After Justice Neil Gorsuch’s muddled opinion in Bostock v. Clayton County, the door seemed at least ajar, if not wide open, to ACLU lawyer Chase Strangio to argue that discrimination against transgender people violated the Equal Protection Clause, and that like sex discrimination in Bostock, it deserved higher scrutiny than rational basis analysis if a state was to enact a law that discriminated against transgender people.
The State of Tennessee prohibited medical procedures, characterized as “gender-affirming care” by its advocates and supporters, and more precisely as puberty blockers and hormones as surgical intervention was already off the table, for minors. The catch was that the same medical treatment was permissible for other reasons, such as precocious puberty, but not for gender dysphoria. Gender dysphoria, of course, is the diagnosis that gives rise to someone being transgender, although being transgender is not limited to gender dysphoria.
How could this not be sex discrimination under Bostock? How could a law prohibit the medical interventions that were otherwise lawful and permitted when applied to transgender children? How could this not compel heightened scrutiny rather than the easily surmounted rational basis analysis?
On its face, SB1 incorporates two classifications: one based on age (allowing certain medical treatments for adults but not minors) and another based on medical use (permitting puberty blockers and hormones for minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence). Classifications based on age or medical use are subject to only rational basis review. See Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (per curiam); Vacco v. Quill, ...
