In United States v. Skrmetti the Supreme Court will consider whether Tennessee’s broad prohibitions on gender-affirming care for minors violates the Equal Protection Clause. Tennessee’s statute prohibits providers from administering “a medical procedure” to “[e]nabl[e] a minor to identify with…a purported identity inconsistent with the minor’s sex” or “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” These prohibited procedures include “[s]urgically removing, modifying, altering, or entering into tissues, cavities, or organs” and “[p]rescribing, administering, or dispensing any puberty blocker or hormone.”
Notably, the law provides exceptions for children who need these treatments for conditions not related to gender dysphoria. The Tennessee law “permits the use of puberty blockers and hormones to treat congenital conditions, precocious puberty, disease, or physical injury.”
As the petitioners observed in their Sixth Circuit brief, these exceptions condition “the provision of medical care on whether or not a minor seeks to conform to their sex designated at birth.” This, they argue, based on biding Supreme Court precedent, is sex discrimination.
Apart from alluding to intersex children, the brief does not detail how these exceptions operate. (Indeed, none of the appellate briefs appear to do so, though, as I note below, some of the district court papers make the point). A brief filed in the Supreme Court on behalf of Gender Affirming Care Experts makes this point in detail. (Full disclosure, I was Counsel of Record on the brief.)