When the Court Looks Away: Skrmetti and the Fragility of Justice
When the Court enforces stereotypes and calls it neutrality, it betrays both the Constitution and those it is meant to protect.
In United States v. Skrmetti, the Supreme Court upheld Tennessee’s law banning gender-affirming care for transgender minors. The majority, with quiet confidence and crisp language, concluded that the law does not discriminate “on the basis of sex,” and therefore passes constitutional muster.
Image generated by AI with reference input provided by author using the prompt, ‘create image of transgender flag waving outside on the steps of the U.S. Supreme Court.’ Created by ChatGPT (Open AI), July 2025.
On the surface, the decision wears the garb of neutrality. But beneath it lies a profound abdication of the Court’s duty — a retreat cloaked as restraint — at a moment when the rights and dignity of a vulnerable minority were before them, asking not for special treatment but simply for recognition.
The justices who joined the majority are not unthinking ideologues. They are, by any measure, brilliant jurists — men and women who have written with elegance and rigor on constitutional text, history, and principle. Several of them, notably Justice Gorsuch, have even acknowledged before that discrimination against transgender individuals implicates sex-based classifications.
So why, in this case, did six justices avert their gaze?
The Discriminatory Heart of Tennessee’s Law
The Tennessee statute does not bother to hide its intentions. The word sex appears more than eighty times. Its professed aim is to ensure that minors “appreciate” their assigned sex rather than become “disdainful” of it. It bans puberty blockers, hormones, and surgery only for transgender youth — allowing the same treatments for cisgender minors with different diagnoses.
A cisgender boy with precocious puberty may take hormone-suppressing drugs; a transgender girl may not. The same body, the same drug, the same doctor — but a different identity.
This is not neutrality. This is discrimination — not only because it draws a line at sex assigned at birth, but also because it enforces rigid, antiquated stereotypes about what boys and girls may become.
Justice Sotomayor’s dissent lays bare this hypocrisy. She rightly notes that the law punishes transgender minors precisely because they fail to conform to traditional expectations of their sex. And she reminds us — as the Court itself recognized decades ago in Price Waterhouse v. Hopkins — that enforcing sex-based stereotypes is itself a constitutional harm.
Price Waterhouse and the Light We Refuse to See
Some might object that the Court’s precedents on sex stereotyping, such as Price Waterhouse (1989), arose in the context of employment discrimination under Title VII, and therefore have no bearing on a constitutional equal protection case like Skrmetti. But that objection misses the point — and ignores the wisdom the Court itself once offered.
In Price Waterhouse, the Court held that denying a woman a promotion because she was “too aggressive” and insufficiently “feminine” violated Title VII’s prohibition on discrimination “because of sex.” The Court recognized that sex-based stereotypes — expectations about how women and men ought to act — are not just outdated notions; they are a form of discrimination.
While Price Waterhouse arose under a statute, its insight transcends that context: discrimination rooted in enforcing conformity to sex stereotypes is inherently discrimination based on sex. That is no less true when the government does it through law than when an employer does it through workplace policies.
Indeed, the Equal Protection Clause has long prohibited state actions that enforce rigid gender roles. As Justice Ginsburg wrote in United States v. Virginia (1996), “[g]eneralizations about ‘the way women are’ … no longer justify denying opportunity to women whose talent and capacity place them outside the average description.”
Yet in Skrmetti, the majority walked past this principle, pretending not to see the stereotypes embedded in Tennessee’s law — even as the law itself openly declared its purpose was to make children “appreciate” their assigned sex. Price Waterhouse lit a lantern decades ago, showing how sex-based stereotypes hide in plain sight. In Skrmetti, the Court looked away from that light.
The Majority’s Silence
Instead, the majority recast the law as a neutral regulation of medical practice, deferring to the state’s asserted interest in protecting children.
Perhaps the justices persuaded themselves that their task was simply to stay within the narrow lane of judicial restraint — to let the people’s elected representatives draw the boundaries of medicine and morality. Perhaps they convinced themselves that recognizing the reality of transgender existence was too great a leap from “tradition.”
Or perhaps they simply compartmentalized, telling themselves that Bostock — where they acknowledged that discrimination against transgender employees is discrimination “because of sex” — applied only to statutory law, not constitutional principle.
These justifications may soothe the mind, but they cannot satisfy the conscience.
Image generated by AI with reference input provided by author using the prompt, ‘create image of mother comforting her son diagnosed with gender dysphoria while doctor informs him she cannot prescribe his medication.’ Created by ChatGPT (Open AI), July 2025.
The Court’s Highest Duty
History teaches that when the Court stands down in the face of injustice — when it blinks, equivocates, or hides behind procedural hedges — the result is not institutional respect, but institutional diminishment.
We have seen this before. When the Court upheld segregation in Plessy v. Ferguson, it wrapped its decision in talk of “separate but equal.” History judged it cruel and wrong. When the Court countenanced the internment of Japanese Americans in Korematsu, it justified itself with claims of wartime necessity. History judged it cowardly and wrong.
Again and again, when the Court resisted recognizing the humanity and dignity of marginalized people, it ended up on the wrong side — not just of justice, but of history.
The Court is not a weather vane, spinning with the winds of public sentiment. It is, at its best, a lighthouse: steady, principled, illuminating the rocks that would otherwise wreck the vulnerable.
A Plea
To the Court’s majority, I offer this plea: remember who you are. Remember that your legitimacy does not flow from popularity, nor from deference to tradition for tradition’s sake, or even personal political and social ideology but from your fidelity to the Constitution — in all its majesty and demand.
Your duty is not merely to count heads in state legislatures, but to safeguard the rights of those who have no lobby, no vote, no power — those whose dignity is daily contested.
Justice Marshall once observed that the Constitution does not prohibit legislatures from enacting foolish laws — but it does prohibit them from enacting laws that deny equal protection of the laws. Tennessee’s statute is not merely foolish. It is cruel, discriminatory, and constitutionally infirm.
You cannot make it just by averting your eyes.
Closing
There is an old saying that the arc of the moral universe is long, but it bends toward justice. But it only bends because people — and courts — have the courage to reach up and pull it down toward what is right.
In Skrmetti, the Court let go of the arc. It mistook retreat for prudence, and silence for humility. But silence, here, is not humility. It is harm.
One day, when future generations read this decision alongside Plessy, Korematsu, and others, they will wonder how six brilliant jurists could have missed what was right before them: that every child — transgender or not — deserves to live with dignity, free from laws that seek to erase them.
It is not too late to remember that the Constitution is not a shield for the powerful, but a promise to the powerless. The Court must stop looking away.
Because history is watching.
Steven Teske is a retired judge having served in juvenile and superior court. and currently is a trial attorney in Tucson, AZ. He has testified before Congress on four occasions and numerous state legislatures on law and policy reform. He was an adjunct law professor at John Marshall Law School in Atlanta and is an adjunct professor at Pima Community College teaching criminal justice and business law.