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The Supreme Court on Wednesday upheld Tennessee’s ban on gender-affirming care for transgender youth in a major setback for the transgender community.

But Justice Amy Coney Barrett, who fully joined the majority in its 6-3 decision in United States v. Skrmetti, wrote a separate concurring opinion suggesting the ruling does not go far enough.

In the opinion, joined by Justice Clarence Thomas, Barrett argued that laws classifying people based on transgender status do not trigger heightened scrutiny by the courts.

Legal experts say that if a majority of the court adopts her reasoning for that argument, it could further erode transgender rights.

Amy Coney Barrett meets with U.S. Sen. James Lankford on October 21, 2020 in Washington, D.C. Amy Coney Barrett meets with U.S. Sen. James Lankford on October 21, 2020 in Washington, D.C. Sarah Silbiger/Pool-Getty Images

Why It Matters

Barrett’s opinion may come as a surprise to those who have hailed her as a centrist.

Appointed to the court by President Donald Trump in 2020, she has routinely voted with her conservative colleagues, including in the decision to overturn Roe v. Wade in 2022. The New York Times recently said Barrett “is showing signs of leftward drift,” and noted that she is the Republican-appointed justice most likely to be in the majority of decisions that reach a liberal outcome.

And her siding with liberal justices and ruling against the Trump administration in some recent cases has led to anger from Trump supporters, with some accusing her of being “a radical liberal.” But some experts say it’s a mistake to believe she is shifting to the left.

What To Know

The court’s majority opinion upheld Tennessee’s ban on the grounds that the law’s restrictions on treating minors for gender dysphoria turn on age and medical use, not sex.

But Chief Justice John Roberts’ 24-page majority opinion did not decide whether transgender status is a “suspect class” or “quasi-suspect class” under the Equal Protection Clause.

Barrett argued in her concurring opinion that transgender status does not constitute a “suspect class” entitled to stronger legal protections. Justice Samuel Alito wrote a separate concurring opinion, in which he also said he does not believe transgender status qualifies as a suspect or quasi-suspect class.

Barrett argued that the test to determine whether members of a group is a suspect class is “strict,” including considering whether members of the group exhibit “immutable or distinguishing characteristics,” whether the group has historically been subject to discrimination and whether it is “a minority or politically powerless.”

“Transgender status is not marked by the same sort of “‘obvious, immutable, or distinguishing characteristics'” as race or sex,” she wrote.

“The plaintiffs here, for instance, began to experience gender dysphoria at varying ages—some from a young age, others not until the onset of puberty. Meanwhile, the plaintiffs acknowledge that some transgender individuals ‘detransition’ later in life—in other words, they begin to identify again with the gender that corresponds to their biological sex.”

She wrote that “a history of private discrimination” against transgender people is not enough because what is relevant is a history of “de jure” discrimination, that is, discrimination enforced by law or official policy.

In a dissent, Justice Sonia Sotomayor wrote that transgender people “have long been subject to discrimination in health care, employment, and housing, and to rampant harassment and physical violence.” She added that they have also “been subject to a lengthy history of de jure discrimination in the form of cross-dressing bans, police brutality, and anti-sodomy laws.”

Barrett also argued that recognizing transgender people as a suspect class “would require courts to oversee all manner of policy choices normally committed to legislative discretion.”

It also implicates “several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams. If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of ‘closely scrutiniz[ing] legislative choices’ in all these domains.”

What People Are Saying

Jonathan Turley, a conservative legal analyst and professor at George Washington University’s law school, told Newsweek: “I honestly do not believe that Justice Barrett is influenced by public criticism. As a lawyer, academic, and jurist, she has always spoken clearly in her own voice. Her jurisprudential foundations run very deep after years of thinking and writing about the law. Most justices are far more concerned about their legacy than their popularity in rendering opinions.”

Turley also wrote on X: “The transgender community can scratch off Barrett on their possible allies in some of the pending cases in lower courts.”

MSNBC legal commentator Jordan Rubin wrote in a blog post: “While the question of what general legal protections transgender people have wasn’t the main issue in the Skrmetti case, at least three justices appear prepared to rule against them on that broader question, which could make it even more challenging for them to press legal claims in all sorts of cases going forward.”

Slate journalist Mark Joseph Stern said: “This is a really atrocious concurrence. It’s totally gratuitous, and I struggle to understand why she wrote it except to further prevent transgender people in this country from ever winning in a court.”

Stern added that Barrett, along with Justices Thomas and Samuel Alito, “wanted to say, clearly, that the Constitution does not protect transgender people from overt, invidious discrimination. They didn’t win today. But they may win in the next case.”

What’s Next

The decision in United States v. Skrmetti is one of the most significant rulings about transgender people to come from the Supreme Court.

While the court did not rule on whether laws that classify on the basis of transgender status are subject to heightened scrutiny, that could be a question that the court addresses in the future—and Barrett has made clear in her concurring opinion how she would vote.