Preventing harm to children is a goal with which most people would agree. But the widening gulf between red and blue states has meant that, in a range of areas, there is no consensus—indeed, there’s extreme polarity—on what “harm” even means. On the issue of gender-affirming medical treatments for trans children and adolescents, both sides have claimed life-or-death stakes. More than half the states have laws that limit doctors from giving such treatments to minors; the remaining states allow this kind of care. On Wednesday, the Supreme Court, in United States v. Skrmetti, held that a Tennessee state ban on the use of puberty blockers and hormones to treat minors’ gender dysphoria does not violate the equal-protection clause of the Constitution. The decision will allow other states to leave in place dozens of similarly restrictive laws.

The bid to get the Supreme Court to strike down those bans, as it once did with abortion bans, was a pipe dream. But it’s difficult to imagine a version of legislation more likely to run afoul of the Court’s equal-protection doctrine than what the Tennessee legislature enacted. The statute, SB1, prohibits medical providers from using puberty blockers, hormones, or surgery to enable a minor to identify with a “purported identity inconsistent with the minor’s sex”—but allows the same medical treatments to be used for other purposes, including to support the “normal development” of a “minor’s sex.” One of the law’s explicitly stated purposes is “encouraging minors to appreciate their sex” and not “to become disdainful of their sex.” SB1 seemed like an obvious, textbook example of a law that “classifies” based on sex, and therefore is supposed to be subject to “heightened” or “intermediate” scrutiny, in which a court asks whether the sex classification is substantially related to the achievement of an important government objective. If the answer is no, the law is unconstitutional. As Justice Sonia Sotomayor pointed out in a dissent, which was joined by the two other liberal Justices, “Sex determines access to the covered medication.” The state permits the use of puberty blockers and hormones “to help a male child, but not a female child, look more like a boy; and to help a female child, but not a male child, look more like a girl,” Sotomayor wrote. If that is not a sex classification, what in the world is?

Like the dissenters, many students of equal-protection doctrine would immediately have perceived a sex classification here and moved to analyze it under intermediate scrutiny. But Chief Justice John Roberts’s majority opinion, which was joined by the other five conservative Justices, was a master class in reframing the issues to see something entirely different. In his eyes, SB1 was hardly about sex at all and “clearly does not classify on the basis of sex.” Instead, he saw in the law only classifications based on age and “medical use.” That is, when “a transgender boy (whose biological sex is female) takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty.” So, according to the Court, access to the medicine turns not on whether the patient is a boy or a girl, but rather on what medical condition the drug is prescribed for. Banning the medicine to treat gender dysphoria prohibits it equally for both boys and girls, and allowing the same medicine to treat precocious puberty permits it equally for both as well. Ergo, no sex classification, Roberts concluded. These gymnastics make one wonder whether any classification based on sex could, presto chango, turn out not to be.

The Court similarly swatted away an argument that SB1 discriminates against trans people, reasoning that both transgender and cisgender minors are equally unable to receive the medicine to treat gender dysphoria. (To me, this logic is as faulty as that of the case the conservative Justices relied on at length, Geduldig v. Aiello, which, in 1974, found that discrimination on the basis of pregnancy is not sex discrimination because some women don’t get pregnant.) Because Roberts did not see the law as classifying based on transgender status, he did not find the need to address the question of whether transgender status is a suspect or quasi-suspect class—like race, national origin, or sex—in which case the law also would have received a higher level of judicial scrutiny. (The Court has not declared a new suspect class in five decades, since it found that sex was quasi-suspect.) Justices Amy Coney Barrett and Samuel Alito, in separate concurring opinions, went the extra mile to underscore that they do not believe transgender people are a suspect class, asserting, among other things, that being trans is not, like race, “an immutable characteristic.” Barrett added that a suspect class must be a group with a history of discrimination embedded in the law—not just a history of being discriminated against in general—and found that transgender people do not fit that criterion.

Underneath the Chief Justice’s clipped conclusions, the beating heart of Skrmetti was the Court’s subdued but palpable horror at the state of scientific evidence on the efficacy and safety of pediatric gender-affirming treatments. In its 2023 petition to the Court, Biden’s Justice Department came in with overblown claims of scientific consensus—that “overwhelming evidence” supports the use of puberty blockers and hormones for pediatric gender dysphoria, and that it is “the overwhelming consensus of the medical community”—just as the public was starting to learn how much uncertainty lies beneath common practices and recommendations in pediatric gender-affirming medicine. Several Justices’ concurring opinions foregrounded the dearth of reliable studies and conclusive findings about long-term outcomes of the use of puberty blockers and hormones for transgender minors, and cited several European countries’ acknowledgments in the past several years about the insufficient evidence. England’s National Health Service report on the subject, published in April of 2024 and known as the Cass Review, concluded that there is “no good evidence on the long-term outcomes of interventions to manage gender-related distress” in trans minors, and that “results of studies are exaggerated or misrepresented by people on all sides of the debate to support their viewpoint.” (Justice Clarence Thomas’s concurring opinion seemed to get sidetracked in something of a screed against “the expert class” and “elite sentiment” operating “under the guise of scientific judgment,” even citing a favorite medical bugbear, eugenics.)

It was always tough to picture the current Court telling states that they cannot limit pediatric gender-affirming medical treatments. But there had been a chance that Justice Neil Gorsuch, joined by Chief Justice Roberts, would take a surprising stand, as he did in Bostock v. Clayton County, in 2020, to form a majority; in that case, the Court concluded that employment discrimination against gay or transgender employees violates Title VII’s ban on discrimination “because of” an individual’s “sex,” reasoning that it is “impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Persuading two conservative Justices to extend this highly formalistic reasoning into a constitutional equal-protection case about pediatric gender-affirming medicine required delicacy. But the failure to sufficiently acknowledge medical uncertainty made even knockdown legal arguments to the Court seem untrustworthy. Believing that the petitioner’s legal arguments were more correct than Tennessee’s in light of the sum total of past constitutional sex-equality cases and the gravitational force of Bostock, I had wondered if the loss of credibility regarding medical evidence would push away the possible swing votes. Modesty about the state of the scientific evidence would have been perfectly consistent with a constitutional objection to a sex classification that deprives doctors of the ability to exercise medical judgment and determine what is appropriate for particular patients.

In any event, a Gorsuch-led majority reprising the reasoning of Bostock did not materialize. The Court found SB1 constitutional because it concluded that the state had legitimate concerns about the possible risks of physical and psychological harm to minors, including irreversible sterility and regret. In the face of medical uncertainty, the Court was unwilling to “second-guess” a legislature’s decision. Justice Gorsuch remained notably silent and merely signed onto the Chief Justice’s opinion.