Oral argument will be had today in United States v. Skrmetti, challenging the Tennessee law prohibiting medical intervention for minors for gender dysphoria, pitting the Equal Protection Clause for sex discrimination against the unsettled medical nature of hormonal to surgical interventions for children.

The Tennessee law prohibits medical providers from prescribing puberty-delaying medication, offering hormone therapy or performing surgery to treat the psychological distress caused by incongruence between experienced gender and that assigned at birth. But the law allows those same treatments for other purposes.

The primary question for the justices is not whether Tennessee’s ban is wise or consistent with the views of medical experts. It is, instead, whether the law makes distinctions based on sex. If it does, a demanding form of judicial review — “heightened scrutiny” — kicks in. If it does not, the Tennessee law will almost certainly survive.

The mess begins with the sloppy Supreme Court decision in Bostock by Justice Neil Gorsuch, providing impetus to the challenge.

“It is impossible,” Justice Gorsuch wrote, “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Chief Justice John G. Roberts Jr. joined the majority opinion, as did what was then the court’s four-member liberal wing.

The key here was that the decision did not state that discrimination against gay or transgender people constituted sex discrimination, but could not occur without it simultaneously being sex discrimination. The problem is whether this sweeping statement holds true in all circumstances, a problem also noted in the opinion which expressly limited its scope to employment discrimination under Title VII and excluded Title IX.

If Justice Gorsuch’s assertion was correct, then it should be correct in all instances. If not, then it’s incorrect. And it was most assuredly contrary to anyone’s understanding of sex discrimination at the time the law was enacted.

In dissent, Justice Samuel A. Alito Jr. wrote that “the arrogance of this argument is breathtaking,” adding that “there is not a shred of evidence that any member of Congress interpreted the statutory text that way” when the civil rights law was adopted in 1964.

The district court, by a Trump appointed judge, accepted the plaintiff’s argument, that this was sex discrimination, and enjoined the law.

Judge Eli Richardson of the Federal District Court in Nashville ruled for the challengers in 2023, accepting almost all of their arguments.

“The court realizes,” he wrote, “that today’s decision will likely stoke the already controversial fire regarding the rights of transgender individuals in American society.”

But was this about transgender rights, or about drawing a distinction between the medical choices available to adults as opposed to children? The Sixth Circuit held the latter.

A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, reversed that decision. Tennessee’s law, Judge Jeffrey S. Sutton wrote for the majority, was a reasonable legislative response to contested medical evidence.

“The unsettled, developing, in truth still experimental, nature of treatments in this area surely permits more than one policy approach,” he wrote, “and the Constitution does not favor one over the other.”

The federal government came in on the side of plaintiffs, challenging the law.

In the Biden administration’s brief in the case from Tennessee, Elizabeth B. Prelogar, the U.S. solicitor general, said that was right, writing that “exactly the same thing is true under the equal protection clause” as was the case under Bostock.

“If, for example,” she wrote, “a state prohibits an adolescent assigned female at birth from receiving testosterone to live as a male, but allows an adolescent assigned male at birth to receive the same treatment, the state has relied on a sex-based classification — and thus must justify its law under heightened scrutiny.”

If this was the only point at issue, it would seem that Tennessee had the better argument, that this was not a case about discriminating against transgender children, but a case about distinguishing the treatment permitted for children as opposed to adults.

And, indeed, Chase Strangio, arguing the case on behalf of the ACLU, who is a transgender lawyer and, ironically, has taken some shockingly illiberal positions in favor of transgenders including fighting for censorship of Abigail Shrier’s book, Irreversible Damage: The Transgender Craze Seducing Our Daughters, laments that he did not transition until after he was in his 20s.

That self-doubt ultimately waned because I had access to medical treatment to affirm my gender. I found peace in my body, which allowed me to find peace in the world. My only regret was how long it took for me to get that medical care and how many years I suffered without it.

Do Strangio’s feelings inform the Court about anyone else? There are no doubt children who will ultimately choose to transition and wish they could have done so earlier. There will also be children, or parents of children, who thought they were transgender, but later realized they weren’t and will be thankful they were saved from a destructive childish choice. But the discrimination argument doesn’t end there.

But all Dobbs said, Mr. Strangio went on, was that regulation of a medical procedure that only one sex can undergo is not by itself sex discrimination. The treatments at issue in the Tennessee case are different, he said.

“If a 14-year-old goes to the doctor’s office and says, ‘I want to have a puberty consistent with my male friends,’ the doctor can say yes to the person assigned male who’s just developing later than his peers, but not to the person assigned female who’s transgender,” Mr. Strangio said.

If the medical treatment is prohibited to one sex, but not the other (and the plaintiffs have already been held to lack standing as to surgical interventions, so they’re off the table), Bostock would seem to control. If this seems wrong, consider that it’s a by-product of Justice Gorsuch’s sloppy language, and the Court’s majority signing onto it.