Sotomayor voices 'sadness' in reading gender-affirming care dissent 

Justice Sonia Sotomayor, the Supreme Court’s most senior liberal justice, read her dissent aloud from the bench Wednesday to stress her forceful disagreement with the court effectively greenlighting gender-affirming care bans across the country.

The justices reserve reading their dissents aloud for only a handful of cases, and Sotomayor was the first this term to do so. She spoke for nearly 15 minutes.

“The majority subjects a law that plainly discriminates on the basis of sex to mere rational-basis review,” Sotomayor wrote, joined by Justices Elena Kagan and Ketanji Brown Jackson.

“By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims. In sadness, I dissent,” Sotomayor wrote.

The Supreme Court’s six conservative justices all voted Wednesday to uphold Tennessee’s ban on puberty blockers and hormone treatments for transgender minors, rejecting the Biden administration’s challenge that it amounted to unconstitutional sex discrimination. 

The decision stands to impact similar laws passed in roughly half the country, which have also come under legal challenges. 

The court’s three Democratic-appointed justices all said the law’s sex-based lines compelled a more exacting standard, known as heightened scrutiny, to determine whether the statute can survive.

Chief Justice John Roberts, writing for the majority, applied a more lenient test that only asks whether the law is rationally related to a legitimate government interest.

“That marks the first time in 50 years that this Court has applied such deferential review, normally employed to assess run-of-the-mill economic regulations, to legislation that explicitly differentiates on the basis of sex,” Sotomayor wrote. “As a result, the Court never even asks whether Tennessee’s sex-based classification imposes the sort of invidious discrimination that The Equal Protection Clause prohibits.”

The three justices also agreed the law must face the heightened test because it discriminates against transgender people. Sotomayor wrote that transgender Americans lack the political power to vindicate their interests before the legislatures passing the care bans.

“In refusing to say as much, the Court today renders transgender Americans doubly vulnerable to state-sanctioned discrimination,” Sotomayor wrote.

But while Sotomayor and Jackson went on to question whether Tennessee’s law would survive under their standard, Kagan didn’t join that part of the dissent. She said she would’ve left it for the lower courts to figure out.

“The record evidence here is extensive, complex, and disputed, and the Court of Appeals (because it applied only rational-basis review) never addressed the relevant issues,” Kagan wrote.