Who Decides Gender Policy for Minors? The Case for the Legislatures

There are two ways to settle a hard moral and scientific question in a free country. You can win an argument with your neighbours, or you can find five justices who will tell your neighbours the argument is over. The first method is slower, louder and more annoying. It is also the only one that has ever produced a settlement people accept.

On June 18, 2025, in United States v. Skrmetti, the Supreme Court chose, by a vote of six to three, to leave a hard question where the Constitution puts most hard questions: with the elected representatives of the people. This post takes up that decision and makes the case that it was the right place to leave the matter. I am going to be careful, because the subject involves children and families, and because nothing here is medical advice. This is an argument about who decides, not about what any family should do.

The terms

Four definitions will keep the argument honest.

Gender treatments for minors. In this post I mean the medical interventions that the Tennessee law addresses: puberty-suppressing drugs and cross-sex hormones given to a minor for the purpose of enabling the minor to identify with, or live as, a sex different from the minor's sex. I am not discussing counselling, support or the many other aspects of care for a young person in distress.

Legislature. The elected body of a state or of Congress, which makes law by public debate and recorded votes and can be voted out.

Equal protection. The guarantee in the Fourteenth Amendment that no state shall "deny to any person within its jurisdiction the equal protection of the laws." The question in the case was whether Tennessee's law denied it.

Parental rights. The long-recognised interest of parents in the care, custody and control of their children, which the Supreme Court has treated as among the oldest of the fundamental liberty interests.

What Tennessee did

In March 2023 Tennessee enacted Senate Bill 1, signed by Governor Bill Lee, which took effect that summer. The law prohibits health care providers from giving puberty blockers or hormones to a minor when the purpose is to enable the minor to identify with a sex inconsistent with the minor's sex at birth, or to treat distress arising from that inconsistency. The same drugs remain available for other purposes. The statute contains exceptions, reported to include treatment of early or delayed puberty and of conditions such as a congenital defect, disease or physical injury. In other words, it did not forbid a medication. It forbade a use of the medication in minors for a stated purpose.

Families who objected sued, and the federal government joined the challenge. The Sixth Circuit had upheld the law, and the case reached the Supreme Court, which heard argument on December 4, 2024.

The holding

Chief Justice Roberts wrote for the Court, joined by five others. The majority held that the Tennessee law does not classify on the basis of sex or transgender status in a way that triggers heightened scrutiny. Its reasoning was that the law draws lines based on age and medical use: it removes a category of treatment for minors, and it applies the same rule to any minor, regardless of the minor's sex. Because the law classifies on those grounds, the Court applied the most deferential standard, known as rational-basis review, and held that Tennessee had met it. The majority said the law was within the state's legitimate interest in protecting minors' health and welfare in the face of medical uncertainty and a developing debate. The Court did not decide whether transgender status is a protected class under the Constitution. Justices Thomas, Barrett and Alito each wrote separately, with Justice Barrett, joined by Justice Thomas, writing that transgender status does not qualify as a suspect class, and the others writing on related questions.

The opinion also said something about the role of the courts that every citizen should read. A question of this kind, the Court said, involves medical and policy judgments that are matters of fierce debate, and the Constitution leaves those to the people and their elected representatives. That is the heart of the decision. The Court did not declare that the Tennessee approach is wise. It declared that the Constitution does not forbid it, and that whether to adopt it is a decision for the legislature and the voters.

The dissent

Justice Sotomayor wrote the principal dissent, joined by Justice Jackson and, for most of it, Justice Kagan, and Justice Kagan filed a dissent of her own. The dissenters argued that the law does classify on the basis of sex, because whether a particular treatment is permitted depends on whether it is consistent with the minor's sex, and that such a classification requires a more searching review. They also argued that the law would not survive that review. That is a respectable legal argument. It is also an argument about the standard of review, and a standard of review is a rule about how much deference courts owe to elected bodies. Reasonable justices differ on that, and the vote was six to three.

Why the legislature

Now the argument. I am going to give it in numbered premises.

1. The Constitution assigns most questions of health and welfare to the states. The Tenth Amendment says that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. James Madison, in Federalist No. 45, wrote that the powers reserved to the states "will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State." Medical regulation and the protection of children are among the oldest functions of state government.
2. Where experts disagree, democracy is the right tool. A court is good at deciding whether a statute violates a clear constitutional rule. It is poorly designed to settle a live scientific and moral dispute, because it hears a handful of briefs, decides once, and binds the whole country. A legislature can hold hearings, hear from doctors on every side, try one approach in one state and another in a second, revise, and answer to voters. That is how a free society learns.
3. A loss in the legislature is not the end of the argument. If a state law proves unwise, citizens can change it by the ordinary means: persuasion, elections and repeal. A constitutional ruling that takes the question away from legislatures ends the argument for everyone, and its mistakes, if it makes them, are very hard to correct. This is the same lesson that the overruling of Roe in Dobbs (2022) taught from the other side: when a court settles a contested moral question by reading it into the Constitution, the fight does not end, it just moves to the confirmation hearings.
4. Therefore the question belongs to the elected branches, and both sides should accept the verdict of the process even when it goes against them. Opponents of the Tennessee law remain free to argue for repeal, to run for office and to persuade their neighbours. Supporters of other states' laws are in the same position.

That final point matters to me, because it applies in every direction. If you believe, as I do, that legislatures should decide, then you must accept that some legislatures will decide the other way. A federal system produces different laws in different places. That is not a flaw. It is a design feature, and it is the reason the question can be answered peacefully.

The evidence, treated as policy facts

Part of the debate turns on the strength of the evidence for various approaches to treatment, and I want to treat that as the policy question it is. I will not weigh the clinical merits. I will point to a development that legislators are entitled to consider: several European countries with public health systems, which are generally regarded as friendly to gender-affirming care, have ordered formal reviews of the evidence and have, on the basis of those reviews, made their approach more cautious.

• Britain. NHS England commissioned a review led by Dr. Hilary Cass, a senior paediatrician, whose final report was published in April 2024. The review found little high-quality evidence supporting current clinical practice, and recommended great caution. In 2024 NHS England halted the routine prescribing of puberty-suppressing drugs for gender dysphoria.
• Sweden. In 2022 Sweden's National Board of Health and Welfare updated its guidelines, and its own summary that year stated that, at group level, the risks of puberty blockers and gender-affirming hormones currently outweigh the benefits, with treatment reserved for exceptional cases.
• Finland. In 2020 Finland's national health-care advisory body issued recommendations that made psychosocial support the first line of care for minors with gender-related distress, with medical treatment treated as an experimental practice and confined to limited cases.

These are statements of what public health authorities in other countries decided and why, as reported in their own published documents, and I encourage the reader to read those documents directly. I do not say that they settle the American question. I say that they are the kind of facts a legislature may weigh, and that the existence of such reviews is a good reason for a state legislature not to be told by a court that only one answer is constitutionally permitted. When the doctors and health officials of several countries are revising their own approach, the idea that the Constitution contains the final answer is difficult to sustain. The same lesson, about how official consensus can change and why institutions deserve scrutiny, appears in a different field in From Banned Claim to Live Hypothesis, How the Lab-Leak Debate Was Framed.

The parents' rights dimension

There is a second tradition here that conservatives should not forget. The Supreme Court recognised in Pierce v. Society of Sisters (1925) that parents have the right to direct the upbringing and education of their children, and in Troxel v. Granville (2000) a plurality described the interest of parents in the care, custody and control of their children as perhaps the oldest of the fundamental liberty interests the Court has recognised. That tradition is a reason to be careful about any government that overrules parents, and it is why the question of who decides is not a simple matter.

The challengers in the Tennessee case made a version of this argument: parents who, with their children's doctors, have decided that a treatment is appropriate should not have it prohibited by the state. That is a serious point, and the answer to it is not to dismiss parental rights. The answer is that parental rights have never been unlimited, and the state has always regulated what may be done to children even with parental consent. The law restricts what drugs a minor may take, what surgeries may be performed, what work a child may do, and what contracts a child may make, and parents do not have a right to authorise any of it. The question in each case is where the state's interest in protecting children outweighs the parental claim. That is exactly the type of line that legislatures draw, and it is a line the people may redraw at the next election.

I would add that parental rights also operate in the other direction. Parents who are troubled by a school's treatment of their child, or who find that a school has made decisions about a child's identity without telling them, have a parental-rights claim that is no less serious, and that is the subject of much recent debate and legislation. A principle that protects parents against the state will protect them in both directions if it is applied consistently, and I would insist that it should be.

The strongest objection

The strongest objection, in the words I think its defenders would choose, is this: you are asking the majority to vote on the medical care of a small minority of children and their families, and the whole point of constitutional rights is to protect minorities from majorities. Families who made a careful decision with their doctors are now subject to a ban, and a judicial hands-off approach leaves them without recourse.

That is the argument at its most forceful, and the discussion should take it seriously. My answer has four parts.

First, constitutional rights protect minorities against specific, defined wrongs, such as discrimination on grounds of race, and the Court's task in Skrmetti was to decide whether this law was one of them. It held, six to three, that it was not. One may disagree with the reasoning, but it is the ordinary business of a court to draw such lines.

Second, almost every law of medical regulation burdens some family, and courts rightly do not strike down all of them. A drug approval rule, a licensing law, a limit on a procedure for minors: each leaves some family frustrated. If every such family could win a constitutional exemption, the legislature would be unable to regulate medicine.

Third, the families have not been silenced. They are free to speak, to organise, to lobby, to vote and to move to another state with different laws. Those are not trivial remedies, and the people who regard them as inadequate have usually concluded that they are losing the argument, not that they have been denied one.

Fourth, the alternative is not a world without decision-makers. It is a world in which unelected judges decide, and the people who disagree have no recourse at all. The legislature is where recourse lives.

The language of the debate

A last word on tone. No one on either side of this question is served by contempt. The parents who want to help a suffering child and the legislators who want to protect children from what they regard as an unproven treatment are, in the great majority, acting out of love and concern. Conservatives who argue for the legislative solution should say so, and should avoid language that demeans any person. The cause of liberty and the cause of kindness are not competitors. A state may restrict a medical treatment while treating every young person and every family in it with courtesy and respect, and I would say that it must.

On the related question of how far the law may go in compelling or restricting speech in this area, see Speech, Pronouns and Compelled Words, Where the First Amendment Draws the Line, and on the sports question, see Fairness for Female Athletes Is a Civil Rights Argument, Made With Respect. For the wider habit of treating contested policy as a question already settled, see Language Policing Turns Ordinary Words Into Offences, and It Never Ends.

The case in brief

1. In United States v. Skrmetti (June 18, 2025) the Supreme Court held six to three that Tennessee's 2023 law on gender treatments for minors survives equal-protection review, treating it as a classification by age and medical use, and left the larger policy question to the elected branches.
2. The Constitution reserves most questions of health and the protection of children to the states, as Madison explained in Federalist No. 45, and legislatures can hear all sides, differ from state to state and be voted out.
3. Reviews ordered in Britain, Sweden and Finland are policy facts that legislators may weigh, and they show why a court should not declare the question closed.
4. Parental rights are real and old, but they have never been unlimited, and the line between a parent's claim and the state's interest is drawn by legislatures that the people can change.

What you can do: look up the bills on this subject introduced in your own state legislature this session on its website, read one in full, and tell your representative what you think.