Legal Docket: Transgender medical intervention

Editor's note: The following text is a transcript of a podcast story. To listen to the story, click on the arrow beneath the headline above.

MARY REICHARD, HOST: It’s The World and Everything in It for this 23rd day of June, 2025. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

MONTAGE: Good morning. We are coming on the air with breaking news from the U.S. Supreme Court. / Breaking news, the Supreme Court has just released a major decision upholding a Tennessee / ban on gender affirming care for transgender minors. / It's an important decision. / This is a heartbreaking ruling for transgender young people. / The ruling was six to three / a 6-3 decision today, the justices ruled that the state’s law did not violate the Constitution's Equal Protection Clause. / Justice Sonia Sotomayor wrote in her dissent the outcome in this case, quote, authorizes, without second thought, / untold harm to transgender children and the parents and families who love them. / If everybody starts following suit, then we're just stuck. I mean, I don't know what that would mean for us. / The states get to do what they want, if they want to pass bans, if they want to keep things just as they are, they're able to do it, but we as the court are not going to be the final arbiters of that. / The White House released a statement saying, in part, quote, today's landmark ruling by the Supreme Court is a victory for our Constitution … and common sense. / Tennessee not alone here, / roughly half of states have a ban that is similar to the one in Tennessee, and this focuses on access to certain medications that can facilitate a gender transition.

That’s one of the monumental cases of this Supreme Court term. And as resounding as it was, and as alarmed as the three dissenting justices were, Mary’s analysis of this case does come with a bit of a cause for concern: Chief Justice Roberts’s majority opinion does accept some of the assumptions of gender ideology and she’ll tell you about that in just a few minutes. We’ve got a lot to cover.

REICHARD: Right, but before we do, let’s give a quick update on the June Giving Drive. If you remember back in the first week, we had an initial challenge gift, and it took you just three days to exceed it! Then the next week came a second, larger challenge gift and guess what? We can report it was just another three days and you exceeded that! So it’s going great. Thank you for your support, and if you haven’t given yet and you’ve been thinking you want to we are down to our last week of the drive and we do still need your gift.

EICHER: We do, and every gift goes to journalism, more strong analysis, more in-the-field reporting, more daily news in print, online, and on-the-air, more of what you rely on from WORLD.

For our part we simply rely on you; when we say “listener supported,” we mean exactly that. Please go to WNG.org/JuneGivingDrive. If you benefit from the kind of analysis you get with Legal Docket, if you benefit from the wisdom of people like David Bahnsen and John Stonestreet, if our reporting from Washington and around the world, frankly, if that reporting is worth supporting, then please make that known in this June Giving Drive.

It’s time for Legal Docket.

The case U.S. v. Skrmetti drew attention as the most significant ruling on how the Constitution applies to laws about transgender medical interventions.

REICHARD: I called up an associate professor of law at Notre Dame Law School to talk about the decision. Sherif Girgis focuses on constitutional law and served as clerk for Justice Samuel Alito:

GIRGIS: The Supreme Court … said that that law is okay under the Equal Protection Clause of the Constitution.

Girgis explained what that clause means:

GIRGIS: It shows up in the 14th Amendment…adopted after the Civil War. It says no state shall deny to any person the equal protection of the laws.

But not every law that treats people differently violates that clause. And that’s because some classifications—like those based on race or sex— require a higher bar to justify infringing on the rights of people based on those traits.

Girgis says this case turned on whether Tennessee’s law used one of those so-called suspect classifications.

GIRGIS: You’re allowed to apply puberty blockers to deal with early puberty. But you’re not allowed to apply them to any minors if the goal of the treatment is to relieve gender dysphoria or to help the minor approximate the opposite sex. Whether you’re a male or female minor, you’re subject to the same rule.

EICHER: That’s the difference: medical purpose, not gender identity. To return a body to normal physiology, not change for reasons of asserted mental health.

The decision says the law merely regulates a specific use of treatment for gender transition.

That’s the argument made by Tennessee’s lawyer Matthew Rice in December:

RICE: The Equal Protection Clause does not require the states to blind themselves to medical reality or to treat unlike things the same.

Justice Alito raised a key question during oral argument in this exchange with Chase Strangio, the lawyer arguing to strike down Tennessee’s law:

ALITO: Are there individuals who are born male … who at one point identify as female but then later come to identify as male,... Are there not such people?

STRANGIO: There are such people. I agree with that, Justice Alito.

ALITO: So it’s not an immutable characteristic, is it?

REICHARD: Girgis says that exchange goes to the heart of the court’s reasoning: whether gender identity is an immutable trait. The court has a test for that:

GIRGIS: And that test looks to a couple different factors. So whether as caselaw puts it, a discrete and insular minority based on an immutable characteristic, and whether that group lacks political power, where there’s a history of discrimination against the group, and whether the trait in question has any reasonable connection to policy concerns. And on those fronts, the justices said transgender status should not trigger heightened scrutiny.

EICHER: Justice Elena Kagan dissented. She thought heightened scrutiny was appropriate here—but said lower courts should sort out the facts first.

Justice Sonia Sotomayor went further in dissent, joined by Justice Ketanji Brown Jackson in full. That dissent faults the state for approving a law that relies on sex stereotypes.

That raises the question of the meaning of words. Recall the infamous exchange between Senator Marsha Blackburn and then–Judge Jackson during her confirmation hearing for the Supreme Court.

BLACKBURN: Can you provide a definition for the word “woman?”

JACKSON: Can I provide a definition? No. I can’t.

BLACKBURN: You can’t?

JACKSON: Not in this context. I’m not a biologist.

REICHARD: If a judge must be a biologist to define the sexes, how can a justice rely on arguments about sex stereotypes?

That incoherency aside, the majority pointed out the law is not about sex stereotypes —it’s about health concerns and potential regret. And that’s a legislative call, not a judicial one.

GIRGIS: The fact that there’s uncertainty is an extra reason in the court’s view for the courts to defer to lawmakers. So lawmakers have all kinds of means at their disposal: to try to wade through the empirical medical, other sorts of evidence on both sides of an issue. They can hold hearings, they can bring in experts to testify, they can question the experts. They can commission studies. They can do all kinds of things. Courts are more limited in the resources they have to examine those issues.

And then there’s the matter of states rights:

GIRGIS: In the courts view, in general, it's for the states to make the kinds of controversial empirical and medical judgments that are involved in regulating health. And the states are owed a margin of deference from the courts on that front. So the fact that there's controversy and change and flux on these issues just makes it that much harder harder for the court to overcome its default of deferring to the states on health policy.

I asked Girgis what this ruling might mean going forward in other contexts. For example, if women’s sports can exclude biological males as a matter of policy:

GIRGIS: It'll be hard for people to say those other policies are unconstitutional because they discriminate against transgender identifying people… And then at least three of the justices are on the record now saying we don't even think that laws that do discriminate based on gender identity should trigger heightened scrutiny, and so that might influence how lower courts think about that question.

Girgis studies the intersection of law and religion, so I asked about that:

GIRGIS: People do also have religious beliefs about these issues, based on a Genesis vision of male and female being kind of original parts of the created order and valuable… and complimentary and equal.

And from those angles, then you'll face a question, if you're an employer, if you are running a school, if you're in these other capacities in civil society where you want to honor your own beliefs about men and women in the public square, I think there's a cultural impact to the court saying those distinctions are reasonable.

REICHARD: One other note we referenced at the top: On page 12 of the opinion, and you can read this yourself, the Chief Justice referred to a biological female as a “he.” I’ll read it:

“When, for example, 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 two kinds of boy … and one of them is a girl … in a Supreme Court opinion upholding a state law protecting children from this kind of confusion.

And that’s a problem, because laws and the judges who interpret them need to be precise in language. It’s a false premise to just take a person’s subjective feeling as reality. Accepting ideological language moves the culture in directions for which courts aren’t well-suited.

Still, the key legal takeaway is the court’s rational-basis standard of review—and that will be useful in future cases involving gender ideology … green-lighting legislatures and not just at the state level.

EICHER: Alright, in a 5-4 opinion in Perttu v Richards, the Supreme Court ruled that when there’s a fact dispute over whether a prisoner completed the prison’s internal grievance procedure, that’s for a jury to decide. Not a judge.

The dispute centers on a 1996 law called the Prison Litigation Reform Act. It aimed to reduce frivolous lawsuits filed by inmates.

But inmate Kyle Richards alleges the process failed him. He filed a grievance, but the prison staff allegedly destroyed it.

REICHARD: Mike Fox with the libertarian Cato Institute supported Richards:

FOX: You wind up with a situation where the person who’s responsible for taking the reports or the claims just destroys them. And then the prisoner never gets his day in court.

Chief Justice Roberts writing for the majority said the Seventh Amendment guarantees the right to a jury trial.

FOX: Justice Roberts, in his opinion, did note that, you know, increased litigation concerns cannot override constitutional rights...

The decision means Richards’ case can proceed. But it doesn’t mean it’ll necessarily succeed in the end.

EICHER: Fox says he would’ve preferred a unanimous opinion instead of a split, but:

FOX: It doesn't matter. So it's like if you pass the bar exam by one point versus 100 points. You're still a lawyer.

The four dissenters argued the law doesn’t mention jury trials, so courts ought not read that into it.

Well now, we’ll end today with four more decisions, and we’ll do them in brief.

REICHARD: Yes. And this opinion had court watchers laughing, because it’s 2025 and the case is about faxes.

One 24 year old commenter on a Supreme Court blog had to ask: “What’s a fax?”

Replies poured in, for example: “It’s when an email and a phone call have a baby.” Another: A fax is “a big paper tweet.” And: “I’d tell you, but first you’d have to know what a land line is.” (laugh)

EICHER: Anyway, in a 6 to 3 ruling the Court sided with a small medical practice that sued the McKesson Corporation for sending unsolicited “big paper tweets.”

The majority says trial courts don’t have to follow the FCC’s definition of what counts as a fax under this law

REICHARD: Next: a 7–2 decision about sentencing limits for people on supervised release.

Edgardo Estaras had served time for heroin possession. While out on release, he fired a gun during a domestic dispute. The judge gave him more time—citing the need to “promote respect for the law.”

EICHER: But the Court said no. Judges can’t use that as a sentencing factor. The law lays out what they can consider, and promoting respect is not one of them.

Justice Sotomayor said as much during oral argument:

SOTOMAYOR: What you are basically saying is you can use anything you want, District Court Judge; you just can’t use it for this purpose.

REICHARD: Next, a loss for disabled workers who retire early.

Karyn Stanley fought fires in Florida for 19 years. Parkinson’s forced her to retire early. She thought she’d keep health insurance coverage until age 65—but a policy change meant it would end after just two years.

She hadn’t known that. So she sued, claiming disability discrimination under the Americans with Disabilities Act.

EICHER: But the Court ruled 7–2 against her. The ADA doesn’t cover retirees—only “qualified” individuals. And the Court said she no longer qualified.

So she loses about $1,000 per month in health benefits.

REICHARD: And finally today, a unanimous decision that closes American courts to terror victims seeking justice from foreign entities.

Ari Fuld was an American-Israeli stabbed to death in the West Bank. His family sued the PLO under an U.S. anti-terror law.

But the court said not so fast. PLO’s lawyer Mitchell Berger had the winning argument back in April.

BERGER: Nobody likes pirates, right? Pirates have been bad from the founding. Nobody ever thought that even though piracy is a crime against humanity or it's a crime that fits in the Define and Punish Clause, that, certainly, the United States can define piracy as an offense, but the United States does not try pirates in absentia…

EICHER: Same goes for foreign terror groups: No U.S. trial with no U.S. ties.

REICHARD: And that’s this week’s Legal Docket!

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.