The Supreme Court case on transgender care has big implications for women

The Court is poised to undermine a key gender rights doctrine crafted by Ruth Bader Ginsburg

Earlier this month, the Supreme Court heard oral argument in United States v. Skrmetti, which on its face is a case about whether Tennessee (and by extension states in general) can prohibit healthcare providers from providing gender-affirming medical care to transgender minors. But dig a little deeper and it seems increasingly apparent that this case could be the opening salvo for overturning the doctrine of intermediate scrutiny, which has been used to block statutes that discriminate on the basis of sex.

What is intermediate scrutiny and why does it matter for gender rights?

The Supreme Court has three levels of “scrutiny” for deciding if a law violates the Equal Protection Clause of the 14th Amendment: rational basis review, intermediate scrutiny, and strict scrutiny.

The Supreme Court has said that most laws that discriminate against certain categories of people or businesses do not violate equal protection as long as they are supported by a “rational basis,” meaning that the government only needs to come up with a reasonable excuse for them. This is the lowest form of scrutiny and applies to classifications that the Supreme Court has said do not need special protections. Under Roe v. Wade, laws restricting abortion got a higher level of scrutiny. In Dobbs, the Court bumped it down to “rational basis,” utterly disregarding the impact of draconian abortion laws on women and girls and stating (as it had before) that abortion has nothing do with with gender anyway. (If that sounds ridiculous to you, you’re not alone).

Strict scrutiny is the highest form of scrutiny and it is used to protect racial minorities by making it extremely difficult for the federal and state governments to pass laws that make a distinction based on race.

At this point, laws that discriminate on the basis of gender have gotten something in between: intermediate scrutiny.

The Court recently heard oral argument in a case involving gender-affirming care for trans minors, Skrmetti v. U.S. Although Skrmetti ostensibly seems to only affect trans minors and their families, it actually has much more sobering implications. If the far-right majority uses Skirmetti to downgrade the test for gender-based laws down to rational basis—as it did in Dobbs—it could have implications for over half the population in the United States by further eroding women’s constitutional rights.