True to
form, the Circuit Courts in Skrmetti and Eknes-Tucker rejected
the argument that gender-affirming healthcare bans implicated a protected class
in which heightened scrutiny applied. According to the Sixth Circuit, “It’s
highly unlikely, as an initial matter, that the plaintiffs could show that the
Act lacks a rational basis.”
“The reality
that the [gender-affirming care] drugs’ effects correspond to sex in these
understandable ways and that Tennessee regulates them does not require
skeptical scrutiny.” The Sixth Circuit
Court’s ruling explicitly brought Dobbs into the forefront. “If a law
restricting a medical procedure that applies only to women does not trigger
heightened scrutiny, as in Dobbs, a law equally applicable to all
minors, no matter their sex at birth, does not require such scrutiny either,”
the opinion states.
Similarly,
the Eleventh Circuit stated that, while the gender-affirming healthcare ban
“restricts a specific course of medical treatment that, by the nature of
things, only gender nonconforming individuals may receive,” heightened
constitutional scrutiny is not triggered “unless the regulation is a ‘mere
pretext designed to effect an invidious discrimination against members of one
sex or the other, as explained by the Supreme Court in Dobbs.”