Podcast Summary: Strict Scrutiny – "SCOTUS Upholds Tennessee Ban on Gender-Affirming Care for Minors"

Release Date: June 18, 2025

Introduction

In this episode of Strict Scrutiny, hosted by constitutional law professors Leah Lippman, Kate Shaw, and Melissa Murray, the focus is on the recent Supreme Court decision United States v. Script, which upheld Tennessee's law banning gender-affirming care for transgender minors. The hosts delve into the implications of this ruling, its alignment with precedent cases, and its broader impact on transgender rights and equal protection under the law.

Interview with Chase Strangio (02:02 – 13:37)

Guest: Chase Strangio, Deputy Director for Transgender Justice and Staff Attorney at the ACLU.

Key Topics Discussed:

1. Overview of the Decision:

   • Leah Lippman introduces the case, highlighting that the Supreme Court upheld Tennessee's prohibition on gender-affirming care for minors.
   • Strangio expresses devastation over the ruling, emphasizing its harmful impact on transgender youth and their families.

2. Heightened Scrutiny vs. Deference:

   • The Court's decision determined whether Tennessee's law warranted heightened scrutiny—a stringent standard requiring courts to closely examine the law's justifications—or if it should be upheld with deference.
   • Strangio acknowledges the ruling as harmful but notes it is narrower than it could have been, providing avenues for future litigation.

3. Implications for Future Cases:

   • The decision revitalizes precedents like Romer v. Evans and Cleburne v. Cleburne Living Center, maintaining that invidious targeting doesn't automatically fail equal protection reviews.
   • Strangio emphasizes that while the current ruling is narrow, it leaves room for challenging other discriminations against transgender individuals.

4. Justice Barrett's Concurrence:

   • Kate Shaw discusses Justice Barrett's concurrence, where she stated that transgender individuals do not constitute a "quasi-suspect class" due to the lack of historical legal discrimination.
   • Strangio criticizes this view, highlighting the long history of de jure discrimination against transgender people and questioning the court's acknowledgment of such facts.

5. Advice for Litigants and Supporters:

   • Strangio urges collective action to combat harmful narratives about transgender lives and advocates for continued litigation to protect constitutional rights.
   • He calls for societal efforts to disrupt false narratives and support transgender individuals in facing legal challenges.

Notable Quotes:

• Chase Strangio [03:02]: "The Supreme Court legitimized restrictions on gender-affirming care for minors... it's devastating."
• Strangio [12:10]: "The more that trans people are targeted, the more we are collectively facilitating the retrenchment of gender norms more broadly, and that's going to harm us all."

Post-Interview Analysis and Discussion (15:15 – 39:16)

Majority Opinion Breakdown

The hosts dissect the Majority Opinion authored by Chief Justice Roberts, joined by all six Republican appointees. The key reasoning centers on the argument that Tennessee's law does not discriminate based on sex but rather on age and medical use.

• Chief Justice Roberts' Reasoning:

  • The law differentiates based on age (minors) and specific medical treatments, not directly on sex.
  • Leah Lippman [15:57]: Criticizes the rationale as "both pretty dumb and disingenuous," pointing out that acknowledging multiple classifications (age, medical use, sex) should not negate the sex classification.

• Revival of Godoldig v. Aiello:

  • The Court heavily references the 1974 case, which upheld pregnancy-based distinctions as not constituting sex discrimination because not all women are pregnant.
  • Kate Shaw [16:26]: Notes the Court's intent to revive Godoldig, a decision widely regarded as flawed and overruled in practice by subsequent legislation like the Pregnancy Discrimination Act of 1978.

• Sex-Based Stereotypes and Heightened Scrutiny:

  • The Majority suggests that laws classifying based on sex may fail heightened scrutiny if they rest on impermissible stereotypes, yet dismisses certain stereotypes as non-problematic.
  • Melissa Murray [19:48]: Highlights the contradiction in allowing biological distinctions to justify sex-based classifications, undermining previous protections against gender stereotyping.

Notable Quotes:

• Melissa Murray [19:48]: "This sort of casual insistence that laws involving medical care can permissibly draw distinctions on the basis of sex was a pretty obvious signal that to this court, virtually anything will go..."

Concurrences and Additional Opinions

Multiple concurrences were discussed, each adding layers to the Majority Opinion's impact:

1. Justice Thomas’s Concurrence:

   • Recycling Old Arguments: Justice Thomas draws parallels between transgender rights and abortion, suggesting that heightened scrutiny for sex-based discrimination could extend to other areas like race.
   • Leah Lippman [26:07]: Describes Thomas's concurrence as "recycling old arguments" and criticizes his threat regarding admissions essays under heightened scrutiny.

2. Justice Barrett’s Concurrence:

   • Non-Suspect Class Argument: Barrett asserts that transgender individuals do not qualify as a suspect or quasi-suspect class, aligning with Justices Alito and Thomas.
   • Melissa Murray [28:18]: Notes Barrett's concurrence as "trolling" and expressing confidence that laws targeting transgender individuals would withstand constitutional challenges.

3. Justice Alito’s Concurrence:

   • Strict Scrutiny Limitations: Alito emphasizes that distinguishing between biological sexes is necessary to claim sex-based discrimination, thereby limiting the scope of heightened scrutiny.
   • Kate Shaw [36:10]: Highlights concerns about limiting disparate impact claims and the broader implications for sex discrimination cases.

Notable Quotes:

• Justice Alito [28:21]: "A party claiming that a law violates the Equal Protection Clause because it classifies on the basis of sex cannot prevail simply by showing that the law draws a distinction on the basis of gender identity."

Dissenting Opinions

Justice Sotomayor leads the dissent, joined by Justice Jackson and partially by Justice Kagan.

• Main Arguments:

  • Impaired Judicial Review: Sotomayor argues that the Majority's retreat from meaningful judicial review abandons transgender children and their families to "political whims."
  • Historical Discrimination: She counters the Majority's dismissal of historical discrimination against transgender individuals, emphasizing ongoing legal and social challenges faced by the community.

• Kate Shaw [38:52]: Emphasizes that relying on democratic deliberation fails marginalized groups who lack sufficient numbers to protect their rights effectively.

Notable Quotes:

• Justice Sotomayor [39:16]: "By retreating from meaningful judicial review exactly where it matters most, the court abandons transgender children and their families to political whims with sadness. I dissent."

Implications for Future Cases and Equal Protection

The hosts explore the broader ramifications of the decision:

• Equal Protection Clause:

  • The ruling sets a precedent that could limit protections against sex-based discrimination, affecting various areas such as abortion, education, and employment.
  • Chase Strangio [09:06]: Criticizes the decision for undermining established equal protection doctrines and rolling back civil rights advancements.

• Potential for Future Litigations:

  • The decision does not foreclose challenges based on parental rights, suggesting that future cases could navigate different constitutional arguments to protect transgender rights.
  • Melissa Murray [34:37]: Points out that while this case addresses equal protection, other constitutional challenges remain viable.

• Concurrences Extend Harm:

  • The separate opinions by Justices Thomas and Barrett indicate a willingness to allow more targeted and invidious discrimination against transgender individuals, potentially paving the way for further erosions of civil rights.

Notable Quotes:

• Kate Shaw [31:01]: "They are pulling atmospherically from the culture, not from the record... We have a role to play in disrupting these harmful and false narratives about trans life."

Conclusion

The Strict Scrutiny hosts conclude with a somber reflection on the decision's impact, echoing Justice Sotomayor's dissent. They emphasize the interconnectedness of civil rights struggles, underscoring that attacks on one group's rights can lead to broader erosions of protections for all. The episode serves as a critical analysis of the Supreme Court's current trajectory concerning transgender rights and equal protection, urging listeners to remain vigilant and engaged in the fight for constitutional justice.

Final Notable Quote:

• Leah Lippman [38:52]: "By retreating from meaningful judicial review exactly where it matters most, the court abandons transgender children and their families to political whims with sadness. I dissent."

Key Takeaways:

• The Supreme Court's decision in United States v. Script upholds Tennessee's ban on gender-affirming care for minors, relying on outdated and contested precedents.
• The Majority Opinion's reliance on Godoldig v. Aiello signals a troubling revival of flawed doctrines that undermine sex-based discrimination protections.
• Concurrences by Justices Thomas and Barrett suggest a broader intent to limit constitutional protections for transgender individuals, potentially affecting other civil rights areas.
• Justice Sotomayor's dissent underscores the critical role of judicial review in safeguarding minority rights against majoritarian impulses.
• The ruling poses significant challenges for future litigation efforts aimed at protecting transgender rights and maintaining equal protection under the law.

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