July 1, 2025 • 24 mins
Klare and Taryn discuss the recently decided case, United States v. Skrmetti, hormonal blockers for transgender minors, the equal protection clause, and substantive due process.
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(00:02):
Welcome to Case by Case, a legal podcast.
Keep in mind, the contents of thispodcast should not be taken as legal
advice, nor does this podcast establisha client attorney relationship.
Case by case is meant foreducational purposes only.
Enjoy.
Hi there, I'm Claire andthis is Case by Case.
(00:24):
And with me today is my friend Taryn.
Hi Taryn.
Hey everybody.
Taryn, uh, we're going over abrand new US Supreme Court case.
They are issuing their latest opinionsand then they're gonna take a break.
So they're dropping bombsand then going on an RV trip.
(00:45):
It's appropriate.
Uh, the case we're talking abouttoday is United States verse tti.
It was decided June 18th, 2025,and we're recording this, the 26th.
Oh, so fresh, hot off the presses.
This case deals with, uh, Tennesseeand the Tennessee law, and it talks
(01:11):
about the 14th Amendment, specifically,the equal protection clause,
substantive due process as well.
And the Tennessee law that's at thecenter of this case is a law that
prohibits children in Tennesseefrom accessing hormonal therapies
(01:32):
and surgeries in regards to thetreatment of gender dysmorphia.
In other words, transgender kids.
Cannot have access to hormonaltherapies and surgeries.
Okay.
So this is only specific to children.
We're not talking about adults with this.
Correct.
Okay.
It's specific to children.
(01:54):
Okay.
And these types of therapies arespecific to children only in terms
of treating gender dysmorphia.
Got it.
So if you need a hormonal blockerfor another reason, you can
still get that here in Tennessee.
Oh, okay.
Interest, interesting that they draw that.
Distinction, but Okay.
Yeah.
And that's gonna play a role in thiscase, that distinction, and that law
(02:16):
was passed here in Tennessee in 2020.
So let's talk about parties.
So the plaintiffs are transgender,mostly teenagers from Tennessee and
the Biden administration had alsojoined the plaintiffs in this case.
So that's why we seeUnited States in this case.
Got it.
(02:36):
That's the Biden administration.
When Trump took office, the Trumpadministration was not endorsing
this side of the argument anymore.
The defendant is the state of Tennessee.
TTI is our State General Attorney General,so that's why he's named in this case,
so that you get United States verse tti.
(02:58):
Okay, so that's how we get that.
I didn't know they did it like that.
Yeah, they named them, likethey'll name them personally.
In our first case we did Gideon versusWainwright and Wa Wright was a Floridian,
um, attorney, I think, or he was, heran some kind of department out of
Florida, so they'll name 'em by name.
(03:20):
Just kind of interesting.
It is.
Uh, yeah, because likeyou're lied to that forever.
I mean, they're obviously nottaking any personal liability.
It's, but it's how they're named.
Um, yeah, so those are the parties.
The plaintiffs here aregonna raise two arguments.
(03:40):
They're gonna raise the equal protectionclause argument, which is under the
14th Amendment, and a substantivedue process argument, which is also
based somewhat on the 14th Amendment.
Let's talk about the equalprotection clause first.
I was really excited to talk aboutthis case 'cause the Equal Protection
Clause covers a lot of differentthings and there's an interest,
(04:03):
interesting format to those arguments.
So it's found in the 14th Amendment, andthis is what the 14th Amendment says.
No state shall make or enforce any lawwhich shall abridge the privileges or
immunities of citizens of the UnitedStates, nor shall any state deprive
any person of life, liberty, orproperty without due process of law.
(04:25):
And lastly, nor deny any personwithin its jurisdiction, the
equal protection of the laws.
So that's the, that last sentenceis equal protection clause.
So basically you haveto treat people equally.
The court over the years has hadseveral cases and they basically
have three buckets in terms ofthe equal protection clause.
(04:47):
The first bucket is whatwe call strict scrutiny.
That really what, what fallsin that bucket is race,
ethnicity, and country of origin.
So what the court has described asimmutable characteristics, things
you can't change about yourself.
Gotcha.
Yeah.
To survive a strict scrutiny standard.
When we talk about these buckets,we're talking about the standard
(05:10):
at which the court reviews.
Discrimination.
So the strict scrutiny standardis the highest level of scrutiny.
It's really hard for thegovernment to win on these.
The government has a burden of proof,so the government has to go into court
and prove the law serves a compellinggovernmental interest and is narrowly
tailored To achieve that interestusing the least restrictive means,
(05:33):
basically you have to have a reallyimportant reason for doing this.
It has to not be directly targeted atthe race, and it has to be as narrowly
tailored as you can get it to discriminateagainst the smallest amount of people.
Got it.
It usually doesn't hold up.
It's a very high standard wait.
So normally a law like this wouldnot hold anything that brings
(05:59):
up the strict scrutiny standard.
Typically doesn't pass strict scrutiny.
Okay.
Strict scrutiny.
So the things that you feelover like the main bucket.
I got you.
Got you.
Yeah.
So if this were about like, Hey, blackpeople can't go to school, that would
fall under like the strict scrutiny andthat they're not gonna win that one.
Correct.
Got it.
Correct.
(06:19):
The next bucket is intermediatescrutiny, and this usually deals with.
Gender and discussionsbased on quote, legitimacy.
So if you were born and didn'thave a dad in the fifties,
I think this mattered more.
I don't think people careabout that stuff as much.
Um, so this is the standard, thegovernment, so the government still
(06:42):
has the burden of proof, has todemonstrate the law, serves an interest
that is more than just legitimate,but rather important or substantial.
So, uh, a lot of gender casesha have to abide by this
intermediate scrutiny standard.
Here's an example.
It, back in the day, Oklahoma had, wasselling something called near beer.
(07:04):
And it was beer that didn't havethe, a high alcohol content.
They said you could sell it to femaleswho are 18, but not males that were 18.
'cause no, stereotypically they saidthey're more rambunctious and they
won't be able to be trusted with.
Near Beer Fair, which is fair.
The court shut it down though,and they said, well, you know, it
doesn't meet this, you know, this isa violation of the equal protection
(07:27):
clause under intermediate scrutiny.
And then the last bucketis rational basis test.
And the.
Is everything else.
It's age, it's economic status.
It's basically anythingthat isn't gender or race.
And it says the law mustbe rationally related to a
legitimate government purpose.
This means the law must be conceivableand non arbitrary and have that
(07:49):
connection to a government objective.
So an example of this, pilots have toretire after a certain age, and it's
connected to, um, you know, their physicalcapabilities and their reaction time.
Okay, so back to this case.
The plaintiffs here are saying thatthis ban on transgender treatment
(08:09):
is based on gender and they wantintermediate scrutiny to apply.
So that's that gender based one,the one that's in the middle?
Yeah.
They cite, uh, a case from 2020called Bostock verse Clay County.
In that case, the US SupremeCourt held that gender identity
and sexual orientation areprotected in terms of employment.
(08:34):
Mm-hmm.
So they raise that issue.
And then the plaintiffs also raisenot only this equal protection clause,
intermediate scrutiny standard, they alsoraise a substantive due process claim.
So what is substantive due process?
We talked about it in that polygamycase, Taryn, and what it basically
is, is privacy within your hometo make your own decisions.
(08:56):
Got it.
So what's covered un undersubstantive due process.
Lots of things.
Yeah.
It's kind of a controversial topicof law because traditionalists people
that interpret the constitutionvery literally don't believe in it.
It basically says even though the wordprivacy isn't in our constitution.
(09:16):
We believe that the forefathers thoughtit was important because we have a lot
of other things that hint at privacy.
So pretty much they didn't explicitlysay it, I guess, because they thought
it was obvious or like kind of Yeah.
And they referenced, assumed, I guess.
Right.
And they referenced a bunchof different parts of the
constitution that refer to privacy.
(09:38):
So our freedom topractice religion, right?
That's private.
Um, the.
Third amendment, you don't have toquarter soldiers in your home probably
'cause your home is a sacred place.
Mm-hmm.
Fourth Amendment, unlawfulsearches and seizures.
Your home, your person,that's all privacy related.
So they cited all of those and reallythe case that laid the groundwork
(10:00):
for substantive due process wasGriswold versus Connecticut, which
says we have access to birth control.
You can't prohibit people fromgetting birth control access.
So Griswold first connect Capacitis a bunch of other things follow
that fall under substantive dueprocess, including Roe v. Wade.
But the court has since overturnedRoe v. Wade, when they overturned
it, they weren't just overturningyour right to an abortion.
(10:23):
They're questioning substantivedue process as a whole.
So they're saying, do we really have.
Privacy.
Right.
Especially when it comesto medical decisions.
Interesting.
Okay.
So our plaintiffs here that equalprotection clause, intermediate
scrutiny, and substantive due process.
So what happens, they takeit to district federal court.
(10:44):
The district court appliedintermediate scrutiny and they said
this law is unconstitutional andit discriminates based on fender.
Mm-hmm.
It's then appealed up.
The State of Tennessee appeals it.
The appellate court.
So here we're in the sixthcircuit and they said, actually
it's not intermediate scrutiny.
It's that rational basis.
(11:04):
Test that lowest level of scrutiny.
Yeah.
And they uphold the law.
They also shot down this substantivedue process claim, and the appellate
court says, regulating drugs andmedical treatment should fall to the
legislature because it's ever evolvingand evidence-based and we need to take it.
(11:25):
Um, you know, circumstanceby circumstance.
Side note here, many medical bodies,including like the pediatric board, and
they all stand behind these treatmentsfor transgender kids, but there is
some still studies being done about it.
Got you.
Okay.
So now the plaintiff's appeal.
(11:46):
Now we're in US Supreme Courtand now we have the opinion
that was issued on June 18th.
So the Supreme Court declined tohear that due process argument.
So they shot down thesubstantive due process part.
They didn't even shut it down.
They were just like, theydidn't wanna comment on it.
We wanna say it.
(12:07):
They interesting 'cause they're theone that kind of stirred the pot,
but the overturning Roy Wade, and nowthey're scared to talk about it, right?
So many things fall under thissubstantive due process theory.
It's also important to note thatprocedural due process, you're right to a
trial, that's something different, right?
But birth control falls under it.
Our right to live with people in ourfamily that aren't our nuclear family.
(12:31):
So if your grandma wants to movein with you, that's protected.
Under substantive due process.
Gay marriage, interracialmarriage, um, sodomy laws were.
Determined unconstitutionalbased on substantive due process.
Okay, so when they overturned Roe v.Wade, really they've thrown all that
(12:53):
other stuff somewhat back into question.
Correct.
You could be questioned.
Correct.
And really when they overturned it,that was what they were overturning.
And our, our right to refusemedical treatment is under this.
So let's say, you know, you've beenfighting cancer for a while and you say,
you know what, I'm done with chemotherapy.
That's under this.
(13:14):
It covers a lot of stuff.
That's pretty much everything, honestly.
Um, yeah.
And, and when we think of our, youknow, our, the latest kind of wave
of constitutional law, a lot of itrelies on substantive due process.
So the court declinedto hear that argument.
Okay.
Whatever.
I don't think, I think theywere like, oh, just kidding.
(13:37):
Not just kidding, but then theyrealized how mad they made people.
Yeah.
Now they're like, wedon't wanna talk about it.
Yeah, yeah, yeah.
It's interesting the, I think Congress toois acting to codify some of those rights
into law since, since that happened.
Okay.
But they did decide to hear theequal protection clause piece.
(13:57):
Now we talked about race,we talked about gender.
Those get this heightened levelof scrutiny at the courts.
But let's talk about why they're there.
So the group being discriminatedagainst has to have been
historically discriminated against.
They have to have immutableor highly visible trait.
So if you're a differentrace, that's highly visible.
If you're a a woman or a man that'stypically highly visible, you have to
(14:22):
lack political power and you have tohave a distinguishing characteristic
that does not inhibit you fromcontributing meaningfully to society.
Yep.
So writing for the majority hereis Chief Justice John Roberts.
John Roberts is conservative,leaning, but also somewhat moderate.
(14:43):
He has to, as a chief justice,their job is to run the court.
Um, so he wrote the opinion here.
The Chief Justice doesn't always writethe opinion, but he did in this case.
And basically they agree with theappellate court and they said this doesn't
fall under a heightened level of scrutiny.
It shouldn't.
Fall under that intermediatelevel of scrutiny.
(15:05):
And he says, our role here is to notjudge the wisdom, fairness, or logic of
the law, but to ensure that it doesn'tviolate the equal protection clause.
And they said the law really doesn'tdiscriminate based on your gender.
It's discriminating based on your age.
Because minors can't have access to it.
(15:26):
Okay.
So there's, oh, interesting.
So he's saying it's really age andmedical needs, which is rational basis.
That lower level mm-hmm.
Of, of review.
Which is interesting.
I get, well, I guess he's not wrong.
Like if, if the law is specificto minors and it is, yeah.
(15:51):
Okay.
Yeah.
And they're saying, well, you know,if you're born female and born
male and you wanna transition, bothof those people are being treated
the same, both of those buckets.
Oh yeah.
I mean, I guess that is true, thatthat is accurate, which is, yeah,
there is a concurrence, which meansa justice agrees with the majority,
(16:14):
but wants to add, they wanna talk to.
Basically they're like, wait, wait, wait.
I haven't said anything in so long.
Um, and Justice Barrett does theconcurrence, but she says about this
minority, about transgender people.
She was saying they have not proven deyour discrimination, meaning an officially
(16:40):
recognized practice of discriminationagainst this group of people.
That leads us to the dissent.
So the dissent are our three liberaljustices, uh, justice Sotomayor,
justice Jackson, and Justice Kagan.
And they dissent, meaning they don'tagree with the majority opinion.
Um, they said the UR discrimination ishappening all the time and it's happening
(17:01):
right now, um, with our governmenttaking out transgender people from the
military and, and those types of policies.
So.
That's kind of where it falls.
We had six justices saying that states areallowed to pass laws similar to this one.
And we had three justices dissentingsaying that this, this is discrimination.
(17:24):
And you know, we've noticeda pattern of discrimination
against this group of people.
I, the i the age thingis sticking with me.
Like that's an interesting,like, it's an interesting
argument wrinkle and you wonder.
Okay.
Well if there's gonna be a law then thatdiscriminates against, you know, people on
(17:46):
Medicaid getting this type of treatment.
Right.
I wonder how that's gonna play out becauseI did well if using that same logic.
Yeah.
I don't know it.
Interesting.
What would they say if it were, if thisweren't specific to minors, to kids?
If this was a broader situation, it.
(18:09):
That's not an argument.
You could make that case though.
Yeah.
I don't know.
The, these plaintiffs didn't evenbring up the surgical part in their
arguments, so it really just focusedon, uh, medication and hormone blockers.
Interesting.
And I don't know anything about that.
I'm not a doctor.
Right.
But yeah, they were saying,let's say you start puberty early
and you need a hormone blocker.
(18:30):
You can use it for that.
It's weird though, like howwould you draw the line there?
Right, exactly.
And you know, is this, I don't knowthe criminal component of this statute,
if there is one, but I know how ourabortion ban works here in Tennessee.
And the liability, the criminalliability falls on the physician.
(18:51):
Like theoretically though, you could bea doctor who's like, Hey, I'm taking.
Who needs a hormone blocker becausethey've got like a puberty issue.
Mm-hmm.
And that, that's a thingthat you could try.
Yeah.
Got it.
Yeah.
And I am sure the legal teens onthese hospitals are, I mean, I know
they had to do it for abortion care.
(19:13):
Yeah.
Now, because people get abortionsto, if they, if their life is
threatened, um, they've had toput on some, like more, I guess.
They've had to cover their ass a lot more.
I don't know.
Is there a nicer legal way to say that?
No.
Okay.
It's also interesting, we ha you know,the plaintiffs referenced this 2020 case
(19:38):
called Bostock v Clayton County, and thiswas actually written by Neil Gorsuch.
Um.
I don't know if it was a conservativemajority at the time, but it was
a, I think a six three decision.
And it said gender identity andsexual orientation are protected
in terms of employment matters.
But the way they got to thatconclusion was really interesting.
And they said it's notreally so much about.
(20:01):
The person's sexual orientation or reallythe person's gender identity, it's based
on their spouse's gender, and that's howyou're discriminating against people.
So I forgot what the case really involved.
I should do like a separate case, butthey were saying, let's say, let's
say I was gay and I was discriminatedagainst at Work The justice that said,
(20:24):
I'm not being discriminated against.
Based on my sexual orientation,I'm being discriminated against
because my spouse is a woman.
That's weird.
That's how this falls underintermediate scrutiny.
It's not sexual orientation necessarily.
It's my wife's gender.
I. How That's so weird because it's, ithas to be something that's highly visible.
(20:48):
So like me walking around, if I wasgay, you wouldn't be able to tell I
was gay just by my physical traits.
You can tell that mywife is a woman though.
Oh wow.
That's weird.
That's like a weird way to get to that.
Isn't that interesting?
Yeah, that's something, uh, I shouldjust do a separate thing on that
case, but yeah, that'd be interesting.
'cause that's, that's, I would've neverguessed that that is and force it.
(21:11):
You wrote that.
That is not He's a conservative.
Yeah, that's justice.
That's strange.
It's kind of, uh, justices kind ofhave their areas of expertise and
his was that, and he also coversa lot of Native American rights.
Interesting.
Yes.
That's very interesting.
Very interesting.
Would not have been that, um, historicallyyou saw, uh, justice O'Connor.
(21:32):
She was an expert in writing ourabortion bans and our, our standard
of review for abortion laws.
Um, justice, uh, uh, Ruth b Ginsburg,she did, um, uh, gender discrimination.
That was her area of expertise.
Justice Scalia, I don't know if it washis area of expertise, but he evolved
(21:54):
kind of our Second Amendment stuff.
And so you're, you're gonna seepeople kind of fall into their areas.
Interesting.
Um, I was interested to see ChiefJustice Roberts right on this, but
I think it's because we're talkingabout the standard of review patterns.
Mm-hmm.
And that's kind of something that hasevolved throughout the court's opinion.
(22:17):
Oh, the Supreme Court also mentioned.
Uh, I don't know if Justice Barrettsaid it or if Justice Roberts, but
they said there's still kind ofongoing studies on this, so it's not
a slam dunk in terms of treatment.
There's some conflicting evidenceas to if it's safe or not for kids.
(22:37):
Oh, interesting.
I don't know.
That's crazy though.
That's that's interesting.
That's how they got there.
Yeah.
Is the age piece, the age piece.
Huh.
Okay.
Yeah.
Yeah, it is interesting.
And I'm curious to see how it'll play out.
Yeah.
(22:58):
Yeah.
Interesting.
Yeah.
It'll, but I mean, it'lldepend on the state, so, huh.
Well, okay.
Learn something.
I did not know that.
So that's that.
Yeah.
United States verse Retti.
Uh, we're signing off.
I'm Claire.
And that was Darren.
Yeah, it was me and that was my babyeating spaghetti in the back end.
(23:21):
Okay.
Bye.
So that was the 2025 US Supreme Courtcase, United States versus Retti.
And this case says thatstates can prohibit.
Children from accessing hormonaltherapies and surgeries in the
context of treating gender dysmorphia.
In this episode, we also went throughthe equal protection clause and the
(23:43):
different levels of scrutiny and analysisthat go into discrimination cases.
So we talked about strict scrutinystandards and how that applies to
race, ethnicity, and country of origin.
We talked about intermediatescrutiny standards and how that
applies to cases regarding genderdiscrimination and legitimacy.
And then we talked aboutrational basis test, which is
(24:05):
our lowest level of scrutiny.
That basically covers any other formof discrimination, including age.
We also discuss substantive due processand how that might be in jeopardy
since the overturn of Roe v. Wade.
If you have any questions,comments, concerns, corrections,
email us hello@alegalpodcast.com.
(24:25):
Thank you so much for listening.
Bye.
Welcome to Case by Case, a legal podcast.
Keep in mind, the contents of thispodcast should not be taken as legal
advice, nor does this podcast establisha client attorney relationship.
Case by case is meant foreducational purposes only.
Enjoy.
Hi there, I'm Claire andthis is Case by Case.
(00:24):
And with me today is my friend Taryn.
Hi Taryn.
Hey everybody.
Taryn, uh, we're going over abrand new US Supreme Court case.
They are issuing their latest opinionsand then they're gonna take a break.
So they're dropping bombsand then going on an RV trip.
(00:45):
It's appropriate.
Uh, the case we're talking abouttoday is United States verse tti.
It was decided June 18th, 2025,and we're recording this, the 26th.
Oh, so fresh, hot off the presses.
This case deals with, uh, Tennesseeand the Tennessee law, and it talks
(01:11):
about the 14th Amendment, specifically,the equal protection clause,
substantive due process as well.
And the Tennessee law that's at thecenter of this case is a law that
prohibits children in Tennesseefrom accessing hormonal therapies
(01:32):
and surgeries in regards to thetreatment of gender dysmorphia.
In other words, transgender kids.
Cannot have access to hormonaltherapies and surgeries.
Okay.
So this is only specific to children.
We're not talking about adults with this.
Correct.
Okay.
It's specific to children.
(01:54):
Okay.
And these types of therapies arespecific to children only in terms
of treating gender dysmorphia.
Got it.
So if you need a hormonal blockerfor another reason, you can
still get that here in Tennessee.
Oh, okay.
Interest, interesting that they draw that.
Distinction, but Okay.
Yeah.
And that's gonna play a role in thiscase, that distinction, and that law
(02:16):
was passed here in Tennessee in 2020.
So let's talk about parties.
So the plaintiffs are transgender,mostly teenagers from Tennessee and
the Biden administration had alsojoined the plaintiffs in this case.
So that's why we seeUnited States in this case.
Got it.
(02:36):
That's the Biden administration.
When Trump took office, the Trumpadministration was not endorsing
this side of the argument anymore.
The defendant is the state of Tennessee.
TTI is our State General Attorney General,so that's why he's named in this case,
so that you get United States verse tti.
(02:58):
Okay, so that's how we get that.
I didn't know they did it like that.
Yeah, they named them, likethey'll name them personally.
In our first case we did Gideon versusWainwright and Wa Wright was a Floridian,
um, attorney, I think, or he was, heran some kind of department out of
Florida, so they'll name 'em by name.
(03:20):
Just kind of interesting.
It is.
Uh, yeah, because likeyou're lied to that forever.
I mean, they're obviously nottaking any personal liability.
It's, but it's how they're named.
Um, yeah, so those are the parties.
The plaintiffs here aregonna raise two arguments.
(03:40):
They're gonna raise the equal protectionclause argument, which is under the
14th Amendment, and a substantivedue process argument, which is also
based somewhat on the 14th Amendment.
Let's talk about the equalprotection clause first.
I was really excited to talk aboutthis case 'cause the Equal Protection
Clause covers a lot of differentthings and there's an interest,
(04:03):
interesting format to those arguments.
So it's found in the 14th Amendment, andthis is what the 14th Amendment says.
No state shall make or enforce any lawwhich shall abridge the privileges or
immunities of citizens of the UnitedStates, nor shall any state deprive
any person of life, liberty, orproperty without due process of law.
(04:25):
And lastly, nor deny any personwithin its jurisdiction, the
equal protection of the laws.
So that's the, that last sentenceis equal protection clause.
So basically you haveto treat people equally.
The court over the years has hadseveral cases and they basically
have three buckets in terms ofthe equal protection clause.
(04:47):
The first bucket is whatwe call strict scrutiny.
That really what, what fallsin that bucket is race,
ethnicity, and country of origin.
So what the court has described asimmutable characteristics, things
you can't change about yourself.
Gotcha.
Yeah.
To survive a strict scrutiny standard.
When we talk about these buckets,we're talking about the standard
(05:10):
at which the court reviews.
Discrimination.
So the strict scrutiny standardis the highest level of scrutiny.
It's really hard for thegovernment to win on these.
The government has a burden of proof,so the government has to go into court
and prove the law serves a compellinggovernmental interest and is narrowly
tailored To achieve that interestusing the least restrictive means,
(05:33):
basically you have to have a reallyimportant reason for doing this.
It has to not be directly targeted atthe race, and it has to be as narrowly
tailored as you can get it to discriminateagainst the smallest amount of people.
Got it.
It usually doesn't hold up.
It's a very high standard wait.
So normally a law like this wouldnot hold anything that brings
(05:59):
up the strict scrutiny standard.
Typically doesn't pass strict scrutiny.
Okay.
Strict scrutiny.
So the things that you feelover like the main bucket.
I got you.
Got you.
Yeah.
So if this were about like, Hey, blackpeople can't go to school, that would
fall under like the strict scrutiny andthat they're not gonna win that one.
Correct.
Got it.
Correct.
(06:19):
The next bucket is intermediatescrutiny, and this usually deals with.
Gender and discussionsbased on quote, legitimacy.
So if you were born and didn'thave a dad in the fifties,
I think this mattered more.
I don't think people careabout that stuff as much.
Um, so this is the standard, thegovernment, so the government still
(06:42):
has the burden of proof, has todemonstrate the law, serves an interest
that is more than just legitimate,but rather important or substantial.
So, uh, a lot of gender casesha have to abide by this
intermediate scrutiny standard.
Here's an example.
It, back in the day, Oklahoma had, wasselling something called near beer.
(07:04):
And it was beer that didn't havethe, a high alcohol content.
They said you could sell it to femaleswho are 18, but not males that were 18.
'cause no, stereotypically they saidthey're more rambunctious and they
won't be able to be trusted with.
Near Beer Fair, which is fair.
The court shut it down though,and they said, well, you know, it
doesn't meet this, you know, this isa violation of the equal protection
(07:27):
clause under intermediate scrutiny.
And then the last bucketis rational basis test.
And the.
Is everything else.
It's age, it's economic status.
It's basically anythingthat isn't gender or race.
And it says the law mustbe rationally related to a
legitimate government purpose.
This means the law must be conceivableand non arbitrary and have that
(07:49):
connection to a government objective.
So an example of this, pilots have toretire after a certain age, and it's
connected to, um, you know, their physicalcapabilities and their reaction time.
Okay, so back to this case.
The plaintiffs here are saying thatthis ban on transgender treatment
(08:09):
is based on gender and they wantintermediate scrutiny to apply.
So that's that gender based one,the one that's in the middle?
Yeah.
They cite, uh, a case from 2020called Bostock verse Clay County.
In that case, the US SupremeCourt held that gender identity
and sexual orientation areprotected in terms of employment.
(08:34):
Mm-hmm.
So they raise that issue.
And then the plaintiffs also raisenot only this equal protection clause,
intermediate scrutiny standard, they alsoraise a substantive due process claim.
So what is substantive due process?
We talked about it in that polygamycase, Taryn, and what it basically
is, is privacy within your hometo make your own decisions.
(08:56):
Got it.
So what's covered un undersubstantive due process.
Lots of things.
Yeah.
It's kind of a controversial topicof law because traditionalists people
that interpret the constitutionvery literally don't believe in it.
It basically says even though the wordprivacy isn't in our constitution.
(09:16):
We believe that the forefathers thoughtit was important because we have a lot
of other things that hint at privacy.
So pretty much they didn't explicitlysay it, I guess, because they thought
it was obvious or like kind of Yeah.
And they referenced, assumed, I guess.
Right.
And they referenced a bunchof different parts of the
constitution that refer to privacy.
(09:38):
So our freedom topractice religion, right?
That's private.
Um, the.
Third amendment, you don't have toquarter soldiers in your home probably
'cause your home is a sacred place.
Mm-hmm.
Fourth Amendment, unlawfulsearches and seizures.
Your home, your person,that's all privacy related.
So they cited all of those and reallythe case that laid the groundwork
(10:00):
for substantive due process wasGriswold versus Connecticut, which
says we have access to birth control.
You can't prohibit people fromgetting birth control access.
So Griswold first connect Capacitis a bunch of other things follow
that fall under substantive dueprocess, including Roe v. Wade.
But the court has since overturnedRoe v. Wade, when they overturned
it, they weren't just overturningyour right to an abortion.
(10:23):
They're questioning substantivedue process as a whole.
So they're saying, do we really have.
Privacy.
Right.
Especially when it comesto medical decisions.
Interesting.
Okay.
So our plaintiffs here that equalprotection clause, intermediate
scrutiny, and substantive due process.
So what happens, they takeit to district federal court.
(10:44):
The district court appliedintermediate scrutiny and they said
this law is unconstitutional andit discriminates based on fender.
Mm-hmm.
It's then appealed up.
The State of Tennessee appeals it.
The appellate court.
So here we're in the sixthcircuit and they said, actually
it's not intermediate scrutiny.
It's that rational basis.
(11:04):
Test that lowest level of scrutiny.
Yeah.
And they uphold the law.
They also shot down this substantivedue process claim, and the appellate
court says, regulating drugs andmedical treatment should fall to the
legislature because it's ever evolvingand evidence-based and we need to take it.
(11:25):
Um, you know, circumstanceby circumstance.
Side note here, many medical bodies,including like the pediatric board, and
they all stand behind these treatmentsfor transgender kids, but there is
some still studies being done about it.
Got you.
Okay.
So now the plaintiff's appeal.
(11:46):
Now we're in US Supreme Courtand now we have the opinion
that was issued on June 18th.
So the Supreme Court declined tohear that due process argument.
So they shot down thesubstantive due process part.
They didn't even shut it down.
They were just like, theydidn't wanna comment on it.
We wanna say it.
(12:07):
They interesting 'cause they're theone that kind of stirred the pot,
but the overturning Roy Wade, and nowthey're scared to talk about it, right?
So many things fall under thissubstantive due process theory.
It's also important to note thatprocedural due process, you're right to a
trial, that's something different, right?
But birth control falls under it.
Our right to live with people in ourfamily that aren't our nuclear family.
(12:31):
So if your grandma wants to movein with you, that's protected.
Under substantive due process.
Gay marriage, interracialmarriage, um, sodomy laws were.
Determined unconstitutionalbased on substantive due process.
Okay, so when they overturned Roe v.Wade, really they've thrown all that
(12:53):
other stuff somewhat back into question.
Correct.
You could be questioned.
Correct.
And really when they overturned it,that was what they were overturning.
And our, our right to refusemedical treatment is under this.
So let's say, you know, you've beenfighting cancer for a while and you say,
you know what, I'm done with chemotherapy.
That's under this.
(13:14):
It covers a lot of stuff.
That's pretty much everything, honestly.
Um, yeah.
And, and when we think of our, youknow, our, the latest kind of wave
of constitutional law, a lot of itrelies on substantive due process.
So the court declinedto hear that argument.
Okay.
Whatever.
I don't think, I think theywere like, oh, just kidding.
(13:37):
Not just kidding, but then theyrealized how mad they made people.
Yeah.
Now they're like, wedon't wanna talk about it.
Yeah, yeah, yeah.
It's interesting the, I think Congress toois acting to codify some of those rights
into law since, since that happened.
Okay.
But they did decide to hear theequal protection clause piece.
(13:57):
Now we talked about race,we talked about gender.
Those get this heightened levelof scrutiny at the courts.
But let's talk about why they're there.
So the group being discriminatedagainst has to have been
historically discriminated against.
They have to have immutableor highly visible trait.
So if you're a differentrace, that's highly visible.
If you're a a woman or a man that'stypically highly visible, you have to
(14:22):
lack political power and you have tohave a distinguishing characteristic
that does not inhibit you fromcontributing meaningfully to society.
Yep.
So writing for the majority hereis Chief Justice John Roberts.
John Roberts is conservative,leaning, but also somewhat moderate.
(14:43):
He has to, as a chief justice,their job is to run the court.
Um, so he wrote the opinion here.
The Chief Justice doesn't always writethe opinion, but he did in this case.
And basically they agree with theappellate court and they said this doesn't
fall under a heightened level of scrutiny.
It shouldn't.
Fall under that intermediatelevel of scrutiny.
(15:05):
And he says, our role here is to notjudge the wisdom, fairness, or logic of
the law, but to ensure that it doesn'tviolate the equal protection clause.
And they said the law really doesn'tdiscriminate based on your gender.
It's discriminating based on your age.
Because minors can't have access to it.
(15:26):
Okay.
So there's, oh, interesting.
So he's saying it's really age andmedical needs, which is rational basis.
That lower level mm-hmm.
Of, of review.
Which is interesting.
I get, well, I guess he's not wrong.
Like if, if the law is specificto minors and it is, yeah.
(15:51):
Okay.
Yeah.
And they're saying, well, you know,if you're born female and born
male and you wanna transition, bothof those people are being treated
the same, both of those buckets.
Oh yeah.
I mean, I guess that is true, thatthat is accurate, which is, yeah,
there is a concurrence, which meansa justice agrees with the majority,
(16:14):
but wants to add, they wanna talk to.
Basically they're like, wait, wait, wait.
I haven't said anything in so long.
Um, and Justice Barrett does theconcurrence, but she says about this
minority, about transgender people.
She was saying they have not proven deyour discrimination, meaning an officially
(16:40):
recognized practice of discriminationagainst this group of people.
That leads us to the dissent.
So the dissent are our three liberaljustices, uh, justice Sotomayor,
justice Jackson, and Justice Kagan.
And they dissent, meaning they don'tagree with the majority opinion.
Um, they said the UR discrimination ishappening all the time and it's happening
(17:01):
right now, um, with our governmenttaking out transgender people from the
military and, and those types of policies.
So.
That's kind of where it falls.
We had six justices saying that states areallowed to pass laws similar to this one.
And we had three justices dissentingsaying that this, this is discrimination.
(17:24):
And you know, we've noticeda pattern of discrimination
against this group of people.
I, the i the age thingis sticking with me.
Like that's an interesting,like, it's an interesting
argument wrinkle and you wonder.
Okay.
Well if there's gonna be a law then thatdiscriminates against, you know, people on
(17:46):
Medicaid getting this type of treatment.
Right.
I wonder how that's gonna play out becauseI did well if using that same logic.
Yeah.
I don't know it.
Interesting.
What would they say if it were, if thisweren't specific to minors, to kids?
If this was a broader situation, it.
(18:09):
That's not an argument.
You could make that case though.
Yeah.
I don't know.
The, these plaintiffs didn't evenbring up the surgical part in their
arguments, so it really just focusedon, uh, medication and hormone blockers.
Interesting.
And I don't know anything about that.
I'm not a doctor.
Right.
But yeah, they were saying,let's say you start puberty early
and you need a hormone blocker.
(18:30):
You can use it for that.
It's weird though, like howwould you draw the line there?
Right, exactly.
And you know, is this, I don't knowthe criminal component of this statute,
if there is one, but I know how ourabortion ban works here in Tennessee.
And the liability, the criminalliability falls on the physician.
(18:51):
Like theoretically though, you could bea doctor who's like, Hey, I'm taking.
Who needs a hormone blocker becausethey've got like a puberty issue.
Mm-hmm.
And that, that's a thingthat you could try.
Yeah.
Got it.
Yeah.
And I am sure the legal teens onthese hospitals are, I mean, I know
they had to do it for abortion care.
(19:13):
Yeah.
Now, because people get abortionsto, if they, if their life is
threatened, um, they've had toput on some, like more, I guess.
They've had to cover their ass a lot more.
I don't know.
Is there a nicer legal way to say that?
No.
Okay.
It's also interesting, we ha you know,the plaintiffs referenced this 2020 case
(19:38):
called Bostock v Clayton County, and thiswas actually written by Neil Gorsuch.
Um.
I don't know if it was a conservativemajority at the time, but it was
a, I think a six three decision.
And it said gender identity andsexual orientation are protected
in terms of employment matters.
But the way they got to thatconclusion was really interesting.
And they said it's notreally so much about.
(20:01):
The person's sexual orientation or reallythe person's gender identity, it's based
on their spouse's gender, and that's howyou're discriminating against people.
So I forgot what the case really involved.
I should do like a separate case, butthey were saying, let's say, let's
say I was gay and I was discriminatedagainst at Work The justice that said,
(20:24):
I'm not being discriminated against.
Based on my sexual orientation,I'm being discriminated against
because my spouse is a woman.
That's weird.
That's how this falls underintermediate scrutiny.
It's not sexual orientation necessarily.
It's my wife's gender.
I. How That's so weird because it's, ithas to be something that's highly visible.
(20:48):
So like me walking around, if I wasgay, you wouldn't be able to tell I
was gay just by my physical traits.
You can tell that mywife is a woman though.
Oh wow.
That's weird.
That's like a weird way to get to that.
Isn't that interesting?
Yeah, that's something, uh, I shouldjust do a separate thing on that
case, but yeah, that'd be interesting.
'cause that's, that's, I would've neverguessed that that is and force it.
(21:11):
You wrote that.
That is not He's a conservative.
Yeah, that's justice.
That's strange.
It's kind of, uh, justices kind ofhave their areas of expertise and
his was that, and he also coversa lot of Native American rights.
Interesting.
Yes.
That's very interesting.
Very interesting.
Would not have been that, um, historicallyyou saw, uh, justice O'Connor.
(21:32):
She was an expert in writing ourabortion bans and our, our standard
of review for abortion laws.
Um, justice, uh, uh, Ruth b Ginsburg,she did, um, uh, gender discrimination.
That was her area of expertise.
Justice Scalia, I don't know if it washis area of expertise, but he evolved
(21:54):
kind of our Second Amendment stuff.
And so you're, you're gonna seepeople kind of fall into their areas.
Interesting.
Um, I was interested to see ChiefJustice Roberts right on this, but
I think it's because we're talkingabout the standard of review patterns.
Mm-hmm.
And that's kind of something that hasevolved throughout the court's opinion.
(22:17):
Oh, the Supreme Court also mentioned.
Uh, I don't know if Justice Barrettsaid it or if Justice Roberts, but
they said there's still kind ofongoing studies on this, so it's not
a slam dunk in terms of treatment.
There's some conflicting evidenceas to if it's safe or not for kids.
(22:37):
Oh, interesting.
I don't know.
That's crazy though.
That's that's interesting.
That's how they got there.
Yeah.
Is the age piece, the age piece.
Huh.
Okay.
Yeah.
Yeah, it is interesting.
And I'm curious to see how it'll play out.
Yeah.
(22:58):
Yeah.
Interesting.
Yeah.
It'll, but I mean, it'lldepend on the state, so, huh.
Well, okay.
Learn something.
I did not know that.
So that's that.
Yeah.
United States verse Retti.
Uh, we're signing off.
I'm Claire.
And that was Darren.
Yeah, it was me and that was my babyeating spaghetti in the back end.
(23:21):
Okay.
Bye.
So that was the 2025 US Supreme Courtcase, United States versus Retti.
And this case says thatstates can prohibit.
Children from accessing hormonaltherapies and surgeries in the
context of treating gender dysmorphia.
In this episode, we also went throughthe equal protection clause and the
(23:43):
different levels of scrutiny and analysisthat go into discrimination cases.
So we talked about strict scrutinystandards and how that applies to
race, ethnicity, and country of origin.
We talked about intermediatescrutiny standards and how that
applies to cases regarding genderdiscrimination and legitimacy.
And then we talked aboutrational basis test, which is
(24:05):
our lowest level of scrutiny.
That basically covers any other formof discrimination, including age.
We also discuss substantive due processand how that might be in jeopardy
since the overturn of Roe v. Wade.
If you have any questions,comments, concerns, corrections,
email us hello@alegalpodcast.com.
(24:25):
Thank you so much for listening.
Bye.
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