Child Gender Transition Bans and the Constitution: The Equal Protection Clause and Bostock

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America is living through the “transgender moment,” where “transitioning” from one sex to the other is rapidly becoming more common and more accepted—even celebrated.¹ In 2017, roughly 1.4 million American adults (0.58% of the population) identified as transgender.² Not only have several states and the federal executive adopted measures designed to support transgender identification,³ but the Supreme Court itself has held that employment discrimination based on transgender status violates Title VII of the Civil Rights Act of 1964.⁴ The transgender moment has sparked a particularly controversial political debate over the proper medical approach to the skyrocketing number of transgender-identifying children.⁵ In reaction to horror stories of parents unduly influencing children into transgender identification⁶ and concerns over the effects of transgender identification on children,⁷ conservative state legislatures have attempted to prevent medical professionals from providing medical sex transitions to children.

Although state legislators in a number of different states have introduced bills to ban or regulate the medical transition of minors,⁸ only two States have enacted such a bill into law: Arkansas⁹ and Alabama.¹⁰

The Arkansas General Assembly passed the SAFE Act in March 2021, but Governor Asa Hutchinson vetoed the bill in April.¹¹ Undeterred, the General Assembly overrode Governor Hutchinson’s veto.¹² Under the Act, medical professionals who provide gender transition procedures to minors are engaging in “unprofessional conduct” and will be disciplined by the relevant “licensing entity or disciplinary review board.”¹³ Proscribed procedures include “puberty-blocking drugs, cross-sex hormones, or other mechanisms to promote the development of feminizing or masculinizing features in the opposite biological sex, or genital or nongenital gender reassignment surgery performed for the purpose of assisting an individual with a gender transition.”¹⁴ The Act, however, bans neither “social transitioning” nor the provision of gender transition procedures to adults.

Passage of the SAFE Act generated public outcry by activists, who attacked the bill as harmful, anti-transgender discrimination.¹⁵ The Act also sparked a flurry of legal writing contending that the Act violated the Fourteenth Amendment’s Due Process and Equal Protection clauses.¹⁶ And, of course, the Act led to a legal challenge: in May 2021, the ACLU filed suit against Arkansas to enjoin the Act’s pre-enforcement on behalf of patients and providers of sex transition treatments on the grounds the Act was unconstitutional.¹⁷ Soon after, the U.S. Department of Justice filed a Statement of Interest in favor of the plaintiffs, focused solely on arguing that the Act violated the Equal Protection clause.¹⁸ A federal district court judge granted Plaintiffs a preliminary injunction against the Act, concluding the Act likely violated the Equal Protection and Due Process clauses of the Fourteenth Amendment.¹⁹ Arkansas’ interlocutory appeal is pending review by the Eighth Circuit.

Governor Kay Ivey signed Alabama’s bill into law (V-CAP) in April 2022, shortly after the Alabama state legislature voted on it.²⁰ The Act prohibits certain “practices to be performed upon a minor if the practice is performed for the purpose of attempting to alter the appearance of or affirm the minor’s perception of his or her gender or sex, if that appearance or perception is inconsistent with the minor’s sex . . . .”²¹ The proscribed practices include administering or prescribing: “puberty blocking medication to stop or delay normal puberty”²²; “doses of testosterone or other androgens to females”²³; and “estrogen to males.”²⁴ A violation of this prohibition counts as a Class C felony.²⁵

Just like the SAFE Act, V-CAP sparked a howl of rage by activists.²⁶ It also led to a legal challenge: a suit by parents of transgender-identifying Alabama children and providers of sex-transition procedures to enjoin the Act’s pre-enforcement on the grounds that it was unconstitutional.²⁷ The U.S. Department of Justice joined as plaintiff-intervenor, alleging that V-CAP violated the Fourteenth Amendment’s Equal Protection clause by discriminating based on both sex and transgender status.²⁸ A federal district court judge enjoined enforcement of V-CAP sections 4(a)(1)-(3)—criminalizing the administration of puberty-blockers and cross-sex hormones for gender-transition purposes—pending trial, concluding that Plaintiffs were substantially likely to succeed on their substantive due process and equal protection claims.²⁹

This Article attempts to show that child sex transition bans (such as the SAFE Act and V-CAP) are appropriate exercises of state power under the Fourteenth Amendment’s Equal Protection Clause. Section I provides an overview of the state of the science on medical treatment of children diagnosed with gender dysphoria, including: (1) an overview of the drugs involved; (2) the effects of the banned drugs when administered to children for gender transition purposes; and (3) concerns about ideological bias in research about treating children diagnosed with gender dysphoria. Section II summarizes the Supreme Court’s Equal Protection jurisprudence, specifically its treatment of (1) state medical regulations, and (2) sex-based classifications. Section III addresses the applicability of the Equal Protection Clause to the SAFE Act, concluding that courts should subject the Act to rational basis review rather than heightened scrutiny, since it does not create a sex-based classification—even after the Supreme Court’s recent Bostock decision. Finally, Section IV concludes that, even if courts conclude that the Act creates a sex-based classification, the Act is still constitutional under intermediate scrutiny because it is substantially related to the important government objectives of: (1) preventing sterilization; (2) avoiding negative health effects; and (3) promoting patients’ best interests.

The SAFE Act prohibits medical professionals from prescribing puberty blockers to minors for gender-transition purposes.³⁰ The Act also bans medical professionals from seeking to “[i]nstill or create physiological or anatomical characteristics that resemble a sex different from the [child]’s biological sex” by prescribing cross-sex hormones to children.³¹ Likewise, V-CAP bans prescribing or administering “puberty blocking medication to stop or delay normal puberty,”³² as well as cross-sex hormones.³³

“Puberty blockers” are used to delay the onset of puberty in children by suppressing the release of sex hormones (testosterone or estrogen, depending on the child’s biological sex).³⁴ They are often administered to prepubescent transgender-identifying children to prevent them from developing primary (i.e., sexual organs) and secondary (physical changes such as breast development and facial hair growth) sex characteristics associated with their biological sex.³⁵ Advocates claim that puberty blockers help address the mental health issues associated with gender dysphoria, reduce suicidal tendencies, and prevent the future need for transition-related surgeries.³⁶ In particular, advocates claim that the use of puberty blockers “gives adolescents more time to explore their gender nonconformity” and “may facilitate transition by preventing the development of sex characteristics that are difficult or impossible to reverse.”³⁷ Lupron (also known as Leuprolide), a drug approved by the FDA to prevent precocious puberty and prostate cancer, is the most common puberty blocker for gender transitions.³⁸ Puberty blockers often act as a “transmission belt” for cross-sex hormones: in one study, 100% of the 70 participants (children receiving puberty blockers) then received cross-sex hormone treatments.³⁹

The use of “cross-sex hormone[s]” for gender-transition purposes consists in administering sex hormones of the opposite sex (i.e., giving biological males estrogen and biological females testosterone), so that the patient will develop the secondary sex characteristics of the opposite sex.⁴⁰ Proponents of the treatment claim that administering cross-sex hormones “is a medically necessary intervention” for gender-dysphoric children since it helps them achieve “maximum feminization/masculinization” or “relief with an androgynous presentation resulting from hormonal minimization of existing secondary sex characteristics.”⁴¹

Puberty blockers administered for gender-transition purposes may result in harmful side effects. First, given that sex hormones are connected to adolescent brain development, puberty blockers may retard such development, leading to relative declines in cognitive ability.⁴² Second, administering puberty blockers to children may impair physical processes, such as bone development and height.⁴³

Cross-sex hormones administered for gender-transition purposes may also result in harmful side effects. First, studies suggest cross-sex hormones may increase the incidence of strokes or other serious cardiovascular diseases, potentially resulting in higher death rates.⁴⁴ Second, studies suggest the use of “feminizing hormones” (i.e., estrogen) results in a “likely increased risk” of pancreatitis and gallstones, as well as a “possible increased risk” in type 2 diabetes, hypertension, and prolactinoma (a pituitary gland tumor).⁴⁵ Third, the administration of cross-sex hormones may lead to sexual dysfunction.⁴⁶ Fourth, the evidence suggests that “masculinizing therapy involving testosterone or other androgenic steroids” may spark psychiatric disorders with “hypomanic, manic, or psychotic symptoms.”⁴⁷ Finally, cross-sex hormones may result in irreversible changes that minor patients may come to regret as adults, such as breast development (if the patient is a male taking estrogen) or “breaking or deepening of the voice” (if the patient is a female taking testosterone).⁴⁸

In any event, the most enduring effect of administering puberty blockers and cross-sex hormones to children is an irreversible one: infertility. Without technological innovation, administering puberty blockers and then cross-sex hormones to children will generally render them infertile for life.⁴⁹

Transgender activists often argue that children with gender dysphoria must be treated with puberty blockers and cross-sex hormones before reaching adulthood to alleviate their gender dysphoria and prevent suicide. Still, the evidence does not support this justification: there is, at most, only weak evidence providing children with these medical treatments is effective at either remedying gender dysphoria or preventing suicide. First, it is disputed that providing gender dysphoric children with puberty blockers and cross-sex hormones leads to overall increases in life-satisfaction and mental well-being, mainly because of the lack of reliable studies.⁵⁰ Second, it is uncertain that providing gender dysphoric children with puberty blockers and cross-sex hormones reduces the risk of suicide⁵¹—indeed, providing such drugs may even increase suicide rates.⁵² Thus, it is uncertain that gender-transition procedures will bring minors the benefits they promise.

While there is research that supports gender transitions for children diagnosed with gender dysphoria, that research is unreliable. Researchers operate in an ideologically charged environment where simply authoring a work disconfirming prevailing ideas about gender dysphoria can jeopardize careers. At times, it seems like the medical profession’s approach to gender dysphoric children is influenced more by shifting cultural and political winds than by science and children’s needs.

For instance, activists have targeted the jobs of respected experts in the field of gender dysphoria for not supporting medical transitions for every child expressing discomfort for their gender.⁵³ Dr. Kenneth Zucker was a respected psychologist at Toronto’s Centre for Addiction and Mental Health (“CAMH”), running its gender identity clinic.⁵⁴ Zucker was one of the leading experts in the field of child gender dysphoria, helping write both the definition of “gender dysphoria” for DSM-5 (a leading diagnostic manual for mental disorders published by the American Psychiatric Association) and the Standards of Care for the World Professional Association for Transgender Health (“WPATH”).⁵⁵ Zucker advocated an approach termed “watchful waiting” for children expressing gender dysphoria, seeking first “to challenge the notion that biological sex was the source of the patient’s problem and, wherever possible, to alleviate the dysphoria” rather than immediately providing medical transitions.⁵⁶ In 2015, activists discontented by his approach to treatment sued Zucker under a recently enacted Ontario law banning “conversion therapy,” forcing CAMH to fire Zucker and shut down its gender identity clinic.⁵⁷

Activists have also targeted journals and authors for publishing scholarship suggesting many children diagnosed with gender dysphoria are falling prey to “peer contagion,” rather than pursuing their true gender identity.⁵⁸ In 2018, Prof. Lisa Littman, an OB/GYN then teaching at Brown University, wrote an article suggesting the rapid rise of gender dysphoria in female adolescents may be partially attributed to “social contagion,” a phenomenon she termed “Rapid Onset Gender Dysphoria” (“ROGD”).⁵⁹ According to Littman’s research, transgender identification in biologically female adolescents frequently occurred “out of the blue” after extended use of social media and was “sharply clustered in friend groups,” suggesting that it often resulted from “peer contagion” (i.e., ROGD) rather than authentic identification with the male sex.⁶⁰ Littman’s research suggests that medical transitions are ineffective and often harmful for adolescents suffering from ROGD – since they will not address the underlying issues — and that alternative therapeutic approaches are preferable.⁶¹ Upon publication, activists attacked Littman and the report, accusing Littman of being an anti-transgender bigot advancing dangerous theories aimed at harming transgender-identifying adolescents⁶²—all this though Littman is progressive.⁶³ Activists successfully pressured Brown University and PLoS One to issue apologies for Littman’s article,⁶⁴ and also browbeat Rhode Island’s Department of Health to terminate Dr. Littman’s consultancy on infant and pregnancy care.⁶⁵

Activists have pressured universities to revoke tenure from academics proposing heterodox theories of gender identity,⁶⁶ and conducted campaigns to pressure universities to disavow research critical of gender transitions.⁶⁷ Ultimately, the pressure campaigns and backlash have created an intellectual environment where any unfavorable research is dismissed as based on nothing but “bad statistics, bad science, homophobia, and transphobia”⁶⁸ and where the very idea that “there needs to be a scientifically justified reason” for gender transitions is denounced as “transphobic.”⁶⁹

The above incidents cast doubt on the impartiality of research in the area and of commonly accepted standards of care: how is unbiased research possible when deviations from the party line may subject you to personal attacks and even threaten your employment? Indeed, even many supporters of an affirmative approach to gender transitions for children are concerned that medical professionals are being too deferential in evaluating patients’ requests to medically transition, increasing the potential for future regret.⁷⁰

The Fourteenth Amendment’s Equal Protection Clause provides that a State may not “deny to any person within its jurisdiction the equal protection of the laws.”⁷¹ States’ decision to classify people based on their membership in a particular group is subject to judicial review, which varies depending on the classification. There are three levels of scrutiny (ordered in descending intensity), depending on whether the state is disadvantaging a “suspect” or “quasi-suspect” class (or neither): (1) strict scrutiny⁷² for “suspect classes,”⁷³ most notably race⁷⁴; (2) “intermediate”⁷⁵ or “heightened”⁷⁶ scrutiny for “quasi-suspect” classes⁷⁷ like sex⁷⁸ or illegitimacy⁷⁹; and (3) rational basis review for all other classes.⁸⁰ For the first two levels of scrutiny, courts will presume -- subject to rebuttal -- that the government has acted unconstitutionally.⁸¹ Courts will only presume the constitutionality of state’s classification if it is merely subject to rational basis review.⁸² Child sex transition bans present a categorization dilemma: are they medical regulations subject to rational basis review or sex-based classifications subject to intermediate scrutiny?

The Supreme Court has long given States broad leeway to regulate the medical profession despite Fourteenth Amendment challenges.⁸³ The State may set conditions on the practice of medicine and may withdraw medical licenses and impose criminal penalties for failure to abide by the conditions.⁸⁴ In particular, the Court has permitted states “to regulate the administration, sale, prescription and use of dangerous” medication.⁸⁵ This power includes the power both to proscribe and regulate the administration or prescription of particular drugs.⁸⁶

That said, the Supreme Court has adopted a different approach in its contraception and—until Dobbs⁸⁷—abortion cases, where it imposed serious constitutional limits on states’ rights to regulate the medical profession.⁸⁸ Even so, in creating heightened barriers for state regulation of these medical treatments, the Court has generally revealed that its decisions were mainly motivated by patients’ privacy rights rather than the rights of medical professionals.⁸⁹ Indeed, previous abortion decisions allowed States to regulate medical professionals directly so long as the regulations did not place an “undue burden” on women (defined as occurring when a regulation’s “purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability”).⁹⁰ Thus, the Supreme Court’s precedents suggest that when patients lack an underlying constitutional right (such as a liberty interest in procuring contraceptives), the State may prohibit its physicians from providing a particular course of medical treatment.⁹¹

The Supreme Court reviews sex-based classifications more stringently than it does classifications falling under its traditional rational basis review. The Court has held that “the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an 'exceedingly persuasive justification' for the classification.”⁹² The State’s proffered justification “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females,” particularly “generalizations about ‘the way women are,’ [or] estimates of what is appropriate for most women.”⁹³

The Court’s sex discrimination jurisprudence under the Equal Protection clause reflects a desire to prevent unnecessary and arbitrary distinctions (often based on a mere stereotype) based solely on membership of one sex or the other.⁹⁴ The Court’s jurisprudence does not ban all sex-based classifications but will allow those that (1) serve important government objectives and (2) are closely and substantially related to achieving those objectives.⁹⁵ The Court’s jurisprudence reflects a desire to protect members from a particular sex from being disadvantaged--particularly when one sex is disadvantaged based on nothing more than stereotypes⁹⁶—while allowing States to consider sex to redress past discrimination⁹⁷ or when sex-based differences are relevant.⁹⁸ The Supreme Court has further found that the Equal Protection clause may only be used to invalidate state action that either facially discriminates based on sex or is purposefully intended to discriminate against a sex.⁹⁹ Furthermore, the Court has explicitly rejected the idea that the Equal Protection clause encompasses discrimination that is not directly a sex-based classification, such as classifications based on traits associated solely with one sex.¹⁰⁰ Thus, the Court’s Equal Protection sex discrimination jurisprudence conveys an intent to protect solely against arbitrary discrimination against members of either sex — with sex considered a “quasi-suspect” class.¹⁰¹

Under the Court’s Equal Protection jurisprudence, Courts should not subject child gender transition bans to heightened scrutiny, since they do not create a classification based on membership of a particular sex (a constitutional “suspect class”). In ongoing litigation over the Act’s constitutionality, states assert that their ban does not create a classification based on transgender status.¹⁰² Still, even if courts conclude that the bans do draw a classification based on transgender status, such a distinction does not count as a sex-based classification under Supreme Court precedent—even Bostock. Finding that the bans do create a sex-based classification would undermine the Supreme Court’s Equal Protection jurisprudence by surreptitiously creating two new suspect classifications: transgender status and homosexuality.

So far, the Court has refused to consider whether the Fourteenth Amendment prohibits classifications based on transgender status, whether as a form of sex-discrimination or as discrimination against a free-standing protected class.¹⁰³ The one case the Supreme Court has decided dealing with discrimination based on transgender status—Bostock—only applied to causes of action arising under Title VII rather than to the Equal Protection clause.¹⁰⁴ Bostock presented the Supreme Court with a single issue: “the scope of Title VII’s protections for . . . transgender persons.”¹⁰⁵ The Court’s decision hinges on assertion that the “ordinary public meaning” of Title VII’s language at the time of its enactment prohibited covered employers from firing—or engaging in other forms of employment discrimination against employees—“based in part on sex.”¹⁰⁶ The Court then concluded that this prohibition extends to precluding an employer from firing employees because they identify as transgender, since such employer necessarily considers sex when it “intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”¹⁰⁷ The Court’s decision expounds only on the meaning and application of Title VII’s prohibition of “sex” discrimination in employment and indeed omits any mention of the Fourteenth Amendment.¹⁰⁸ Thus, lower courts are not bound to apply Bostock (a decision interpreting the provisions of a statute dealing with employment discrimination) when interpreting the Equal Protection clause (a constitutional provision). Indeed, the Supreme Court has recognized that its interpretation of the Fourteenth Amendment is not tethered to its reading of Title VII.¹⁰⁹ Thus, since the Supreme Court has not directly addressed the issue and since Bostock only applies to Title VII, Supreme Court precedent does not mandate that discrimination based on transgender status be treated as sex-discrimination under the Equal Protection clause.

Furthermore, an analysis of Bostock reveals that its logic is not persuasive in the Equal Protection context.¹¹⁰ As shown above, the Equal Protection clause is fundamentally a class-based measure, protecting the rights of members of “protected classes” (such as members of a race or sex) to not be arbitrarily treated worse by the State than the members of a different class. To the contrary, Bostock’s holding¹¹¹ relies on a fundamental rejection of the class model embodied by the Supreme Court’s Equal Protection jurisprudence. Rather than focus on whether the challenged employment decisions discriminated against plaintiffs because of their membership in a particular class protected by the statute, the Bostock Court found that Title VII’s prohibitions on discrimination in employment are individualized in nature.¹¹² According to Bostock, courts examining sex-discrimination claims under Title VII must ask whether sex played a role in an employer’s treatment of a given individual,¹¹³ not whether the employer discriminated against a protected class.¹¹⁴ The Court determined that plaintiffs could satisfy a claim of sex discrimination under Title VII by showing that sex was a “but for” cause of an adverse employment decision,¹¹⁵ and that transgender persons who had been discriminated against because of their transgender status can satisfy this “but for” test.¹¹⁶ Thus, Bostock’s finding that discrimination based on transgender status is sex discrimination relies on a vision of sex discrimination under Title VII that is distinct from the Equal Protection clause’s approach: one that focuses on whether sex has been a “but for” cause of discrimination for a particular individual, rather than whether a classification is arbitrarily burdening one sex.

Imposing Bostock’s vision of sex discrimination onto the Equal Protection clause also runs contrary to Supreme Court decisions that make it clear that only classifications that disadvantage one sex compared to the other count as “sex-based” classifications¹¹⁷ rather than any distinction connected to sex. In Geduldig v. Aiello, the Court found that the exclusion of pregnancy from a state disability insurance system was not a sex-based classification because there was “no risk from which men are protected and women are not.”¹¹⁸ The Court explained that, even though only women can become pregnant, the exclusion of disability was not a sex-based classification because there was a “lack of identity” between pregnancy and sex.¹¹⁹ As a practical matter, the program’s classification divided “potential recipients into two groups—pregnant women and nonpregnant persons” with the first group being “exclusively female” and the second including members of both sexes.¹²⁰ Applying Bostock’s logic to the Equal Protection clause would run contrary to Geduldig, since distinctions based on pregnancy cannot but take sex into account—given that only women can become pregnant. Thus, Geduldig makes clear the fundamental divergence between Bostock’s approach to sex discrimination and the Supreme Court’s approach to sex-based classifications: while the former would find any and all consideration of sex in employment unlawful, the latter only subjects classifications that disadvantage one sex relative to the other to heightened scrutiny.

Furthermore, if courts find distinctions based on transgender status to be sex-based classifications, they will create new suspect classifications in opposition to the Supreme Court’s jurisprudence. Extending Bostock’s logic to the Equal Protection’s sex-classification jurisprudence would de facto create two new suspect classifications: transgender status and homosexuality. If courts choose to apply Bostock’s legal standard wholesale to the Equal Protection Clause, any legislation that draws distinctions based on homosexuality or transgender status would count as a sex-based classification subject to heightened scrutiny.¹²¹ This decision would mean that the Court’s Equal Protection jurisprudence no longer simply protects men or women from being disadvantaged arbitrarily by law,¹²² but also entitles transgender and gay individuals (regardless of sex) to special solicitude by courts. While a few federal courts have found that transgender persons are indeed a protected class,¹²³ the Supreme Court has been reluctant to create new suspect classifications in its Equal Protection jurisprudence.¹²⁴ Indeed, although the Court has never addressed the issue of whether transgender status should constitute a protected class,¹²⁵ the Court has on numerous occasions avoided giving protected class status to homosexuality even as it has delivered a stream of victories for gay rights.¹²⁶ In these decisions, the Supreme Court has implicitly endorsed the idea that homosexuality is not a protected class.¹²⁷ Courts should avoid surreptitiously adding—not one, but two—new suspect classifications to the Equal Protection clause, particularly considering the Supreme Court’s reticence to create new suspect classifications and past decisions based on the premise that homosexuals are not a protected class.

Thus, child gender transition bans are not subject to heightened scrutiny under the Court’s current class-based approach to the Equal Protection clause because they do not draw distinctions based on membership in a particular sex. Assuming the Court maintains the same general class-based approach to Equal Protection, challengers must show that transgender persons constitute a “quasi-suspect” class to strike down the Act as a violation of the Equal Protection clause. Courts should avoid reaching that conclusion since it would entail the creation of a new “quasi-suspect” class in opposition to Supreme Court precedent. Instead, courts should subject the bans to the deferential rational basis review traditionally afforded to regulations of the medical profession—even those backed by criminal sanctions. The Act has the practical effect of modifying the standards of the medical profession in the State, dictating that medical professionals who provide gender transition procedures are engaging in “unprofessional conduct” and will be disciplined by the relevant “licensing entity or disciplinary review board.”¹²⁸ Supreme Court precedent reveals that child gender transition bans are permissible regulations of the medical profession. States may set conditions for the maintenance of medical licenses, as Arkansas has done, or criminalize certain conduct by medical professionals, as Alabama has chosen to do. Such conditions are constitutionally acceptable, so long as they do not undermine an underlying constitutional right held by the patient; child gender transition bans do not burden such a right, since there is no constitutional right to procure puberty blockers or hormones for gender-transition purposes.

Even if courts subject child gender transition bans to intermediate scrutiny under the Equal Protection Clause — rather than to rational basis review — as creating a sex-based classification, Arkansas can show an interest sufficient to pass constitutional muster. Under intermediate (also known as “heightened”) scrutiny, the State must show that its classification: (1) serves important government objectives, and (2) is substantially related to achieving those objectives.¹²⁹ The bans pass heightened scrutiny because they are substantially related to (at least) three different important government objectives: (1) protecting children from sterilization; (2) preventing dangerous health effects; and (3) ensuring the medical profession serves patients’ best interests.

Child gender transition bans satisfy both elements of the intermediate scrutiny test because (1) they serve the important government objective of preventing the sterilization of children and (2) prohibitions on prescribing puberty blockers and cross-sex hormones to minors for physical transitions are substantially related, indeed necessary, to protecting children from sterilization.

The bans’ classification serves the important government objective of protecting children from sterilization. While the Court’s jurisprudence has failed to specify what constitutes an “important government objective,”¹³⁰ it does provide that the asserted government objective must be “genuine, not hypothesized or invented post hoc in response to litigation” and “must not rely on overbroad generalizations about . . . males and females.”¹³¹ Here, the states’ interest in protecting children from infertility is “genuine” and was asserted before litigation. The legislative findings in both Alabama and Arkansas, outlining the “mischief”¹³² each state’s child gender transition ban was intended to remedy, specifically highlighted that cross-sex hormones lead to irreversible infertility.¹³³ Likewise, legislatures’ belief that bans will protect children from sterilization relies not on gender stereotypes but on the available medical literature.¹³⁴ Moving on to the weight of the government’s objective itself, states’ interest in preventing the future irreversible infertility of children is an important objective. The Supreme Court has recognized the importance of the ability to procreate and the significant harm caused by sterilization.¹³⁵ In Skinner, the Court found that an Oklahoma law allowing the State to sterilize “habitual criminal[s]” violated the Fourteenth Amendment’s Equal Protection clause.¹³⁶ The Court recognized the ability to procreate as one of the “basic civil rights of man,” particularly given that it is “fundamental to the very existence and survival” of humankind.¹³⁷ The Court noted that sterilization has “far-reaching and devastating effects,” inflicting an “irreparable injury” that “forever deprive[s] [the sterilized person] of a basic liberty.”¹³⁸ Given the importance of this right, the Court applied strict scrutiny to Oklahoma's law and concluded that it failed to pass constitutional muster.¹³⁹ If, as the Skinner court recognized,¹⁴⁰ the freedom to procreate is a fundamental constitutional right, protecting children’s ability to procreate is an important government objective. The importance of this objective is only accentuated by the potential that transgender-identifying children will later regret, detransition, or desist from transgender identification,¹⁴¹ or develop a desire to procreate (even if retaining a transgender identity).¹⁴²

Further, the bans’ classification is substantially related to an important State objective—protecting children from irreversible sterilization. A classification subject to intermediate scrutiny is substantially related to a government objective when the discriminatory classification itself provides a “substantial aid” to achieving the important government objective.¹⁴³ When determining the means to promote important government objectives, states may consider “physical differences between men and women.”¹⁴⁴ Thus, once we assume the bans create a sex-based classification, the key question is whether considering sex is a substantial aid to the State’s goal of preventing the sterilization of children. The answer is yes: in order to determine when use of cross-sex hormones will lead to infertility (and thus when prescribing them should be banned), the State must take the child’s sex into account since physical differences between boys and girls mean that sex hormones will lead to infertility only in children of one sex but not those of the other. The medical evidence supports the necessity and utility of the ban’s sex-based classification, showing that giving children of one biological sex the hormones of the other will generally cause irreversible infertility,¹⁴⁵ while giving children the sex hormones of their own biological sex will have no impact on fertility.¹⁴⁶ This difference means the bans prohibit the use of hormones in minors only when they would lead to infertility — when the hormones associated with a particular biological sex are administered to children of the opposite biological sex. Thus, the bans’ sex-based classification—allowing the prescription of testosterone (and other male sex hormones) to biological males but not females, while allowing the prescription of estrogen (and other female sex hormones) to biological females but not males—is substantially related to preventing irreversible infertility resulting from the medical treatment of children.

In sum, child gender transition bans can survive heightened scrutiny under the Court’s sex discrimination jurisprudence under the Equal Protection Clause because (1) prohibitions on the use of hormones for the physical sex transitions of minors serve the important government objective of protecting children from irreversible sterilization, and (2) considering sex—by allowing medical professionals to prescribe sex hormones only to children of that particular sex—is necessary to substantially aid states’ important objective of protecting children from irreversible sterilization because sex hormones will lead to sterilization only when administered to children of the opposite biological sex.

Child gender transition bans also satisfy the intermediate scrutiny test because (1) they promote the important government objective of preserving the health of children and (2) the bans’ prohibition on prescribing puberty blockers and cross-sex hormones to children for physical sex transitions is substantially related to protecting children’s health.

The Act’s classification serves the important government objective of protecting children’s health. Here, the State’s interest in protecting children’s health is genuine and was asserted before litigation: both the Arkansas¹⁴⁷ and Alabama¹⁴⁸ legislatures highlighted the risks of cross-sex hormones. These health risks are not merely the product of the legislature’s imagination or stereotypes; indeed, as outlined above, the medical literature recognizes that cross-sex hormones administered for sex transition purposes may result in a variety of different negative health effects.¹⁴⁹ Likewise, puberty blockers administered for sex transition purposes may also result in negative health effects.¹⁵⁰

Not only is the State’s interest genuine, but it also concerns one of the State’s most weighty interests: protecting the health of its citizens. The Supreme Court has long recognized that states have an interest in protecting the health of its citizens.¹⁵¹ Indeed, this interest is so powerful as to count as a “compelling” interest¹⁵² that may justify classifications subject to a “strict scrutiny” under the Equal Protection clause¹⁵³ and impairing fundamental rights under the Due Process Clause.¹⁵⁴

The Supreme Court has recognized that states’ interest in the health of its citizens withstands intermediate scrutiny under the Equal Protection clause, finding that protecting public health and safety is an important government objective.¹⁵⁵ This compelling interest in preserving health is accentuated even more here by the fact that states are attempting to protect children’s health; indeed, the Supreme Court has recognized “a compelling interest in protecting the physical and psychological well-being of minors.”¹⁵⁶ The Supreme Court has specifically recognized that the State’s compelling interest in preserving the health of its citizens extends to regulating “the administration, sale, prescription, and use of dangerous” drugs — such as the puberty-blockers and cross-sex hormones involved here.¹⁵⁷ Thus, states’ interest in protecting children’s health is more than strong enough to constitute an important government objective for purposes of heightened scrutiny.

The bans’ classification is substantially related to the State’s important objective of protecting children’s health, because it is a “substantial aid” to protecting children’s health. In order to determine when the use of cross-sex hormones and puberty blockers will lead to negative health effects on children, states must take the child’s sex into account since physical differences between boys and girls mean that sex hormones/puberty blockers will lead to the negative health effects outlined above only in children of one sex but not those of the other. The medical evidence lends supports this sex-based classification, since it reveals severe negative health effects that result only from administering sex hormones of one biological sex to children of the other¹⁵⁸ and from administering puberty blockers to children without pubertal issues.¹⁵⁹ This difference in the drugs’ effects means the Act bans the use of the banned drugs in children only when they would lead to severe negative health effects — when the hormones associated with a particular biological sex are administered to children of the opposite biological sex, and when puberty blockers are administered for gender-transition purposes.

Thus, the bans’ sex-based classification—allowing the prescription of drugs to facilitate the natural pubertal development according to the child’s biological sex while banning it for physical sex transitions—is substantially related to preventing severe negative health effects resulting from the medical treatment of children.

Finally, child gender transition bans satisfy both elements of the intermediate scrutiny test because (1) they serve the important government objective of ensuring medical standards of care serve patients’ interests and (2) the bans’ displacement of the “gender-affirming care” standard is substantially related to ensuring the medical profession best serves patients’ interests.

The bans’ classification serves the important government objective of ensuring the medical profession employs standards of care that best serve patients. Through their legislative findings, both the Arkansas¹⁶⁰ and Alabama¹⁶¹ legislatures expressed their concern with the appropriateness of current medical standards of care for children diagnosed with gender dysphoria.

As a practical matter, in prohibiting the use of certain drugs and procedures for “gender transition” purposes,¹⁶² the bans displace the most popular medical standard for treating children diagnosed with gender dysphoria—“gender-affirming care.”¹⁶³ “Gender-affirming care” encourages physicians to “affirm” patients who express the symptoms of gender dysphoria by endorsing (or encouraging) their adoption of the gender identity opposite to their biological sex.¹⁶⁴ In practice, “gender-affirming care” encourages medical professionals to freely prescribe puberty blockers and cross-sex hormones (and, later on, surgery) to children who have been diagnosed with gender dysphoria, since denying such treatment is considered inconsistent with “affirming” children’s gender identity.¹⁶⁵

Although States often defer to the medical profession’s judgments,¹⁶⁶ States may modify medical standards of care—including by prohibiting procedures—to ensure they better serve patients’ best interests,¹⁶⁷ particularly where the State has reason to distrust the judgment of ideologically biased medical professionals.¹⁶⁸ The State’s interest in ensuring medical standards of care serve patients derives from the State’s interest in the public’s health and safety,¹⁶⁹ and extends to the power to legislatively override or amend the medical profession’s standards of care.¹⁷⁰ Thus, the State has an important interest in ensuring that the medical standard of care for children diagnosed with gender dysphoria best serves the children’s interests. Because of this interest, the State may amend or override a standard of care—including the “gender-affirming care” standard—it determines conflicts with children’s best interests.

The bans’ classification is substantially related to States’ important objective—ensuring medical standards of care best serve children diagnosed with gender dysphoria—because, consulting the available evidence, the States have reasonably concluded that “gender-affirming care” creates risks to children’s health that outweigh its benefits. Medical evidence shows that gender-transition procedures for minors carry significant health risks and lead to irreversible sterilization.¹⁷¹ Based on this evidence, States can rationally conclude that overriding the “gender-affirming” standard of care will prevent the substantial risks to children when medical professionals routinely provide gender transition procedures to children diagnosed with gender dysphoria. Furthermore, States can conclude that the benefits of “gender-affirming” care do not outweigh the risks, since these procedures are experimental and doubtfully beneficial to patients’ well-being. Advocates for “gender-affirming care” argue that providing children diagnosed with gender dysphoria with “affirming” treatment—including puberty blockers, cross-sex hormones, and ultimately genital/upper-body surgeries—is beneficial because (1) it reduces suicide rates and ideation and (2) helps counter depression and generally benefits mental and emotional well-being.¹⁷² Despite activists’ claims, the evidence to support these claims about the benefits of “gender-affirming” care is paltry at best. First, studies do not reveal that suicidal ideation and attempts declined following “gender-affirming care”.¹⁷³ Second, it is unclear whether “gender-affirming care” relieves gender dysphoria or generally benefits mental and emotional well-being.¹⁷⁴ There is also evidence indicating the lack of each of these alleged benefits.¹⁷⁵ Ultimately, the available evidence cannot establish that “gender-affirming” care is as beneficial as its advocates make it out to be. To the contrary, there is sufficient evidence to support States’ conclusion that its benefits are either limited or non-existent, and insufficient to outweigh its risks.

Thus, States can rationally conclude that the medical evidence points to that the risks of the “gender-affirming” standard outweigh its benefits. Based on this common-sense impression, a legislative override of the “gender-affirming care” standard is substantially related to its important interest in children’s health, satisfying heightened scrutiny.

Conclusion

Debates over state regulation of child gender transitions are not going away. The issues highlighted by child gender transition bans will continue to be debated in federal courts and the public sphere. First, courts will have to face the issue of how laws making distinctions based on transgender status should be treated under the Equal Protection clause—both because of an outburst of state laws making such distinctions (running the gamut from bathroom bills to restrictions on biological males in female sports) and because of the Supreme Court’s recent Bostock decision. Activists will press federal courts to extend Bostock’s logic from Title VII to the Equal Protection context, arguing that courts should treat classifications based on transgender status as another type of sex-based classifications that should be subject to heightened scrutiny. If federal courts accept this argument, it could spell doom for many of the above-mentioned regulations based on transgender status. Second, debates will continue to rage about how children diagnosed with gender dysphoria should be treated. Should medical professionals freely administer physically altering drugs to prevent puberty and give children the body of the sex they identify with, or should they be compelled by the State to provide such treatment only to adults? Are attempts to ban child gender transitions motivated by a desire to protect children from physically harmful treatments with irreversible effects they may later regret or are they merely harmful attacks on transgender children that are based on outdated bigotry? These and similar questions will be litigated and debated—because of the ballooning number of transgender-identifying children, the many State legislatures considering similar legislation, and the increasing political valence and salience of transgender issues.

This Article attempts to make a modest contribution to these legal and political debates. First, this Article attempts to show that federal courts should avoid extending Bostock’s logic to the Equal Protection context by concluding that distinctions based on transgender status are sex-based classifications. Bostock does not govern interpretations of the Fourteenth Amendment, and its logic runs contrary to the Supreme Court’s jurisprudence—which finds sex-based classifications, only when a state’s distinction disadvantages one sex relative to the other. Applying Bostock’s logic to the Equal Protection clause would not only contradict the Supreme Court’s prior approach to sex-based classifications, would also serve as a back-door means of creating new “quasi-suspect” classes despite the Supreme Court’s repeated refusal to do so. Second, acts like the SAFE Act and V-CAP serve important government interests—protecting children from sterilization, preventing dangerous health effects, and ensuring the medical profession serves patients’ best interests—and should be found constitutional, even if courts decide to subject laws making distinctions based on transgender status to heightened scrutiny. Striking down child gender transition bans will only prevent States from protecting children with gender dysphoria.

*Northwestern Pritzker School of Law, Class of 2023. Many thanks to Professor Andrew Koppelman for supervising this article and providing useful comments, guidance, and push-back.

¹See Brandon Griggs, America’s Transgender Moment, CNN (June 1, 2015, 3:06 PM), https://www.cnn.com/2015/04/23/living/transgender-moment-jenner-feat/index.html (reporting that recognition of transgenderism has “reached a new level”).

²Jody L. Herman et al., Williams Inst., Age of Individuals Who Identify as Transgender in the United States 4 (2017), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Age-Trans-Individuals-Jan-2017.pdf.

³See, e.g., Christy Mallory & William Tentindo, Williams Inst., Medicaid Coverage for Gender-Affirming Care 19 (2019), https://williamsinstitute.law.ucla.edu/wp-content/uploads/Medicaid-Gender-Care-Oct-2019.pdf (stating that express policies allow Medicaid funding for gender transitions in 18 states); Conversion “Therapy” Laws, Movement Advancement Project, https://www.lgbtmap.org/equality-maps/conversion_therapy (last visited June 28, 2022) (recording “conversion therapy” bans in 28 states); Eugene Scott, State Department Issues First Passport with ‘X’ Gender Marker, Wash. Post (Oct. 27, 2021, 1:13 PM), https://www.washingtonpost.com/politics/passports-gender-state-united-states-travel/2021/10/27/0db9cb0e-3744-11ec-91dc-551d44733e2d_story.html (detailing State Department changes to issue passports with a third gender, “X,” and to allow individuals to change their passport gender without proof of surgery).

⁴Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020).

⁵Herman et al., supra note 2, at 4 (estimating almost 150,000 American children between 13 and 17 years old, or around 0.73% of the age cohort, identify as transgender).

⁶See, e.g., Teo Armus, A Texas Man Says His 7-Year-Old Isn’t Transgender. Now His Custody Fight Has Reached the Governor’s Office, Wash. Post (Oct. 24, 2019, 6:13 AM), www.washingtonpost.com/nation/2019/10/24/james-younger-luna-transgender-greg-abbott (reporting on a biological boy whose parents are in a legal fight to determine his gender).

⁷See generally Emilie Kao, We’ll Tell You What “60 Minutes+” Won’t About How the Transgender Movement Endangers Kids, Heritage Found. (June 30, 2021), https://www.heritage.org/gender/commentary/well-tell-you-what-60-minutes-wont-about-how-transgender-movement-endangers-kids; Abigail Shrier, Irreversible Damage: The Transgender Craze Seducing Our Daughters (2020); Ryan T. Anderson, When Harry Became Sally: Responding to the Transgender Moment (2018); Ryan T. Anderson, Transgender Ideology Hurts Kids, Daily Signal (Jan. 29, 2018), https://www.dailysignal.com/2018/01/29/transgender-ideology-hurts-kids/.

⁸See Legislation Affecting LGBT Rights Across the Country, ACLU https://www.aclu.org/legislation-affecting-lgbt-rights-across-country (last updated Dec. 17, 2021) (noting that 2021 Session Bills “prohibiting healthcare for transgender youth” were introduced in 21 states).

⁹Arkansas Save Adolescents from Experimentation (SAFE) Act, Ark. Code Ann. §§ 20-9-1501–1504 (West 2021).

¹⁰Alabama Vulnerable Child Compassion and Protection Act (V-CAP), Ala. Code §§ 26-26-1–9 (2022).

¹¹HB 1570 – To Create the Arkansas Save Adolescents from Experimentation (SAFE) Act, Ark. State Legislature, https://www.arkleg.state.ar.us/Bills/Detail?id=hb1570&ddBienniumSession=2021%2F2021R&Search= (last visited July 18, 2022).

¹²Id.

¹³Ark. Code Ann. § 20-9-1504(a) (West 2021). The Act also creates a private cause of action for violating the Act and gives the State Attorney General the power to bring suits to enforce compliance with the Act. Id.

¹⁴§ 20-9-1501(6)(A)(ii).

¹⁵See, e.g., Samantha Schmidt, Arkansas Passes Bill Restricting Access to Medical Treatments For Transgender Children, Wash. Post (Mar. 29, 2021, 6:13 PM), https://www.washingtonpost.com/dc-md-va/2021/03/29/arkansas-passes-bill-restricting-access-medical-treatments-transgender-children/; Jennifer Finney Boylan, Keeping Trans Kids from Medicine Doesn’t Make Them Disappear, N.Y. Times (Apr. 7, 2021), https://www.nytimes.com/2021/04/07/opinion/antitrans-bills-children-puberty-arkansas-visibility.html; Marc Ramirez, 'Children Will Die': Transgender Advocates Warn About Risks As More States Consider Banning Gender-Affirming Care for Kids, USA Today (Apr. 12, 2021, 2:55 PM), https://www.usatoday.com/story/news/nation/2021/04/12/arkansas-trans-minors-law-endangers-lives-snubs-doctors-experts-say/7144794002/; Daniel Reynolds, Why Arkansas Anti-Trans Law Is So Dangerous For LGBTQIA+ Youth, HealthLine (Apr. 14, 2021), https://www.healthline.com/health-news/why-arkansas-anti-trans-law-is-so-dangerous-for-lgbtqia-youth?c=661814686723.

¹⁶See, e.g., Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare For Minors, 134 Harv. L. Rev. 2163, 2178–85 (2021); Ronald J. Krotoszynski, Jr., The War on Trans Kids Is Totally Unconstitutional, Atlantic (May 16, 2021), https://www.theatlantic.com/ideas/archive/2021/05/anti-transgender-children-laws-unconstitutional/618864/.

¹⁷ACLU Sues Arkansas Over Ban on Health Care for Transgender Youth, ACLU, (May 25, 2021) https://www.aclu.org/press-releases/aclu-sues-arkansas-over-ban-health-care-transgender-youth.

¹⁸Statement of Interest of the United States, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. 2021) (No. 4:21-CV-450-JM), https://www.justice.gov/file/1405411/download.

¹⁹Rutledge, 551 F. Supp. 3d at 893–94.

²⁰Alabama Governor Signs Sweeping Law Banning Medication for Transgender Youth, CBS News, https://www.cbsnews.com/news/alabama-governor-kay-ivey-signs-law-transgender-youth-healthcare-ban/ (last updated Apr. 8, 2022, 5:45 PM).

²¹Alabama Vulnerable Child Compassion and Protection Act (V–CAP), Ala. Code § 26-2-4(a) (2022).

²²§ 26-2-4(a)(1).

²³§ 26-2-4(a)(2).

²⁴§ 26-2-4(a)(3).

²⁵§ 26-2-4(c).

²⁶See, e.g., Nick Morrow, Alabama Senate Passes Anti-Trans Vulnerable Child Compassion and Protection Act, Human Rights Campaign (Mar. 9, 2022), https://www.hrc.org/news/alabama-senate-passes-vulnerable-child-compassion-and-protection-act (claiming V-CAP was passed “solely so lawmakers can discriminate against transgender people”); James Factora, The Harshest Ban on Trans Healthcare Just Went Into Effect in Alabama, Them (Mar. 9, 2022), https://www.them.us/story/the-harshest-ban-on-trans-healthcare-in-history-just-went-into-effect-in-alabama; Erin Wise, Mother of Transgender Teen: New Alabama Laws an ‘Attack for Just Being Who You Are’, Fox 17: WZTV Nashville (Apr. 9, 2022), https://fox17.com/news/nation-world/mother-of-transgender-teen-new-alabama-laws-an-attack-for-just-being-who-you-are-vulnerable-children-compassion-and-protection-act-gender-affirming-care; Kimberly Nordyke, John Oliver Blasts Alabama Law Blocking Gender-Affirming Care For Transgender Youth: “Absolutely Appalling”, Hollywood Reporter (May 15, 2022, 10:26 PM), https://www.hollywoodreporter.com/tv/tv-news/john-oliver-alabama-law-transgender-youth-kay-ivey-1235147271/.

²⁷Eknes-Tucker v. Marshall, No. 2:22-CV-184-LCB, 2022 WL 1521889 (M.D. Ala. May 13, 2022).

²⁸Amended Complaint in Intervention at 2, Eknes-Tucker v. Marshall, 2022 WL 1521889 (No. 2:22-CV-184-LCB), https://www.glad.org/wp-content/uploads/2022/05/doj-amended-complaint.pdf.

²⁹Eknes-Tucker, 2022 WL 1521889, at *9–10.

³⁰Ark. Code Ann. § 20-9-1501(6)(A)(ii) (West 2021).

³¹Id.

³²Alabama Vulnerable Child Compassion and Protection Act (V–CAP), Ala. Code § 26-2-4(a)(1) (2022).

³³See § 26-2-4(a)(2) (banning prescribing or administering “testosterone or other androgens to females”); § 26-2-4(a)(3) (banning prescribing or administering “estrogen to males”).

³⁴Pubertal Blockers for Transgender and Gender-Diverse Youth, Mayo Clinic (June 18, 2022), https://www.mayoclinic.org/diseases-conditions/gender-dysphoria/in-depth/pubertal-blockers/art-20459075.

³⁵Id.

³⁶Id.

³⁷Eli Coleman et al., Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People, 13 Int’l J. Transgenderism 165, 177 (2012).

³⁸Shrier, supra note 7, at 163; see Leuprolide Injection, MedLinePlus (July 15, 2020), https://medlineplus.gov/druginfo/meds/a685040.html.

³⁹Annelou L.C. de Vries et al., Puberty Suppression in Adolescents with Gender Identity Disorder: A Prospective Follow-Up Study, 8 J. Sexual Med. 2276, 2276 (2011); see also Bell v. Tavistock, [2020] EWHC 3274 (Admin) (U.K.), ¶ 136 (“The evidence shows that the vast majority of children who take [puberty blockers] move on to take cross-sex hormones, that [both treatments] are two stages of one clinical pathway and once on that pathway it is extremely rare for a child to get off it.”).

⁴⁰Madeline B. Deutsch et al., Effects of Cross-Sex Hormone Treatment on Transgender Women and Men, 125 Obstetrics & Gynecology 605, 605 (2015).

⁴¹Coleman et al., supra note 37, at 186.

⁴²Maiko A. Schneider et al., Brain Maturation, Cognition, and Voice Pattern in a Gender Dysphoria Case under Pubertal Suppression, 11 Frontiers Hum. Neuroscience 1, 7 (2017) (study showing decline in “operational memory” and “Global IQ” resulting from administration of puberty blockers to female-identifying, biologically male child), https://www.frontiersin.org/articles/10.3389/fnhum.2017.00528/full.

⁴³Coleman et al., supra note 37, at 178; see Tobin Joseph et al., The Effect on GnRH Analogue Treatment on Bone Mineral Density in Young Adolescents with Gender Dysphoria: Findings from a Large National Cohort, J. Pediatric Endocrinology & Metabolism (2019); Henriette A. Delemarre-van de Waal et al., Clinical Management of Gender Identity Disorder in Adolescents: A Protocol on Psychological and Paediatric Endocrinology Aspects, 155 European J. Endocrinology 131, 131 (2006) (highlighting “decrease in height velocity and bone maturation” in children receiving puberty blockers with a potentially higher risk of osteoporosis).

⁴⁴Darios Getahun et al., Cross-Sex Hormones and Acute Cardiovascular Events in Transgender Persons: A Cohort Study, 169 Annals Internal Med. 206–10 (2018); H. Asscheman et al., A Long-Term Follow-Up Study of Mortality in Transsexuals Receiving Treatment with Cross-Sex Hormones, 164 European J. Endocrinology 635, 637—41 (2011) (group of male to female transsexuals receiving cross-sex hormones had a mortality rate 51% higher than general population’s, including a “threefold increased risk of cardiovascular death” that could be tied to the hormones); see also Coleman et al., supra note 37, at 223.

⁴⁵Coleman et al., supra note 37, at 223.

⁴⁶M.E. Kerckhof et al., Prevalence of Sexual Dysfunctions in Transgender Persons: Results From the ENIGI Follow-Up Study, 16 J. Sexual Med. 1, 1–7 (2019).

⁴⁷Coleman et al., supra note 37, at 225.

⁴⁸Treatment: Gender Dysphoria, NHS.UK (May 28, 2020), https://www.nhs.uk/conditions/gender-dysphoria/treatment/.

⁴⁹See Guy T’Sjoen et al., Transgenderism and Reproduction, 20 Current Op. Endocrinology, Diabetes & Obesity 575, 575–79 (2013), W.C. Hembree etal., Endocrine Treatment of Gender-Dysphoric/Gender-Incongruent Persons: An Endocrine Society Clinical Practice Guideline, 102 J. Clinical Endocrinology & Metabolism 3869, 3882 (2017).

⁵⁰Paul W. Hruz, Deficiencies in Scientific Evidence for Medical Management of Gender Dysphoria, 87 Linacre Q. 34, 38 (2019) (“There is a deficiency of scientific study systematically assessing this patient population to understand factors that are correlated with and may contribute to failure to achieve lasting relief of dysphoria following the affirmation of discordant gender identity.”).

⁵¹See Cecilia Dhejne et al., Long Term Follow-Up of Transsexual Persons Undergoing Sex Reassignment Surgery: Cohort Study in Sweden, 6 PLoS One 1, 4, 6 (2011) (finding that providing gender transition treatments did not eliminate the higher risk that transgender-identifying persons will attempt suicide); Noah Adams et al., Varied Reports of Adult Transgender Suicidality: Synthesizing and Describing the Peer-Reviewed Literature, 2.1 Transgender Health 60, 70 (2017) (study showing no meaningful decline, and potentially an increase, in suicidal ideation and attempts among gender dysphoric adults after gender transition); Hruz, supra note 50, at 38 (emphasis added) (“The few studies that examined suicidal ideation before and after gender transition found suicidal ideation to be increased.”)

⁵²Jay P. Greene, Puberty Blockers, Cross-Sex Hormones, and Youth Suicide, Heritage Found. (Jun. 13, 2022), https://www.heritage.org/gender/report/puberty-blockers-cross-sex-hormones-and-youth-suicide (finding that “increasing minors’ access to cross-sex interventions is associated with a significant increase in the adolescent suicide rate”).

⁵³Shrier, supra note 7, at 123–26.

⁵⁴Professional Activities, Kenneth J. Zucker, https://www.kenzuckerphd.com/professional.

⁵⁵Id.; Shrier, supra note 7, at 123.

⁵⁶Shrier, supra note 7, at 124–26.

⁵⁷Id. at 126.

⁵⁸Id. at 25–30.

⁵⁹Lisa Littman, Parent Reports of Adolescents and Young Adults Perceived to Show Signs of a Rapid Onset of Gender Dysphoria, 13 PLoS One (2018), https://journals.plos.org/plosone/article?id=10.1371/journal.pone.0202330.

⁶⁰Shrier, supra note 7, at 26–27.

⁶¹Id. at 27–28.

⁶²See, e.g., Why Are So Many Teenage Girls Appearing in Gender Clinics?, Econ. (Sept. 1, 2018), https://www.economist.com/united-states/2018/09/01/why-are-so-many-teenage-girls-appearing-in-gender-clinics (quoting child gender psychologist comparing Littman’s research to “recruiting from Klan or alt-right sites to demonstrate that blacks really are an inferior race”); Brynn Tannehill, The Discredited Brown Study on Trans Youth Isn’t Just Junk Science—It’s Dangerous, Into (Sept. 19, 2018), https://intomore.com/you/the-discredited-brown-study-on-trans-youth-isnt-just-junk-science-its-dangerous (claiming Littman’s research is a “backdoor attempt to undermine trans lives” that would result in “real-world harm”); Psychology Today Response, Psych. Today (Dec. 5, 2018), www.gdaworkinggroup.com/letter-to-psychology-today (an open letter claiming Littman’s research was “ideologically biased . . . bigotry masquerading as science”); Shannon Keating, Gender Dysphoria Isn’t a ‘Social Contagion,’ According to a New Study, BuzzFeed (Apr. 22, 2019, 2:25 PM), https://www.buzzfeednews.com/article/shannonkeating/rapid-onset-gender-dysphoria-flawed-methods-transgender (quoting activists claiming Littman’s research is “harmful [] anti-trans science” that “pathologizes trans people”).

⁶³See Shrier, supra note 7, at 29 (Littman “spent several years working part-time for Planned Parenthood and, with her husband, contributed several pieces to HuffPost on such topics as the rotten GOP approach to healthcare.”).

⁶⁴Bess Marcus, Dean’s Letter to the School of Public Health Community, Brown U. (Aug. 28, 2018), https://news.brown.edu/articles/2018/08/gender; Joerg Heber, Correcting the Scientific Record on Gender Incongruence—and an Apology, PloS Blogs (Mar. 19, 2019), https://blogs.plos.org/everyone/2019/03/19/correcting-the-scientific-record-and-an-apology/.

⁶⁵Shrier, supra note 7, at 30.

⁶⁶Id. at 128–29 (detailing attacks on Dr. J. Michael Bailey for his book, The Man Who Would Be Queen, advancing a theory of transsexual identity as autogynephilic — including attempts to revoke Dr. Bailey’s tenure at Northwestern University).

⁶⁷See, e.g., Dawn Ennis, Human Rights Campaign Sets Sight on Johns Hopkins After Controversial Trans Report, NBC News (Sept. 1, 2016, 9:11 PM), https://www.nbcnews.com/feature/nbc-out/hrc-sets-sights-johns-hopkins-after-controversial-sexuality-gender-report-n641501 (detailing the Human Rights Campaign’s — an LGBTQ+ activist group — threats to remove Johns Hopkins’ Healthcare Equality Index elite status unless it condemned a report by two Johns Hopkins researchers advocating for non-surgical interventions to gender dysphoric children).

⁶⁸Brynn Tannehill, The End of the Desistance Myth, Huffington Post (Jan. 1, 2016, 4:23 PM), https://www.huffpost.com/entry/the-end-of-the-desistance_b_8903690 (op-ed by a board member of the Trans United Fund attacking research suggesting that 84% of transgender-identifying children ultimately desisted from their transgender identity).

⁶⁹Riley Black, Stop Trying to Out-Science Transphobes, Slate (Mar. 3, 2021), https://slate.com/technology/2021/03/transphobes-science-trap-basic-human-rights.html.

⁷⁰See, e.g., Jesse Singal, When Children Say They’re Trans, The Atlantic (July/Aug. 2018), https://www.theatlantic.com/magazine/archive/2018/07/when-a-child-says-shes-trans/561749/ (quoting Dianne Berg of National Center for Gender Spectrum Health, discussing concerns that medical professionals are failing to live up to best practices for treating gender dysphoria children: “Under the motivation to be supportive and to be affirming and to be nonstigmatizing, I think the pendulum has swung so far that now we’re maybe not looking as critically at the issues as we should be.”).

⁷¹U.S. Const. amend. XIV, § 1.

⁷²Clark v. Jeter, 468 U.S. 456, 461 (1988) (strict scrutiny is reserved for state “classifications based on race or national origin . . . and classifications affecting fundamental rights.”). Strict scrutiny requires the State to show that its “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . to the accomplishment of its purpose.” Regents of Univ. of California v. Bakke, 438 U.S. 265, 305 (1978).

⁷³Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976) (emphasis added) (strict scrutiny applies when a legislative classification “operates to the peculiar disadvantage of a suspect class.”).

⁷⁴See, e.g., Loving v. Virginia, 388 U.S. 1, 10 (1967) (“The clear and central purpose of the Fourteenth Amendment was to eliminate all official state sources of invidious racial discrimination in the States.”).

⁷⁵Clark, 468 U.S. at 461 (“[I]ntermediate scrutiny . . . generally has been applied to discriminatory classifications based on sex . . . .”).

⁷⁶Craig v. Boren, 429 U.S. 190, 197 (1990) (“To withstand constitutional challenge . . . classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.”); see also, J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 135 (1994) (gender-based classifications are subject to “heightened scrutiny”).

⁷⁷Lyng v. Castillo, 477 U.S. 635, 638 (1986) (noting “heightened scrutiny” applies when a “quasi-suspect” class is disadvantaged); Murgia, 427 U.S. at 325 (1976) (Marshall, J., dissenting) (noting women are a “quasi-suspect” class).

⁷⁸See, e.g., United States v. Virginia, 518 U.S. 515, 519–20 (1996) (invalidating the Virginia Military Institute’s ban on the admission of women); Craig, 429 U.S. at 191–92 (1976) (invalidating a law imposing a higher drinking age for men than women); Reed v. Reed, 404 U.S. 71, 72–75 (1971) (invalidating state preference for males in the administration of the “estate of one who dies intestate”).

⁷⁹Lalli v. Lalli, 139 U.S. 259, 265 (1978).

⁸⁰See, e.g., Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“[U]nless a classification warrants some form of heightened review because it jeopardizes exercise of a fundamental right or categorizes on the basis of an inherently suspect characteristic, the Equal Protection Clause requires only that the classification rationally further a legitimate state interest.”).

⁸¹See, e.g., Fisher v. Univ. of Texas at Austin, 570 U.S. 297, 309 (2013) (nothing that under strict scrutiny, the State bears the burden of showing that the classification’s “purpose or interest is both constitutionally permissible and substantial, and that its use of the classification is necessary . . . .”) (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 305 (1978)).

⁸²FCC v. Beach Commc'n’s, Inc., 508 U.S. 307, 314 (1993) (“On rational-basis review, a classification in a statute . . . bear[s] a strong presumption of validity . . . .”).

⁸³See generally Edward P. Richards, The Police Power and the Regulation of Medical Practice: A Historical Review and Guide for Medical Licensing Board Regulation of Physicians in ERISA-Qualified Managed Care Organizations, 8 Annals Health L. 201, 214–21 (1999) (discussing how the Supreme Court has consistently found the Fourteenth Amendment to have no bearing on the States’ police power to create health care laws).

⁸⁴Dent v. West Virginia, 129 U.S. 114, 121–23, 128 (1889) (upholding West Virginia’s medical licensing requirements against a Fourteenth Amendment Due Process challenge); see also Conn v. Gabbert, 526 U.S. 286, 291–92 (1999) (citing Dent to support the proposition that “the liberty component of the Fourteenth Amendment’s Due Process Clause includes some generalized due process right to choose one’s field of private employment, but a right which is nevertheless subject to reasonable government regulation”).

⁸⁵Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 44–46 (1921) (upholding the criminal conviction of a medical professional who violated a state law banning physicians from providing enumerated substances to “habitual user[s]”); see also Robinson v. California, 370 U.S. 660, 664 (1962) (reaffirming Whipple’s holding in saying that “[t]he broad power of a State to regulate the narcotics drug traffic within its borders is not here in issue”).

⁸⁶See, e.g., Whalen v. Roe, 429 U.S. 589, 591–95, 603–04 (1977) (upholding a New York statute requiring medical professionals to report recipients of all prescriptions of Schedule II drugs despite a Fourteenth Amendment challenge by medical professionals).

⁸⁷Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

⁸⁸Richards, supra note 83, at 221.

⁸⁹Griswold v. Connecticut, 381 U.S. 479, 485–86 (1965) (emphasis added) (concluding that a Connecticut law banning the prescription of contraceptives was unconstitutional because it was “repulsive to the notions of privacy surrounding the marriage relationship”); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (recognizing “the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child”); Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 847–48, 853 (1992) (holding that the Fourteenth Amendment guaranteed the right to procure an abortion because the decision to obtain an abortion was a “dimension of personal liberty” guaranteed by the Due Process clause). But see Roe v. Wade, 410 U.S. 113, 156 (1973) (emphasis added) (finding that Texas’s proffered justifications did not justify “broad limitations on the reasons for which a physician and his pregnant patient might decide that she should have an abortion in the early stages of pregnancy”).

⁹⁰Casey, 505 U.S. at 844, 878, 900 (upholding these regulations of physicians performing abortions: a 24-hour waiting period before performing an abortion, an informed consent requirement, a parental consent provision, and record-keeping and reporting requirements); Gonzales v. Carhart, 550 U.S. 124, 156 (2007) (upholding federal prohibition of D&E abortion procedure against challenge by physician, on grounds that the act did not impose a “substantial obstacle” on women’s abilities to procure abortions). But see June Med. Servs. L.L.C. v. Russo, 140 S. Ct. 2103, 2132 (2020) (holding Louisiana’s admitting privileges requirement on medical professionals performing abortions unconstitutional because it imposed an “undue burden” on a woman’s constitutional right to procure an abortion); Whole Woman’s Health v. Hellerstedt, 579 U.S. 582, 590–91 (2016) (finding Texas admitting privileges and surgical center requirements on medical professionals performing abortions unconstitutional because they imposed an “undue burden” on women’s rights to procure pre-viability abortions). See also Dobbs, supra note 87, at 2242 (overturning Roe and Casey—eliminating the constitutional right to procure an abortion).

⁹¹See, e.g., Washington v. Glucksberg, 521 U.S. 702, 723, 735 (1997) (upholding Washington’s ban on physicians assisting suicide by prescribing medications because the Fourteenth Amendment did not guarantee a “right to assistance” in committing suicide); Vacco v. Quill, 521 U.S. 793, 796–97, 808 (1997) (upholding New York’s ban on physicians assisting suicide by prescribing lethal medication despite an Equal Protection challenge).

⁹²Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982); see also United States v. Virginia, 518 U.S. 515, 531 (1996) (“Parties who seek to defend gender-based government action must demonstrate an ‘exceedingly persuasive justification’ for that action.”).

⁹³Virginia, 518 U.S. at 533, 550.

⁹⁴See Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273 (1979) (concluding that heightened scrutiny is triggered under the Supreme Court’s Equal Protection precedents when “any state law [is] overtly or covertly designed to prefer males over females”).

⁹⁵Craig v. Boren, 429 U.S. 190, 197 (1976); see also Miss. Univ. for Women, 458 U.S. at 724 (noting the State bears the burden of showing an “exceedingly persuasive justification” for a sex-based classification).

⁹⁶See, e.g., Michael M. v. Superior Ct. of Sonoma Cnty., 450 U.S. 464, 469 (1981) (“Underlying [the Supreme Court’s sex discrimination] decisions is the principle that a legislature may not ‘make overbroad generalizations based on sex which are entirely unrelated to any differences between men and women or which demean the ability or social status of the affected class.’” (quoting Parham v. Hughes, 441 U.S. 347, 354 (1979) (Stewart, J., plurality opinion))); Virginia, 518 U.S. at 533–34 (sex-based classifications “must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females” nor be used to “perpetuate the legal, social, and economic inferiority of women”); Miss. Univ. for Women, 458 U.S. at 725 (“[I]f the statutory objective is to exclude or ‘protect’ members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.”); Califano v. Webster, 430 U.S. 313, 317 (1977) (holding sex-based classifications will not survive an Equal Protection challenge if they are “a result of archaic and overbroad generalizations about women . . . or of the role-typing society has long imposed upon women, . . . such as casual assumptions that women are the weaker sex or are more likely to be child-rearers or dependents” (internal citations omitted)); Schlesinger v. Ballard, 419 U.S. 498, 507–08 (1975) (holding sex-based classifications may not be based on “archaic and overbroad generalizations” about the sexes); Frontiero v. Richardson, 411 U.S. 677, 686 (1973) (“[W]hat differentiates sex from such nonsuspect statuses as intelligence or physical disability . . . is that the sex characteristic frequently bears no relation to ability to perform or contribute to society.”).

⁹⁷See, e.g., Nguyen v. INS, 533 U.S. 53, 62 (2001) (upholding distinctions based on sex of U.S. citizen parent in process for acquisition of citizenship by children born outside the U.S. to unmarried parents, given that a mother, unlike the father, will give birth to the child); Virginia, 518 U.S. at 533 (noting sex classifications may be used “to advance full development of the talent and capacities of our Nation’s people”); Cal. Fed. Sav. & Loan Ass’n v. Guerra, 479 U.S. 272, 289 (1987) (noting sex classifications may be used to “promote[ ] equal employment opportunity”); Califano, 430 U.S. at 320 (noting sex may be considered “to compensate for particular economic disabilities suffered by” its members).

⁹⁸See, e.g., Michael M., 450 U.S. at 466, 470 (noting a legislature’s desire to “prevent illegitimate teenage pregnancies” was enough to justify a statutory rape law that held only males criminally liable); Virginia, 518 U.S. at 533 (holding states may create sex-based classifications when “[p]hysical differences between men and women” are relevant). But see Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151–52 (1980) (finding administrative convenience was not sufficient to justify a sex-based classification).

⁹⁹Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 273–75 (1979) (holding that a statute giving preference to veterans did not create a sex distinction under the Equal Protection Clause because it did not facially discriminate against women and there was no evidence suggesting its disparate impact on women was motivated by “invidious” motives); see also Lenora Lapidus et al., The Rights of Women: The Authoritative ACLU Guide to Women’s Rights 3 (4th ed. 2009) (“[M]ost laws or policies that do not clearly treat men and women differently will not raise constitutional equal protection problems.”).

¹⁰⁰See, e.g., Geduldig v. Aiello, 417 U.S. 484, 496–97, 496 n.20 (1974) (finding that a distinction based on pregnancy was not a sex-based classification, even though “only women can become pregnant”).

¹⁰¹See supra notes 77–78 and accompanying text.

¹⁰²See Defendants’ Combined Brief in Opposition to Plaintiffs’ Motion for Preliminary Injunction at 45, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. 2021) (No. 4:21-CV-00450-JM) (arguing that, on its face, the SAFE Act “draws distinctions on only two bases: age and medical procedure”); Eknes-Tucker v. Marshall, No. 22-CV-184-LCB, 2022 WL 1521889, at *10 (M.D. Ala. May 13, 2022) (discussing Alabama’s contention that the Alabama Vulnerable Child Compassion and Protection Act “is not a sex-based classification” because it creates two categories: (1) minors seeking the proscribed treatments for gender-transition purposes; and (2) “all other minors”).

¹⁰³See Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (2020), cert. denied, 141 S. Ct. 2878 (2021); see also Kevin M. Barry et al., A Bare Desire to Harm: Transgender People and the Equal Protection Clause, 57 B.C. L. Rev. 507, 509 (2016) (“[N]o transgender litigant has ever challenged—let alone succeeded in striking down—a facially discriminatory federal law under the Equal Protection Clause.”).

¹⁰⁴Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1754 (2020) (finding that an “employer who fires an individual merely for being gay or transgender defies” Title VII (emphasis added)).

¹⁰⁵Id. at 1738.

¹⁰⁶Id. at 1741.

¹⁰⁷Id.

¹⁰⁸Id. at 1753 (refusing to “prejudge” whether Bostock applies to “other federal or state laws that prohibit sex discrimination”); see also Hennessy-Waller v. Snyder, 529 F. Supp. 3d 1031, 1044 (D. Ariz. 2021) (finding that Bostock’s holding was “expressly limited . . . to Title VII claims involving employers who discriminated against employees because of their . . . transgender status . . . .”). But see Bostock, 140 S. Ct. at 1783 (Alito, J., dissenting) (expressing concern that “despite the important differences between the Fourteenth Amendment and Title VII” the decision may be “cited as a ground” for subjecting discrimination based on transgender-status to the “heightened” standard of review the Court’s precedents employ for sex-based discrimination).

¹⁰⁹Washington v. Davis, 426 U.S. 229, 239 (1976) (“We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title VII, and we decline to do so today.”).

¹¹⁰Bostock has, at most, persuasive power over the Supreme Court’s interpretation of the Equal Protection Clause. The Court has rejected the idea that Title VII and the Equal Protection clause adopt the same standards for finding discrimination unlawful. Id. Even if Bostock’s approach to interpreting Title VII could logically be extended to the Equal Protection Clause, stare decisis would not compel the Court to find that discrimination based on transgender status is sex discrimination for Equal Protection purposes because the decision solely interpreted the language of Title VII and expressly disclaimed any intent to interpret any law beyond Title VII. Bostock, 140 S. Ct. at 1753 (refusing to “prejudge” whether the decision applied to “other federal or state laws that prohibit sex discrimination”). But see id. at 1783 (Alito, J., dissenting) (expressing concern that “despite the important differences between the Fourteenth Amendment and Title VII” the decision may be “cited as a ground” for subjecting discrimination based on transgender-status to the “heightened” standard of review the Court’s precedents employ for sex-based discrimination).

¹¹¹Bostock, 140 S. Ct. at 1754 (“An employer who fires an individual merely for being . . . transgender defies [Title VII].”).

¹¹²Title VII makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. §2000e-2(a)(1) (emphasis added). The Court determined that this language clarified the “law’s focus on individuals rather than groups.” Bostock, 140 S. Ct. at 1741.

¹¹³Bostock, 140 S. Ct. at 1741 (“An employer violates Title VII when it intentionally fires an individual employee based in part on sex.”).

¹¹⁴Id. (“[I]t doesn’t matter if the employer treated women as a group the same when compared to men as a group.”).

¹¹⁵Id. at 1739 (“Title VII’s ‘because of’ test incorporates the . . . standard of but-for causation . . . established whenever a particular outcome would not have happened ‘but for’ the purported cause.”).

¹¹⁶Id. at 1746 (“[T]here is no way an employer can discriminate against those who check the . . . transgender box without discriminating in part because of an applicant’s sex. . . . By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.”).

¹¹⁷See Pers. Adm'r of Mass. v. Feeney, 442 U.S. 256, 273 (1979) (concluding that heightened scrutiny is triggered under the Supreme Court’s Equal Protection precedents when “any state law [is] overtly or covertly designed to prefer males over females”); United States v. Virginia, 518 U.S. 515, 534 (1996) (finding a military academy’s males-only admissions policy an unconstitutional sex-based classification because it would “perpetuate the legal, social, and economic inferiority of women”).

¹¹⁸Geduldig v. Aiello, 417 U.S. 484, 496–97 (1974).

¹¹⁹Id. at 496 n.20.

¹²⁰Id.

¹²¹Since States would be creating sex-based classifications whenever they create a distinction “based in part on sex”—including a distinction based on homosexuality (which “penalizes men for being attracted to men and women for being attracted to women”) as well as one based on transgender status (which “discriminates against persons with one sex identified at birth and another today”). Bostock, 140 S. Ct. at 1741, 1746.

¹²²See Feeney, 442 U.S. at 273 (stating that the Equal Protection Clause makes “any state law overtly or covertly designed to prefer males over females” subject to heightened scrutiny).

¹²³Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586, 610 (4th Cir. 2020) (“[H]eightened scrutiny applies because transgender people constitute at least a quasi-suspect class.”); see Karnoski v. Trump, 926 F.3d 1180, 1201 (9th Cir. 2019) (“We conclude that the [ban on transgender persons in the military] on its face treats transgender persons differently than other persons, and consequently something more than rational basis but less than strict scrutiny applies.”). Contra Brown v. Zavaras, 63 F.3d 967, 971 (10th Cir. 1995) (affirming district court’s finding “that transsexuals are not a protected class”).

¹²⁴Bertrall L. Ross II, Administering Suspect Classes, 66 Duke L.J. 1807, 1814 (2017) (“Many legal scholars claim that the suspect-class doctrine is dead. It has been over forty years since the Court recognized a new suspect class . . . .”); see, e.g., Lyng v. Castillo, 477 U.S. 635, 638 (1986) (concluding close relatives are not a “suspect” or “quasi-suspect” class); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446 (1985) (refusing to recognize the mentally disabled as a “quasi-suspect class”); Mass. Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976) (holding old age is not a “suspect class”).

¹²⁵See, e.g., Grimm, 972 F.3d at 610, cert. denied, 141 S. Ct. 2878 (2021) (denying a writ of certiorari over a 4th Circuit decision finding that “transgender people constitute at least a quasi-suspect class”).

¹²⁶Cf. United States v. Windsor, 570 U.S. 744, 774 (2013) (finding the Defense of Marriage Act unconstitutional as a violation of the Fifth Amendment’s Due Process Clause); Lawrence v. Texas, 539 U.S. 558, 574–75, 578–79 (2003) (finding a criminal ban on sodomy unconstitutional as a violation of the Due Process Clause despite arguments by plaintiffs and a concurrence that the ban violated the Equal Protection Clause); Romer v. Evans, 517 U.S. 620, 635 (1996) (concluding that a Colorado law banning additional legal protections for homosexuals violated the Equal Protection Clause because it failed rational basis review).

¹²⁷See Windsor, 570 U.S. at 753–¬54 (failing to endorse Plaintiffs’ and Department of Justice’s view that classifications based on sexual orientation should be subject to heightened scrutiny); Romer, 517 U.S. at 640 n.1 (1996) (Scalia, J., dissenting) (noting that, in invalidating Colorado’s law under rational basis review, the Court implicitly rejected arguments that “homosexuals constitute a ‘suspect’ or ‘quasi-suspect’ class”).

¹²⁸Ark. Code Ann. § 20-9-1504 (2022). The Act also creates a private cause of action for violating the Act and gives the State Attorney General the power to bring suits to enforce compliance with the Act. Id.

¹²⁹See Craig v. Boren, 429 U.S. 190, 197 (1976) (stating previous cases have established that classifications by gender must meet these guidelines).

¹³⁰See, e.g., United States v. Virginia, 518 U.S. 515, 559 (1996) (Rehnquist, C.J., concurring) (“[T]erms like ‘important governmental objective’ . . . are hardly models of precision.”). The Court’s jurisprudence has taken a piece-meal approach to determining whether States’ asserted justifications for sex-based classifications count as “important government objectives.” Compare Craig, 429 U.S. at 199–200 (noting the “protection of public health and safety” is an important government objective), and Nguyen v. INS, 533 U.S. 53, 62 (2001) (finding that “assuring that a biological parent-child relationship exists” is an important government objective), and Orr v. Orr, 440 U.S. 268, 280 (1979) (finding that “assisting needy spouses” is an important government objective), and Califano v. Webster, 430 U.S. 313, 317 (1977) (reducing “the disparity in economic condition between men and women caused by the long history of discrimination against women” is an important government objective), with Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 151–-52 (1980) (finding administrative convenience is not an important government objective), and Reed v. Reed, 404 U.S. 71, 76 (1971) (finding that “reducing the workload on probate courts” is not an important government objective).

¹³¹Virginia, 518 U.S. at 533.

¹³²See Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. 967, 990–99 (2021) (explaining the common law mischief rule).

¹³³See Arkansas Save Adolescents from Experimentation (SAFE) Act, Ark. Code Ann. §§ 20-9-1501–1504 (West 2021); Alabama Vulnerable Child Compassion and Protection Act (V-CAP), Ala. Code § 26-26-2(15) (2022) (“Minors, and often their parents, are unable to comprehend and fully appreciate the risk and life implications, including permanent sterility, that result from the use of puberty blockers, cross-sex hormones, and surgical procedures.”).

¹³⁴The medical literature confirms that the use of puberty blockers and cross-sex hormones to physically transition children will lead to irreversible infertility. See generally T’Sjoen et al., supra note 49, at 575–579; Hembree et al., supra note 49, at 3882.

¹³⁵Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942).

¹³⁶Id. at 537–38.

¹³⁷Id. at 541.

¹³⁸Id.

¹³⁹Id. at 541.

¹⁴⁰See also Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 849 (1992) (“[T]he Constitution places limits on a State’s right to interfere with a person’s most basic decisions about family and parenthood . . . as well as bodily integrity . . . .”); Eisenstadt v. Baird, 405 U.S. 438, 453 (1972) (emphasis added) (emphasizing the fundamental nature of the right to freely decide whether “to bear or beget a child”).

¹⁴¹See Bell v. Tavistock, [2020] EWHC 3274 (Admin) (U.K.), ¶139 (Children may be incompetent to provide informed consent to receiving puberty blockers and cross-sex hormones for gender transition purposes, because they may not be able to “conceptualise what not being able to give birth to children (or conceive children with their own sperm) would mean in adult life.”); see also Roberto D’Angelo et al., One Size Does Not Fit All: In Support of Psychotherapy for Gender Dysphoria, 50 Archives Sexual Behavior 7, 13 (2020) (“The majority of patients with classical, childhood-onset gender dysphoria (61-98%) desist from transgender identification some time in adolescence or young adulthood.”); World Prof’l Ass’n for Transgender Health, Standards of Care for the Health of Transsexual, Transgender, and Gender-Nonconforming People 11 (7th ed. 2012), https://www.wpath.org/media/cms/Documents/SOC%20v7/SOC%20V7_English.pdf (gender dysphoria does not “continue into adulthood” in 73 to 94% of children diagnosed with the condition).

¹⁴²See, e.g., T’Sjoen et al., supra note 49, at 576 (discussing studies finding that “[a] large group of trans men and women state that fertility is important and that loss of fertility as a result of sex reassignment surgery is problematic”).

¹⁴³J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 137 (1994); see also Lenora Lapidus et al., The Rights of Women: The Authoritative ACLU Guide to Women’s Rights 6 (2009) (“A law will not pass this test if the law could be written to achieve the same purpose without referring to sex.”).

¹⁴⁴United States v. Virginia, 518 U.S. 515, 533 (1996).

¹⁴⁵See, e.g., T’Sjoen et al., supra note 49, at 575–79 (2013) (“In trans women, feminizing hormonal therapy will lead to hypospermatogenesis and eventually azoospermia [i.e., the absence of sperm],” while “[m]asculinizing hormonal therapy in trans men will lead to irreversible amenorrhea [i.e., the absence of menstruation and ovulation].”), Hembree et al., supra note 49, at 3882 (“The primary risks of pubertal suppression in GD/gender-incongruent adolescents may include . . . compromised fertility if the person subsequently is treated with sex hormones.”); Carly Guss et al., Transgender and Gender Nonconforming Adolescent Care: Psychosocial and Medical Considerations, 26 Current Op. Pediatrics 421, 421 (2015) (“[A] side effect [of cross-sex hormones] may be infertility”).

¹⁴⁶Studies show that the use of puberty-blockers to counter precocious puberty does not lead to infertility in either boys (“In males treated for precocious puberty, spermarche was reported 0.7 to 3 years after cessation of GnRH analogs.”) or girls (“In girls, no studies have reported long-term adverse effects of pubertal suppression on ovarian function after treatment cessation.”). Hembree et al., supra note 49, at 3879–80. Similarly, studies confirm that giving patients the sex hormones of their biological sex did not hinder fertility. See, e.g., Naoko Sato, Treatment Situation of Male Hypogonadotropic Hypogonadism in Pediatrics and Proposal of Testosterone and Gonadotropins Replacement Therapy Protocols, 24 Clinical Pediatric Endocrinology 2, 37, 37–38 (study of 55 male children with pubertal development disorders revealed that administration of testosterone boosted fertility by leading to improved spermatogenesis in 76% of patients); Jia Zhu & Yee-Ming Chan, Fertility Issues for Patients With Hypogonadotropic Causes of Delayed Puberty, 44 Endocrinology & Metabolism Clinic N. Am. 821, 821–34 (2015) (hormonal therapy can help females with delayed puberty achieve fertility).

¹⁴⁷Arkansas Save Adolescents from Experimentation (SAFE) Act, Ark. Code Ann. §§ 20-9-1501–1504 (West 2021). The legislative findings outlined potential risks, including: severe liver dysfunction, coronary artery disease, cerebrovascular diseases, hypertension, and breast and uterine cancers for biological females, and blood clots, gallstones, coronary artery disease, strokes, and breast cancer for biological males. Id.

¹⁴⁸Alabama Vulnerable Child Compassion and Protection Act (V-CAP), Ala. Code § 26-26-2(12) (2022) (“Among the known harms from puberty blockers is diminished bone density; the full effect of puberty blockers on brain development and cognition are yet unknown, though reason for concern is now present. There is no research on the long-term risks to minors of persistent exposure to puberty blockers. With the administration of cross-sex hormones comes increased risks of cardiovascular disease, thromboembolic stroke, asthma, COPD, and cancer.”).

¹⁴⁹See supra text accompanying notes 32–35.

¹⁵⁰See supra text accompanying notes 30–31.

¹⁵¹“[T]he police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (upholding the constitutionality of a smallpox vaccination mandate).

¹⁵²See, e.g., Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020) (“Stemming the spread of COVID-19 is unquestionably a compelling interest . . . .”); Cruzan v. Dir., Missouri Dept. of Health, 497 U.S. 261, 282 (1990) (noting states have an “unqualified interest in the preservation of human life.”); Calvary Chapel Dayton Valley v. Sisolak, 140 S. Ct. 2603, 2613 (2020) (Alito, J., dissenting) (“Nevada undoubtedly has a compelling interest in combating the spread of COVID-19 and protecting the health of its citizens.”); Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 538 (1993) (The city had a compelling interest in “protecting the public health.”). Even in its abortion jurisprudence, the Court has recognized that the State has a compelling interest in health of the woman. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 871 (1992).

¹⁵³See, e.g., Grutter v. Bollinger, 539 U.S. 306, 327 (2003) (“When race-based action is necessary to further a compelling governmental interest, such action does not violate the constitutional guarantee of equal protection so long as the narrow-tailoring requirement is also satisfied.”).

¹⁵⁴See, e.g., Reno v. Flores, 507 U.S. 292, 302 (1993) (holding that states may infringe on “fundamental” liberties if “the infringement is narrowly tailored to serve a compelling state interest”); see also Roe v. Wade, 410 U.S. 113, 154 (1973) (finding state regulation of abortion permissible when necessary to protect the health of pregnant women).

¹⁵⁵Craig v. Boren, 429 U.S. 190, 199–200 (1976).

¹⁵⁶Sable Commc'n’s of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989); see also Washington v. Glucksberg, 521 U.S. 702, 731 (1997) (noting the State has a legitimate interest in “protecting vulnerable groups.”).

¹⁵⁷Minnesota ex rel. Whipple v. Martinson, 256 U.S. 41, 45 (1921).

¹⁵⁸See supra text accompanying note 2.

¹⁵⁹See supra text accompanying note 3.

¹⁶⁰Arkansas Save Adolescents from Experimentation (SAFE) Act, Ark. Code Ann. §§ 20-9-1501–1504 (West 2021). The legislature concluded the standard encouraged medical professionals to subject children to “irreversible and drastic” changes with insufficient evidence that the benefits of gender transition procedures in minors outweighed their substantial risks. Id.

¹⁶¹Alabama Vulnerable Child Compassion and Protection Act (V-CAP), Ala. Code §§ 26-26-2(5)–(12) (2022). The legislature criticized members of the “medical community . . . aggressively pushing for interventions on minors that medically alter the child’s hormonal balance” that are “unproven [and] poorly studied” instead endorsing a “wait-and-see approach.” Id.

¹⁶²Ark. Code Ann. § 20-9-1502(a) (“A physician or other healthcare professional shall not provide gender transition procedures to any individual under eighteen (18) years of age.”).

¹⁶³Opponents of the Act recognize that the Act displaces the current standard of care for children with dysphoria, arguing that the Act prevents “health care providers from treating [transgender adolescents] in accordance with the accepted standard of care,” since “the consensus recommendation of medical organizations . . . is that the only effective treatment for individuals at risk of or suffering from gender dysphoria is to provide gender-affirming care.” Brief for American Medical Association, et al. (“Medical Organizations”), as Amici Curiae Supporting Plaintiffs, Brandt v. Rutledge, 551 F. Supp. 3d 882 (E.D. Ark. 2021) (No. 4:21-CV-450-JM), at *9, 15, https://files.eqcf.org/wp-content/uploads/2021/07/30-Amicus-Brief-Medical-Orgs-iso-PI.pdf.

¹⁶⁴See Marco A. Hidalgo et al., The Gender Affirmative Model: What We Know and What We Aim to Learn, 56 Human Development 285, 288 (2013) (“[C]hildren should be comfortable to freely explore a range of gender identities and expressions without external and rejecting forces . . . . ”); Laura Edwards-Leeper & Scott Leibowitz, Affirmative Practice with Transgender and Gender Nonconforming Youth: Expanding the Model, 3 Psych. Sexual Orientation & Gender Diversity 165, 165 (2016) (noting gender-affirming care is based on the notions “that the gender identity and related experiences asserted by a child, an adolescent, and/or family members are true, and that the clinician’s role in providing such affirming care to that family is to empathetically support such assertions.”). See also Shrier, supra note 7, at 97–99 (“The standard asks . . . that mental health professionals ‘affirm’ not only the patient’s self-diagnosis of dysphoria but also the accuracy of the patients’ perception.”).

¹⁶⁵See, e.g., Coleman et al., supra note 37, at 178 (“Refusing timely medical interventions for adolescents might prolong gender dysphoria . . . . [W]itholding puberty-suppression and subsequent feminizing or masculinizing hormone therapy is not a neutral option for adolescents.”); Position Statement on Medical Necessity of Treatment, Sex Reassignment, and Insurance Coverage in the U.S.A., World Professional Association for Transgender Health (WPATH) (Dec. 21, 2016), https://www.wpath.org/newsroom/medical-necessity-statement (defining puberty blockers and cross-sex hormones as “medically necessary” treatments for gender dysphoria).

¹⁶⁶For instance, Arkansas has given the State Medical Board the power to grant or withdraw medical licenses in the State, including the power to designate required examinations and determining what constitutes “unprofessional conduct.” Ark. Code Ann. § 17-95-409.

¹⁶⁷See, e.g., Gonzales v. Carhart, 550 U.S. 124, 163 (2007) (upholding federal ban on partial-birth abortion method, concluding that “[p]hysicians are not entitled to ignore regulations that direct them to use reasonable alternative procedures.”); Kansas v. Hendricks, 521 U.S. 346, 360, n.3 (1997) (“[W]hen a legislature ‘undertakes to act in areas fraught with medical and scientific uncertainties, legislative options must be especially broad and courts should be cautious not to rewrite legislation.’”) (quoting Jones v. United States, 463 U.S. 354, 370 (1983)).

¹⁶⁸See supra Section I.3.

¹⁶⁹See Craig v. Boren, 429 U.S. 190, 199–200 (1976) (noting “the protection of public health and safety” is an important government objective).

¹⁷⁰In its abortion jurisprudence, the Supreme Court has recognized that the State’s interest in the health of its citizen is enough to override medical standards of care, so long as no underlying constitutional right is unduly burdened. See, e.g., EMW Women's Surgical Ctr., P.S.C. v. Beshear, 920 F.3d 421, 438 (6th Cir. 2019) (“[T]he Supreme Court has upheld abortion regulations that were directly contrary to alleged medical-profession custom and that certain medical groups did not consider to be necessary--laws that those groups asserted were inconsistent with accepted standards of care . . . .”).

¹⁷¹See supra Sections IB, IVA, & IVB.

¹⁷²See, e.g., Simona Martin et al., Criminalization of Gender-Affirming Care — Interfering with Essential Treatment for Transgender Children and Adolescents, 385 New England J. Med. 579, 580 (2021) (“[U]se of hormone therapy is associated with improved quality of life, reduced rates of depression, and decreased anxiety among transgender people.”).

¹⁷³See Dhejne et al., supra note 51, at 7 (“This study found substantially higher rates of overall mortality, death from cardiovascular disease and suicide, suicide attempts, and psychiatric hospitalisations in sex-reassigned transsexual individuals compared to a healthy control population.”); Greene, supra note 52 (finding that youth suicide rates actually increased in states where “gender-affirming” care is available to minors without parental consent); see generally Adams et al., supra note 51 (showing no meaningful decline, and potentially an increase, in suicidal ideation and attempts among gender dysphoric adults after gender transition).

¹⁷⁴See Nat'l Inst. For Health & Care Excellence, Evidence Review: Gonadotropin Releasing Hormone Analogues for Children and Adolescents with Gender Dysphoria 13 (2020) (finding that puberty blockers in gender-transition procedures provided “little change… from baseline to follow-up” on “the critical outcomes of gender dysphoria and mental health (depression, anger and anxiety), and the important outcomes of body image and psychosocial impact (global and psychosocial functioning”); Hruz, supra note 50, at 38 (“There is a deficiency of scientific study systematically assessing this patient population to understand factors that are correlated with and may contribute to failure to achieve lasting relief of dysphoria following the affirmation of discordant gender identity.”).

¹⁷⁵Hruz, supra note 50, at 38 (“The few studies that examined suicidal ideation before and after gender transition found suicidal ideation to be increased.” (emphasis added)); accord Greene, supra note 52.

Dominic BayerJuly 21, 2022