Filed Sep 03 2024 (Corrected brief filed - September 13, 2024). 
Summary of Argument follows:

Tennessee’s SB1 creates two classes of care for minors—one that is prohibited, and the other that is permitted.3 The distinction between the classes turns on the minor’s sex assigned at birth.4 For example, if a minor seeks medication to reduce the buildup of breast tissue, the statute inquires into the individual’s sex assigned at birth. If the minor is assigned male at birth, the statute allows the medication to be prescribed. It prohibits prescription of the same medication, however, to minors assigned female at birth. Similarly, if a minor seeks to take medication to address facial or body hair growth, permissibility once more turns on the sex assigned at birth. Under the statute, minors assigned female at birth may be prescribed the medication, but minors assigned male at birth may not. This discrimination based on sex holds true for a range of other conditions. See Part II.B and Appendix B; see also Pet’r’s Br., U.S. v. Skrmetti, et al., No. 23-477 (filed Aug. 27, 2024) 22-23.

The discrimination described in this brief is not simply hypothetical. Both cisgender and transgender minors require gender affirming care. Cisgender minors—that is, minors who identify with the sex they were assigned at birth—often find that their bodies do not conform to their internal sense of gender. For example, cisgender boys might find that they have an unwelcome buildup of breast tissue, or atypically high-pitched voices. Cisgender girls, in turn, might encounter the unwelcome growth of facial and body hair, problems with menstruation, and underdevelopment of breast tissue. Such conditions—which constitute medical diagnoses in their own right—can lead to significant psychological distress. See Part II.A. To address this, medical professionals administer medication to produce outcomes that conform to the sex with which the cisgender minor identifies (and which they were assigned at birth).
 
In this respect, cisgender minors are similarly situated to transgender minors. The bodies of cisgender minors with conditions described in this brief do not conform to their internal sense of gender; so too for transgender minors. For some cisgender minors, this creates psychological distress; again, the same is true for some transgender minors. Some cisgender minors seek medication to allow their bodies to conform to their internal sense of gender; and, once more, some transgender minors do the same. See Appendix B. Indeed, many of the medications that transgender minors take to address many of the same issues that cisgender minors face—growth of breast tissue, hair, high-pitched voice, among others—were developed to treat gender non-conformity among cisgender minors.5 And physician amici engage in gender affirming care for cisgender people far more frequently than for transgender people.
 
In other words, for most minors seeking gender affirming care approved by their parent(s) or guardian and healthcare provider, SB1 will have no effect—they will receive it, if the care they seek is deemed medically necessary and conforms to the gender they were assigned at birth. But for a disfavored small minority of minors—those who are transgender, and who seek care that does not conform to their sex assigned at birth—care will be forbidden. Thus, within the universe of gender affirming care, only one group loses out under SB1—and they do so because of their sex.
 
To avoid this straightforward conclusion, the Sixth Circuit incorrectly claimed that there is no general class of gender affirming care. Gender affirming care for cisgender and transgender individuals involves the same medication;7 is offered for the same purpose—conformity with one’s gender identity often to address psychological distress; and produces the same overall results (including analogous side-effects), see Part II.B infra. “[C]alibrating the level of generality” to avoid comparing gender affirming care for gender dysphoria to gender affirming care sought by cisgender youth, as the Sixth Circuit did, does not reflect reality. Masterpiece Cakeshop v. Colo. C.R. Comm’n, 584 U.S. 617, 652 (2018) (Gorsuch, J., concurring).
 
By targeting gender affirming care based on the legislature’s definition of a minor’s sex, SB1 engages in unconstitutional sex discrimination.
Citation
Craig Konnoth, Brief of Experts on Gender Affirming Care as Amici Curiae in Support of Petitioner and Respondents in Support of Petitioner in United States v. Skrmetti, 605 U.S. ___ (2025).
UVA Law Faculty Affiliations
Craig Konnoth
Program in Constitutional Law
Immigration, Migration and Human Rights Program
Center for the Study of Race and Law
Health Law Program
Family Law Center
LawTech Center
Center for Civil Rights and Civil Liberties
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