After Justice Neil Gorsuch’s muddled opinion in Bostock v. Clayton County, the door seemed at least ajar, if not wide open, to ACLU lawyer Chase Strangio to argue that discrimination against transgender people violated the Equal Protection Clause, and that like sex discrimination in Bostock, it deserved higher scrutiny than rational basis analysis if a state was to enact a law that discriminated against transgender people.

The State of Tennessee prohibited medical procedures, characterized as “gender-affirming care” by its advocates and supporters, and more precisely as puberty blockers and hormones as surgical intervention was already off the table, for minors. The catch was that the same medical treatment was permissible for other reasons, such as precocious puberty, but not for gender dysphoria. Gender dysphoria, of course, is the diagnosis that gives rise to someone being transgender, although being transgender is not limited to gender dysphoria.

How could this not be sex discrimination under Bostock? How could a law prohibit the medical interventions that were otherwise lawful and permitted when applied to transgender children? How could this not compel heightened scrutiny rather than the easily surmounted rational basis analysis?

On its face, SB1 incorporates two classifications: one based on age (allowing certain medical treatments for adults but not minors) and another based on medical use (permitting puberty blockers and hormones for minors to treat certain conditions but not to treat gender dysphoria, gender identity disorder, or gender incongruence). Classifications based on age or medical use are subject to only rational basis review. See Massachusetts Bd. of Retirement v. Murgia, 427 U. S. 307 (per curiam); Vacco v. Quill, 521 U. S. 793. The plaintiffs argue that SB1 warrants heightened scrutiny because it relies on sex-based classifications. But neither of the above classifications turns on sex. Rather, SB1 prohibits healthcare providers from administering puberty blockers or hormones to minors for certain medical uses, regardless of a minor’s sex. While SB1’s prohibitions reference sex, the Court has never suggested that mere reference to sex is sufficient to trigger heightened scrutiny. And such an approach would be especially inappropriate in the medical context, where some treatments and procedures are uniquely bound up in sex.

The application of SB1, moreover, does not turn on sex. The law does not prohibit certain medical treatments for minors of one sex while allowing those same treatments for minors of the opposite sex. SB1 prohibits healthcare providers from administering puberty blockers or hormones to any minor to treat gender dysphoria, gender identity disorder, or gender incongruence, regardless of the minor’s sex; it permits providers to administer puberty blockers and hormones to minors of any sex for other purposes. And, while a State may not circumvent the Equal Protection Clause by writing in abstract terms, SB1 does not mask sex-based classifications.

The rationale of the 6-3 decision (along partisan lines) written by Chief Justice John Roberts in United States v. Skrmetti strikes me as shamefully similar to that of Geduldig v. Aiello, which held that pregnancy discrimination is not sex discrimination because not all women wanted to be pregnant. Rather than squarely face the issue of whether discrimination against transgender people was sex discrimination and deal with it, the Court employed a rhetorical gimmick to hold that the law merely prohibited certain medical procedures, that coincidentally only applied to transgender youth, rather than discrimination against sex-based classifications.

Over the past decade, transgender activists sought to redefine sex discrimination to include discrimination against gay and transgender people, even though that was clearly not the intent when the Civil Rights Law of 1964 was enacted and efforts to modify the law to cover gay and transgender people failed over and over again. This gained traction based on Bostock’s muddled rationale, which would have been fine had it stopped at the point where it concluded that the discrimination would not have occurred “but for” sex. But Bostock didn’t stop there.

The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Apparently, the answer wasn’t clear at all, for the same rationale applies where giving minor boys hormones for boys is fine, but giving the same hormones to minor girls is unlawful.

None of this, frankly, came as much of a surprise, given the shift in the federal government’s views about transgender people.

In recent years, many L.G.B.T.Q. activists came to believe that gender identity should supplant older understandings of physical sex. In this view, all people have the right to determine their own gender, regardless of how they dressed or whether they opted for medical transition. This self-identified gender — not your physical body — should determine what appears on your driver’s license, which bathrooms you could access and what sports teams you could play on. When Joe Biden was elected in 2020, his administration embraced much of that worldview, directing government agencies to interpret old civil rights laws against sex discrimination to include this more novel — and more contested — concept of gender identity.

Had the Court squarely addressed the question of whether discrimination against transgender people was sex discrimination, thereby “clarifying” Bostock’s reach and answering the array of issues arising from the activists’ efforts to redefine sex discrimination, it would have shocked no one.

In private meetings of L.G.B.T.Q. legal-advocacy groups, many lawyers expected a loss almost from the moment the Supreme Court agreed to hear the case, according to one person briefed on the conversations. On the outside, many experts considered the case an extraordinary risk. Not only was there little chance that the conservative-dominated court would expand heightened constitutional protections to trans people; a defeat in Skrmetti could open the door to other losses. “If you can’t win a challenge to strike down a gender-affirming-care ban, it’s going to be hard to win other cases around trans rights,” said Michael Ulrich, a professor of health law and human rights at Boston University.

While the Skrmetti decision, which also declined to extend Bostock beyond Title VII, left little doubt that the Court was not going to embrace the redefinition of sex discrimination that activists’ sought, it avoided the real, and obvious, issue raised by activists of whether discrimination against transgender youth deserved the heightened scrutiny given sex discrimination and instead used a gimmick to sidestep a question that needed a real answer since the muddled decision in Bostock.