GW Law Faculty Publications & Other Works

Document Type

Article

Publication Date

2026

Status

Accepted

Abstract

The Supreme Court’s decision in United States v. Skrmetti upholding a ban on gender-affirming medical care for minors marked a foundational shift in constitutional sex equality doctrine. Rather than recognize the challenged ban’s sex-based line-drawing, the Court recast the statute as a neutral regulation of medical purpose and age. In so doing, it narrowed the definition of what constitutes a sex-based classification and embraced a conception of biological sex as a natural kind—objective, apolitical, and outside the scope of constitutional scrutiny.

The Article identifies this move as a doctrinal departure and a conceptual reconfiguration. The law’s challengers argued that it constituted sex discrimination: if a natal boy may receive hormones to reduce breast tissue but a natal girl may not, that is a sex-based distinction. Longstanding equal protection doctrine treats laws as classifications subject to heightened scrutiny when they require regulating by a protected trait, regardless of whether the law applies equally across groups or is justified by an ostensibly neutral rationale. The Court abandoned that tradition in Skrmetti, deciding that the law draws lines based on medical purpose and age, not sex, because a natal girl with unwanted breast tissue who is denied hormone therapy and a natal boy with unwanted breast tissue who is prescribed the same drug are seeking treatment for different purposes: the natal boy is receiving gender-affirming care and the natal girl is not. But this reasoning ignores how the natal boy and natal girl are both receiving gender-affirming care—medical interventions to conform to their desired gender presentation. The law’s sex-based line-drawing embraces the medical and legal construction of biological sex in cisgender persons while rejecting the very same interventions for transgender persons. This analysis masks a deeper shift in the Court’s logic of sex equality: that sex classifications sufficiently tied to biological difference are presumptively reasonable and unworthy of heightened scrutiny.

The logic driving Skrmetti may have far-reaching implications. The Court’s view of biological sex as a pre-social fact not only naturalizes unequal treatment of transgender people but licenses rolling back sex equality more broadly. In this framework, physiological difference justifies regulatory difference without recognizing the social judgments that constitute these very categories. The Court’s approach threatens to insulate a growing array of sex-based laws—ranging from healthcare to sports to bathrooms—from meaningful constitutional review. By severing the law of sex equality from its race-based analogue and redefining what counts as a sex classification, Skrmetti laid the groundwork for a doctrinal future in which much sex-based regulation is treated not as constitutionally suspect, but as biologically inevitable.

GW Paper Series

2026-30

Download

Included in

Law Commons

Share

COinS