Supreme Court Headed Toward Potentially Game-Changing Decision Over Gender Disputes

The U.S. Supreme Court is set to hear oral argument on Dec. 4 in a major case that could alter how courts apply the Constitution and view legal disputes over social issues involving gender.
In U.S. v. Skrmetti, U.S. Solicitor General Elizabeth Prelogar is asking the high court to end Tennessee’s prohibition on so-called gender-affirming care, including puberty blockers and surgical procedures, for minors.
The case follows a 2023–2024 term full of major decisions that touched on hot-button issues such as abortion, presidential immunity, and government regulation, percolating in the lower courts and inflaming national debate.
One issue was notably absent from the high court’s docket: the nation’s ongoing debate over gender and how the law views biological sex. The court denied, for example, a petition to review a lower court’s order blocking an Indiana school district’s restriction on boys using girls’ bathrooms.
“I’m guessing what they’re doing here is saying ‘let’s let this percolate,’” Judicial Crisis Network President Carrie Severino told The Epoch Times in May. She suggested the justices were letting what’s known as a circuit split develop. That occurs when two or more courts of appeals issue conflicting holdings about a particular legal question.
For U.S. v. Skrmetti, Prelogar said a circuit conflict was “emerging” on medical procedures as various district courts were considering the issue. She added that splits had emerged on related issues like whether laws targeting gender identity constituted a form of sex discrimination or warranted tougher scrutiny under the 14th Amendment.
Severino added that “there are some benefits to having well-thought-out litigation on both sides and smart lawyers, smart judges, having weighed in on the issue multiple times, because you can get some different perspectives.”
The amendment was initially passed in response to Reconstruction-era attempts to discriminate against freed slaves. It has since been applied, however, in the debate over a variety of state-level restrictions including on speech and abortion.
The federal government has suggested that “transgender persons” should be considered a “quasi-suspect” class; in other words, one that receives heightened legal protection under the equal protection clause.
By contrast, the U.S. Court of Appeals for the Sixth Circuit disagreed and instead afforded more deference to Tennessee in deciding whether to ban these types of procedures for minors.
Oral arguments in December will likely feature a discussion about the reliability of the evidence used to support these procedures. Part of evaluating claims like those brought under the equal protection clause involves weighing the arguments against state interests.
Prelogar has attempted to support these procedures by citing the World Professional Association for Transgender Health (WPATH) and the Endocrine Society and by stating that many major medical and mental health organizations follow their guidelines.
The ideological clash over gender has erupted in various ways, including controversies over school curricula, schools socially “transitioning” students without parental consent, bathroom policies, speech codes requiring individuals to use preferred pronouns, state support for surgical procedures, and the issue of biological males playing in women’s sports.
“Gender identity touches a multitude of different societal avenues, and we’re only going to see that increase until and unless the Supreme Court weighs in with some clarity,” Sarah Marshall Perry, a senior legal fellow at conservative think tank The Heritage Foundation, told The Epoch Times.
In that case, the court held that Title VII of the Civil Rights Act, which prohibits sex-based discrimination by employers, applied to gender identity and sexual orientation.
Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh each dissented, and Kavanaugh wrote a separate opinion from the other two. Alito said that Gorsuch’s opinion would have implications for many areas of law, including religious liberty, health care, free speech, and other constitutional claims.
It included a provision, however, purporting to limit the 2020 decision to Title VII and indicated religious organizations could be exempt in future cases.
“[W]hile other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way,” he wrote.
By contrast, the Sixth Circuit upheld Tennessee’s law on surgeries while stating that Bostock applied only to Title VII.
In asking the Supreme Court to review that decision, Prelogar challenged the Sixth Circuit’s interpretation of Bostock. She suggested Gorsuch’s opinion supported a challenge to the law based on the Equal Protection Clause of the 14th Amendment.