Protection Clause. On June 18, the court issued its opinion, ruling 6-3 in favor of the state of Tennessee and against the plaintiffs, with the three liberal-leaning justices dissenting. This case has sparked national debate about the rights of transgender youth and the role of states in regulating medical care.

Joining me to talk about this decision are Andrew Rhys Davies and Josh Block. Andrew is a partner in WilmerHale's New York office who specializes in complex securities matters. Before joining the firm, Andrew served as Assistant Solicitor General for the state of New York, representing the state and its agencies in appellate litigation before both state and federal courts. Andrew has extensive trial and appellate experience, including arguing before the United States Supreme Court in 2022. Andrew led a team at Wilmer Hale in filing an amicus brief in support of the petitioners in Skrmetti on behalf of 11 nonprofit organizations from around the world. Andrew, thank you so much for joining us on this episode of our Supreme Court miniseries.

Andrew Rhys Davies: Felicia, thank you for inviting me to come talk about this and a shout-out to our colleagues who worked with me on this: Charlie Bridge, Eric Hawkins, Anna Mizzi and Emily Brody-Bizar.

Felicia Ellsworth: Great. Thank you. We're also really lucky to be joined by Josh Block from the American Civil Liberties Union. Josh is a senior attorney with the ACLU's National LGBTQ and HIV projects, and has litigated some of the most influential cases involving LGBTQ rights, including Obergefell v. Hodges and United States v. Windsor. He has been named one of the best LGBT lawyers under 40 by the LGBT Bar Association and has served as a visiting lecturer in law at Yale Law School. Josh, thank you so much for joining us and being part of today's discussion.

Josh Block: I'm very happy to be here.

Felicia Ellsworth: All right. So, Josh, let's start with you. The case that we want to talk about, Skrmetti, centers on a 2023 Tennessee law that prohibited sex transition treatments for minors. In passing that law, the Tennessee legislature argued that the potential risks of such treatments outweighed their benefits. Several transgender minors and their parents then sued the state before the law could take effect. Could you just walk us through how the case progressed from the initial lawsuit to the Supreme Court and when the ACLU got involved?

Josh Block: Sure. I'd be happy to. So, Tennessee was one of the first states to pass one of these laws. Arkansas was the first and its law was enjoined. Alabama passed one shortly around that time. Right now, almost half the states have these laws, but they were really unheard of a couple of years ago. So when Tennessee passed its law, the ACLU, Lambda Legal, the ACLU of Tennessee, all joined in suing on behalf of three patients and their parents, and also a provider in Tennessee who provides gender-affirming care to people over 16. Like every other case that had been decided at the district court level, we won a preliminary injunction enjoining the law and we were very pleased that the DOJ under the Biden Administration filed a motion to intervene in the case and also support our challenge. We then hit a roadblock at the Sixth Circuit, which split with the Eighth Circuit and upheld the constitutionality of the statute. And then we and DOJ asked the Supreme Court to review. We had two sets of claims. We had equal protection claims and we also had due process claims on behalf of the minors. The DOJ just asked the Court to accept the Equal Protection claims, and that's what the Court did.

Felicia Ellsworth: So, we'll get into some of the details, but Andrew, before we do, can you please just describe what happened in the Supreme Court? Ultimately, it upheld Tennessee's ban on at least certain types of transition treatments. Maybe you can help our listeners understand the Court's reasoning and how it reached that conclusion.

Andrew Rhys Davies: So, the bottom line ruling was that Tennessee's law did not violate the Equal Protection Clause. And to get there, there were a few steps. The Supreme Court first concluded that Tennessee's law was not subject to heightened scrutiny. The Supreme Court determined that Tennessee's law did not discriminate based either on sex or transgender status. Instead, according to the Supreme Court majority, the Tennessee law discriminated based on age because the ban applied only to those under 18, and based on medical purpose, meaning that it prohibited certain therapies only when used to treat gender dysphoria or related conditions. And so having concluded that there was no need for heightened scrutiny, the court did not need to decide whether transgender individuals are either a suspect or a quasi-suspect class. Having addressed that issue, the Court then turned to look at the law under the rational basis review standard and upheld it because it was rationally related to the state's stated interest in protecting transgender youth from potential adverse consequences of these therapies, particularly given disagreements about their safety.

Felicia Ellsworth: Andrew, during the oral argument and also in the opinion there were some lengthy discussions about how other countries, particularly in Europe, have handled transgender care for minors, and this was a major focus of the WilmerHale team's amicus brief. Could you tell us a little bit more about how you and the team got involved in this case and why it was important to bring an international perspective?

Andrew Rhys Davies: It was actually the proponents of these laws who originally raised the international perspective as evidence that their bans were warranted. But there was a real concern that what was happening in other countries was being misunderstood and misrepresented. So the purpose of our amicus brief was to tell the Court what was actually happening.

We filed amicus briefs in the Sixth, Seventh, Eighth, Ninth and Tenth Circuits before the case reached the Supreme Court on behalf of a group of nonprofits based in Europe, Australia, New Zealand and Mexico, and those organizations' missions involve protecting the rights of transgender people. And broadly what we explained to the Court is that the other jurisdictions were looking at these issues, controls generally were being heightened, but none of these jurisdictions had enacted the kind of wholesale ban that Tennessee had. And for the most part, decisions were still in the hands of patients and their doctors and their parents.

Felicia Ellsworth: And Justice Sotomayor actually cited your amicus brief in her dissent, which is a rare honor, so congratulations for that. In particular, she cited the clarification that your brief offered that while some European countries, I think Norway and Sweden and England, had continued to research the risks and benefits of these transgender youth treatments, none of those countries has categorically banned doctors from providing medically necessary gender-affirming care. So, Andrew, I'm interested in your thoughts on how the majority opinion reflected the state of law and research internationally and whether it was accurate or not.

Andrew Rhys Davies: In fairness, although the majority in the concurring opinions didn't actually cite our brief, I think they did, more or less, accurately capture the state of play in the other jurisdictions that we discussed. Where they departed with Justice Sotomayor was on the question of how that affects the legal outcome, and having determined that the Tennessee law was subject only to deferential rational basis review, it was pretty easy for the majority to conclude that Tennessee had simply made a different but rational choice about how to address a shared concern.

Felicia Ellsworth: As you noted, the Court's majority found that the law didn't discriminate based on sex or transgender status, which is a finding that the dissent strongly challenged, viewing the law as clearly drawing distinctions on both grounds. So, Josh, how do you interpret the fact that the majority and the dissent, obviously working from the same legal framework, arrived at sharply different views of the Equal Protection analysis here?

Josh Block: I think one thing that the majority did not do was repeat the mistakes of the Sixth Circuit, which made some sweeping statements that if the law applies equally to members of both sexes, then it can't be sex discrimination. So, we were very happy that everyone seemed to agree that was not how Equal Protection works.

I see the majority as carving out an exception to that principle when it comes to medical treatments. What I find really interesting is in Bostock, the Court said that discrimination based on transgender status is sex discrimination because it's intrinsically bound up in sex. Now, Skrmetti says some medical treatments and procedures are uniquely bound up in sex, and that's why we're not gonna treat them as sex discrimination because there's so many medical treatments that actually are keyed to your sex that that would make a lot of medical treatment sex classifications. Our argument was, sure there are sex classifications, but they can usually pass heightened scrutiny. A law saying you have breast cancer screening for people assigned female at birth and not male at birth would pretty clearly pass heightened scrutiny as a general matter, but the majority decided to take a different tack and say we're just gonna carve out these sorts of medical treatments from the sex classification principle altogether.

Felicia Ellsworth: Now back to Bostock. Josh, as you mentioned, the Skrmetti decision comes just five years after that decision, which was a landmark ruling interpreting Title VII's ban on sex discrimination in employment to include sexual orientation and gender identity. Justice Gorsuch rather famously wrote the Bostock opinion, but he was silent, as I understand it, during the oral argument in Skrmetti. He joined the majority opinion, which found that Bostock was inapplicable because it involved Title VII and not the Equal Protection Clause. Given Bostock's significance for LGBTQ rights, Josh, were you surprised it didn't carry more weight here? And what do you think the role will be of that precedent in shaping future transgender rights cases in the wake of this decision in Skrmetti?

Josh Block: I think that Skrmetti largely leaves Bostock where it found it. When the Court took Skrmetti, there was a lot of expectation that it would resolve things like, is discrimination against transgender people sex discrimination outside of the context of Title VII? Or what's the standard of scrutiny for judging discrimination against transgender people? Skrmetti basically dodged all those questions by just saying that it didn't view this as a sex classification or as a transgender status classification at all.

It carves out a narrow exception to the Equal Protection Clause's treatments of classifications in the context of medical care. But it completely leaves open whether Bostock applies to Equal Protection challenges outside of the medical care context. If you fire someone for being transgender and you are a city government, that should violate the Equal Protection Clause, just as it violates Title VII. We don't think that anything in Skrmetti forecloses that or changes it. And Skrmetti expressly declines to consider how Bostock applies to other statutes like Title IX. So, I think we're sort of where we were a year ago in knowing how Bostock applies outside the Title VII context.

Felicia Ellsworth: So, let's talk for a minute about how Skrmetti might apply, because in addition to Tennessee, there are, I think, 25 other states that have enacted laws similar to Tennessee's relating to gender-affirming care for minors. But there are also a lot of other cases percolating around that involve transgender rights and issues, including two cases that the Supreme Court has agreed to hear in its next term. How do you think about legal avenues for advocates who are challenging laws that affect transgender individuals post-Skrmetti?

Josh Block: I think that the avenues that are left open after Skrmetti are basically the same that were opened before Skrmetti in every context besides healthcare.

First, I'd say in the healthcare-specific context, Skrmetti still leaves open what would happen if the evidence showed that a ban was passed specifically because of a desire to discriminate against transgender folks. That would be a sex classification, or at least a transgender status classification, and Skrmetti doesn't foreclose the challenge there.

Skrmetti also doesn't necessarily resolve what a Title VII claim based on healthcare discrimination would be, because Skrmetti sort of infamously relies on the decision in Geduldig from the early '70s that said pregnancy discrimination isn't sex discrimination, and they sort of extended that reasoning to this context of gender-affirming care. But Geduldig doesn't control Title VII. Congress overrules that reasoning in the Pregnancy Nondiscrimination Act, so a state's employee health plan that excludes gender-affirming care might still be sex discrimination.

In the context of other statutes, we believe that any statute that protects discrimination against individuals, not groups, based on sexual orientation and transgender status and also has a but-for causation standard, should be interpreted consistently with Bostock. And there are currently four circuits that, one way or another, treat discrimination against transgender people as subject to heightened scrutiny, and we don't think that Skrmetti overrules those precedents. So, it's always scary these days to predict what the Supreme Court will do in its next case, but in terms of what avenues are open in the lower courts, I think all those same avenues, for the time being at least, are open.

Felicia Ellsworth: Yeah, I certainly didn't have the resurrection of Geduldig on my bingo card for this term, but there we have it. What are you and your colleagues at the ACLU hearing from the communities that are affected by the Skrmetti decision and affected by anti-transgender laws that are going into effect in various states?

Josh Block: I think this is a really devastating time for a lot of communities, but for trans folks in particular. These state bans have turned families into refugees, leaving from one state to another to get care for their kids, and now that's followed up with another punch by the Trump Administration trying to bully providers of gender-affirming care in places like California or DC or Boston to shutting down care too. We have a bunch of challenges against the Trump Administration for that action, which we think is completely not statutorily authorized.

That's also just one component of an all-out assault on the existence of transgender people. The Trump Administration has an executive order that essentially declares that it's the public policy of the government to say that transgender people don't exist. To ban people from having passports matching their gender identity. They call it promoting gender ideology, which apparently refers to anything that relates to acknowledging the existence of trans people. So, I think that it's hard to overstate what a dire situation it is for folks right now.

Felicia Ellsworth: Before we wrap up, any advice that you'd provide, Andrew, to attorneys who maybe have been motivated in the wake of Skrmetti to get involved in public interest work or impact litigation like your role in this case while also being in private practice?

Andrew Rhys Davies: I'd encourage everyone to carve out time to do this work. It's a win-win. You can have an outsized positive impact on someone's life or on a cause or a principle that matters to you. It's a service to the law and often to the courts, and you learn new skills in areas that you perhaps wouldn't otherwise encounter in your daily practice.

Felicia Ellsworth: Well, Josh, Andrew, thank you so much for joining us today. We really appreciate your insights and your work on this case. Thanks for joining us on the podcast.

Josh Block: Thank you.

Andrew Rhys Davies: Thank you.

Felicia Ellsworth: And thank you to our listeners for tuning in to this episode of In the Public Interest. We hope you'll join us for our next episode. If you enjoy this podcast, please take a minute to share with a friend and subscribe, rate and review us wherever you listen to your podcasts. If you have any questions regarding this episode, please email them to us at Inthepublicinterest@wilmerhale.com. For all of our WilmerHale alumni in the audience, thank you for listening. We are really proud of our extended community, including alumni in the government, the nonprofit space, academia, other firms and in leadership positions and corporations around the world. If you haven't already, please join our alumni center at alumni.wilmerhale.com so we can stay better connected. Special thank you to the producers of this episode, Shanelle Doher, Jacqueline Vieira and Eric Meinerding. Sound engineering and editing by Bryan Benenati, marketing by Andy Basford and his team, all under the leadership of executive producers Kaylene Khosla, Matt O'Malley and Jake Brownell. See you next time on In the Public Interest.