In United States v. Skrmetti, the U.S. Supreme Court upheld Tennessee’s ban on gender-affirming medical care for transgender minors. The majority concluded that the law did not violate the Equal Protection Clause, applying only the lowest level of judicial scrutiny — rational basis review — to a measure that categorically denies care to trans youth while permitting identical medical interventions for other conditions.

Justice Sonia Sotomayor, joined by Justices Kagan and Jackson, wrote a forceful dissent. She argued that the law discriminates on the basis of sex by allowing treatments like puberty blockers and hormone therapy for purposes other than gender transition — such as treating precocious puberty — but forbidding those same treatments for transgender minors. This disparity, Sotomayor noted, reveals a blatant sex-based classification that should have triggered heightened scrutiny under Equal Protection jurisprudence. Instead, the majority’s decision to apply only rational basis review insulated the law from serious constitutional examination, effectively endorsing a double standard rooted in political and cultural bias rather than medical evidence.

Justice Sotomayor’s dissent was not only a legal rebuttal but a moral outcry. She lamented that the Court “abandons transgender children and their families to the whims of politics,” highlighting the very real harms that will result from the decision. Transgender minors already face disproportionately high rates of mental health distress, self-harm and suicide. Denying them access to medically accepted care, Sotomayor argued, is not a neutral act — it is a life-altering intrusion into their well-being by the state. She accused the majority of retreating from the judiciary’s historic role in protecting vulnerable groups against majoritarian overreach.

Justice Elena Kagan, concurring in the main points of Sotomayor’s dissent, filed her own opinion emphasizing that the Tennessee law, by singling out gender-affirming care for exclusion, clearly targeted a protected class. Justice Ketanji Brown Jackson joined both dissents in full, affirming that the law was not just constitutionally suspect but profoundly harmful in practice.

What separates the majority and dissenting opinions in this case is not merely legal methodology — it is a fundamentally different understanding of the Constitution’s role in relation to evolving social realities. The majority adopted a rigidly originalist or textualist reading of the Constitution, focusing on how the Equal Protection Clause would have been understood at the time of its ratification. This formalist approach allowed the justices to sidestep the present-day medical consensus on gender dysphoria, the voices of affected families and the mental health crises facing transgender youth. By prioritizing legal abstractions over lived experience, the majority insulated itself from the human consequences of the law.

At the same time, the outcome reflects more than just originalist legal theory. By upholding a ban that imposes suffering in the name of “protecting children,” the Court appears to have privileged a moral worldview consistent with conservative religious teachings over the medical guidance of every major professional health association — including the American Academy of Pediatrics, the American Medical Association and the Endocrine Society. This alignment raises serious constitutional concerns. Although the opinion does not explicitly invoke religious doctrine, its effect is to validate a legislative framework that is deeply shaped by religious opposition to transgender identity and transition-related care.

This outcome stands in tension with the Establishment Clause and the principle of the separation of church and state. In allowing laws motivated by religiously infused moral panic to determine public health policy for an already marginalized group, the Court fails to maintain the constitutional boundary between personal faith and public law. The majority’s reasoning thus reflects not only a retreat into the past through originalism, but also a troubling willingness to accommodate religiously motivated legislation at the expense of evidence-based medical standards and the constitutional rights of children and families.

Gordon Gamm, J.D., lives in Boulder.