Engineer's Guide to the 14th Amendment: Skrmetti

A review of the logic in the Supreme Court decision in US v Skrmetti

I'm not a lawyer, but I find US constitutional law fascinating. I've been listening to the Supreme Court oral arguments and reading their decisions for years. Many of the cases are surprisingly easy for a non-lawyer to follow along with.

The Supreme Court issued a decision recently in United States v. Skrmetti, a case challenging the constitutionality of a restriction on puberty-altering drugs. Here's a layman / engineer's guide to the constitutional concepts in the case and the reasoning in the decision.

Equal Protection Clause

The law enacting the restriction was challenged under the Equal Protection Clause of the 14th Amendment, which states:

[states may not] deny to any person within its jurisdiction the equal protection of the laws

The 14th Amendment was ratified following the Civil War, and ensured that people could not (legally) be denied rights based on race.

While racial discrimination was a clear motivator for passing the amendment, race is not mentioned in it. Consequently, Equal Protection arguments are used to challenge laws that treat people differently based on characteristics other than race.

Guaranteeing equal treatment sounds uncontroversial, but our laws categorize and treat people differently all the time:

In a series of cases since the amendment's ratification, the Court has had to grapple with how exactly laws are are able to treat people differently. In addition to ruling on the individual cases, much of the Court's role is to provide clear guidance to potential litigants and the hundreds of US Federal Judges that could be involved in these disputes. This guidance gets fleshed out piecemeal as cases are brought before the Court and new edge cases are dealt with.

The result of this process is a complex system where the Court has recognized certain suspect and quasi-suspect classes of characteristics that the Court treats differently. When those classes are implicated, the law being challenged is held to a higher standard of review (also known as the level of scrutiny). The Court has not closed the door to adding new characteristics to the suspect or quasi-suspect classes, but it has not recognized any new ones in over 40 years.

Levels of Scrutiny

As a practical matter, the Court's choice of which level of scrutiny to apply largely dictates the outcome of the case.

The lowest level is called Rational Basis, which means that the legislature just has to have some logical reason that the law will help achieve some legitimate goal (even if only partially, and even if it's unfair, arbitrary, or inefficient). It's exceptionally unusual for a law to not reach this bar. Laws that do NOT implicate any suspect or quasi-suspect classes get this level of scrutiny.

The highest level is called Strict Scrutiny. This requires that the law is necessary to achieve a "compelling state interest" and is the least restrictive way possible to achieve it. The common saying is "strict in theory, fatal in fact" because almost no law passes this bar. The law is presumed unconstitutional from the outset, and the burden of proof is on the government to prove it can't be done any better way. Laws implicating the suspect classes get this level of scrutiny. The suspect classes recognized by the Court that apply to federal laws are race and national origin.

A middle level, called Intermediate Scrutiny was added later. It's a much fuzzier and subjective standard, under which the government must show that the "classification serves important governmental objectives" and that "the discriminatory means employed are substantially related to the achievement of those objectives". Laws implicating quasi-suspect classes get this level of treatment. Only sex and illegitimacy (children born out of wedlock) have been treated as a quasi-suspect classes by the Court.

You won't find any mention of scrutiny levels in the Constitution. They're a purely judicial creation, along with the concept of suspect and quasi-suspect classes. The concept of scrutiny standards was first mentioned in a (now famous) footnote of a Supreme Court decision about an interstate milk shipping requirement in United States v. Carolene Products Company.

Skrmetti Argument

The Skrmetti case dealt with a Tennessee law banning the prescription of puberty blockers to minors experiencing gender dysphoria. As with most cases, it comes to the Supreme Court on appeal after a District Court and appellate court (Sixth Circuit, in this case) have issued judgements and opinions.

The District Court found that transgender status should be considered a new quasi-suspect class alongside sex. Since laws implicating quasi-suspect classes receive Intermediate Scrutiny, the District Court applied that standard. It determined that the law was unlikely to pass that heightened bar of review, and granted a preliminary injunction to prevent the law from going into effect.

On appeal, the Sixth Circuit reversed the District Court. It found that since neither the Supreme Court nor the Sixth Circuit has recognized transgender status as a quasi-suspect class, there was no basis for a heightened standard of review. The Sixth Circuit looked at 2 considerations for adding suspect classes that the Supreme Court had previously mentioned: whether the characteristic is immutable and whether the group in question is "politically powerless". The court ruled that transgenderism was not immutable, pointing to cases of detransitioners that the law's challengers did not contest. The court also held that transgender people were not politically powerless, pointing to the fact that the then-President, Department of Justice, and major medical associations supported the law's challengers.

The Supreme Court agreed to hear an appeal of the Sixth Circuit's decision, which is called granting certiorari. The Court reviews legal reasoning in the courts below it de novo, meaning they proceed through their own analysis of the law from scratch.

Starting fresh, the Court first considered the obvious discrimination based on age—this restriction applies only to children under the age of 18. Since age is not a suspect or quasi-suspect class, this differentiation does not trigger heightened review.

Next, the Court considered whether the law discriminates based on sex. The law's challengers argued that there is de-facto sex discrimination because the law makes it legal to provide a boy testosterone to live as a boy, but illegal to provide a girl testosterone to live as a boy. They tried to draw parallels to the Courts ruling in Loving v. Virginia, which banned laws restricting inter-racial marriage. The argument there was similar—it's an Equal Protection violation to allow a white person to marry a white person but prohibit a black person from marrying a white person.

In this case, the Court found that the law did not discriminate based on sex, but on the medical diagnosis. Since the law bans prescribing testosterone to anyone (boy or girl) to treat gender dysphoria, and allows prescribing it to anyone for any other diagnosis, the Court found that the diagnosis is the actual differentiator. The Court had previously found that regulating sex-specific medical conditions does not necessarily entail sex-based discrimination in a 1974 case called Geduldig v. Aiello regarding pregnancy coverage. Since medical diagnosis is not a suspect or quasi-suspect class, this also does not trigger heightened review.

There was some language in the legislative record about the legislature's desire to "[encourage] minors to appreciate their sex". Laws seeking to enforce sex stereotypes or that conceal an intent to discriminate based on sex can be treated as discriminatory and subjected to Intermediate Scrutiny. The Court looked at this and decided there was not convincing evidence of this, pointing to additional language showing that the legislature had concerns about the safety and potential harms of the procedures. Since those are permissible intents, this also did not trigger heightened review.

Applying the low bar of Rational Basis, the Court affirmed the decision of the Sixth Circuit and allowed the law to go into effect. Because the Court did not "reach" consideration of what differentiation is allowed based on transgender status, that question remains unresolved.