This term, the Supreme Court decided two cases that will be consequential for our community. In very bad ways.

On June 18, the Supreme Court upheld Tennessee’s ban on gender-affirming care for transgender minors in a 6 to 3 decision in United States v. Skrmetti. In doing so, the majority, written by Chief Justice John Roberts, also held that the ban did not trigger “heightened scrutiny” review, which is the second most stringent form of review under the Equal Protection Clause of the Fourteenth Amendment, and the standard usually applied to legal challenges based on sex discrimination. 

Rather than heightened scrutiny, the majority applied what is known as “rational basis” review. Under rational basis review, the burden is on the challenger to demonstrate that the challenged law is not rationally related to any legitimate government interest. 

So why didn’t this decision get heightened scrutiny? Because according to the majority, the Tennessee law was related to age and medical use, rather than sex-based discrimination, and thus did not merit heightened scrutiny review. This was despite evidence presented by the challengers that other forms of gender-affirming care (such as hormone blockers) would still be available to cisgender minors under the Tennessee law.

The dissent, written by Justice Sonia Sotomayor, pointed out this glaring failure of the majority to consider the ways in which the Tennessee law discriminated against transgender minors in ways related to their sex. As she wrote, “Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls.” She discussed the many ways in which the ban constituted discrimination based on sex, adding, “In sadness, I dissent.”

The Court issued a similar 5 to 3 decision in Mahmoud v. Taylor on June 27. That case involved a Montgomery, Maryland, county school board decision to introduce a variety of LGBTQ+ inclusive books into the public school curriculum without an “opt out” option for students whose parents come from religious backgrounds that may object to such materials. The Court rejected this effort, saying that the introduction of the materials without a way to opt out was unconstitutional. The school board had actually stated that it had previously considered implementing an opt out option for parents, but found that it was not administratively practical. 

The majority in this case, written by Justice Samuel Alito, considered the introduction of such books without an opt out to be a burden on the parents’ right to the free exercise of religion, and concluded that it constituted an unconstitutional infringement of religious liberties. Unlike in Skrmetti, the majority applied the most stringent form of scrutiny, known as “strict scrutiny.”

The dissent, also written by Justice Sotomayor, was scathing. As she wrote, “Exposing students to the ‘message’ that LGBTQ people exist, and that their loved ones may celebrate their marriages and life events, the majority says, is enough to trigger the most demanding form of judicial scrutiny.” It even drew attention to the majority’s double standard. As Justice Sotomayor pointed out, in Skrmetti, the Court took a differing approach, requiring any objections to the gender-affirming care ban to be raised in the political, rather than legal, arena. But in Mahmoud, the majority made no such requirement.

What does this mean for our community? It is, to put it frankly, really bad for us. Most directly, it means that states who want to ban gender-affirming care for minors can do so. It means that public schools that want to allow LGBTQ+ books to be available in the curriculum must implement costly measures in order to do so, or avoid introducing such books entirely.

More broadly, these cases open the doors to other forms of discrimination. The reasoning of Skrmetti and Mahmoud, put together, could potentially be applied to allow other forms of harm to LGBTQ+ youth. It could be applied to anti-bullying policies that are designed to protect LGBTQ+ youth. It could be applied to the use of bathrooms or participation in sports. Indeed, a case involving the latter—a transgender sports ban—will be heard by the Supreme Court this upcoming term (to be discussed in a future column).

But our community has been here before. Until the Supreme Court decided Lawrence v. Texas in 2003, laws criminalizing sodomy existed in 14 states. Until the Supreme Court decided Obergefell v. Hodges in 2015, same-sex marriage was not guaranteed by the Due Process and Equal Protection clauses of the U.S. Constitution. Until the Supreme Court decided Bostock v. Clayton County in 2020, it was unclear whether Title VII of the Civil Rights Act protected employees against discrimination on the basis of sexual orientation or gender identity.

Yet LGBTQ+ people have persevered. We have fought these battles not only in courts, but in the streets and in state capitols. And we have provided mutual aid and support for each other throughout even more troubling times. We must continue to do all of these things.

Steph Tai is a law professor at the University of Wisconsin Law School, and also Associate Dean for Education and Faculty Affairs at the UW Nelson Institute for Environmental Studies. Their research is primarily in the area of environmental, food, and health regulation.