Skrmetti: On the (Rational) Basis of Sex
- Sherrie Boutwell
- Jul 10
- 2 min read
Updated: Jul 24
On June 18, 2025, the majority of the United States Supreme Court held Tennessee’s law prohibiting access to gender-affirming care for certain minors was permissible under rational basis review. The Tennessee law at issue, SB1, forbids healthcare providers from providing puberty blockers or hormones to minors to allow them to: (1) identify or live with an identity inconsistent with their biological sex; or (2) treat “purported discomfort or distress” caused by identifying with a gender that is inconsistent with their biological sex. The Court determined SB1 was not subject to heightened scrutiny because it does not classify individuals on the basis of sex. Instead, it determined SB1 turned on “age” and “medical use” which are not suspect classifications. Applying rational basis review, the Court determined there were plausible reasons for SB1 (i.e., the ongoing debate between medical professionals regarding the benefits and risks of gender-affirming care for minors). Accordingly, without judging SB1’s “wisdom, fairness, or logic,” the Court held it does not violate the Equal Protection Clause of the 14th Amendment.
In Bostock v. Clayton County, the Court held that firing an individual for being gay or transgender violated Title VII, which prohibits firing an individual “because of” their sex. The plaintiffs urged the Court to apply Bostock’s reasoning in Skrmetti, arguing SB1 violated the 14th Amendment. The Court, however, declined to address whether Bostock’s reasoning applies outside of the Title VII context. The Court reasoned it did not need to because “sex is simply not a but-for cause of SB1’s operation.”
Looking at current cases working their way through the courts, other parties seeking to secure the right to transgender care will be impacted by Skrmetti. For example, on Monday, June 30, 2025, the Court remanded Folwell v. Kadel to the Fourth Circuit for further consideration in light of Skrmetti. Previously, the Fourth Circuit found plans covering medically necessary treatments for certain diagnoses but prohibiting them for diagnoses unique to transgender patients violated the 14th Amendment and Section 1557 of the Affordable Care Act (“Section 1557”). Section 1557 prohibits discrimination on the basis of sex in health programs or activities receiving Federal financial assistance or administered by an Executive Agency. As we’ll discuss in an upcoming blog post, whether Section 1557 prohibits discrimination on the basis of gender identity remains a hotly litigated issue—which may ultimately reach the Supreme Court for a number of reasons, including whether Bostock’s reasoning applies outside of the Title VII context.
Employers should stay up to date with the changing legal landscape which will continue to be shaped by ongoing litigation and new state laws. It is worth consulting with counsel prior to adopting new policies, and to review current policies, to help avoid costly litigation.
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This nuanced legal discussion emphasizes how convoluted standards (like 'rational basis') need a sequence of prompted analysis (like the easy jobs of peer review tasks in journal publishing services (formatting check, citation verification)). Both fields show how systematicity can help make rigorous review easier. Definitely an interesting parallel in designing accessible frameworks for esoteric domains!