On June 18, the Supreme Court made clear that it wants no part of the transgender debate — and, in attempting to avoid a decision, made a mess of more than one area of law. Faced with a challenge to Tennessee’s S.B. 1, which bans minors from receiving treatments such as puberty blockers and hormone therapy for gender dysphoria, the justices declared that it wasn’t their call.

The key issue before the Court in United States v. Skrmetti was whether Tennessee’s law should face heightened scrutiny under the Equal Protection Clause — a category that has several levels but has been used largely to review classifications deemed “suspect” or “quasi-suspect,” usually minorities who’ve been subjected to discrimination.

Writing for the majority, Chief Justice John Roberts concluded that the statute need only satisfy “rational basis” scrutiny, the easiest form for the state to meet. But the court didn’t rule that discrimination against transgender individuals shouldn’t receive special scrutiny. Rather, Roberts wrote, the issue wasn’t even presented, because the Tennessee law does not distinguish on the basis of whether one is transgender:

SB1 does not exclude any individual from medical treatments on the basis of transgender status but rather removes one set of diagnoses — gender dysphoria, gender identity disorder, and gender incongruence — from the range of treatable conditions.

To the bystander this distinction might sound quite sensible. But if you’re on the side of trans rights, the language must seem Orwellian. Roberts’s point is that the prohibition does not target transgender minors because not all transgender minors seek the treatments in question. Technically correct! But let’s not pretend that S.B. 1 doesn’t hit with special force those who do.

As to why rational basis scrutiny was satisfied, the majority pointed to the ongoing debate among medical professionals about whether puberty blockers and hormones are appropriate for minors, and whether, in many cases, these treatments do more harm than good. That controversy, wrote the Chief Justice, is not one that courts should resolve. The only question was whether the statute violates the Equal Protection Clause:

Having concluded that it does not, we leave questions regarding its policy to the people, their elected representatives, and the democratic process.

But beneath the high-sounding pro-democracy language of the majority, a culture war is brewing on the Court itself. Let’s compare two separate opinions. Here is Justice Sonia Sotomayor, in dissent:

When provided in appropriate cases, gender-affirming medical care can meaningfully improve the health and well-being of transgender adolescents, reducing anxiety, depression, suicidal ideation, and (for some patients) the need for more invasive surgical treatments later in life. That is why the American Academy of Pediatrics, American Medical Association, American Psychiatric Association, American Psychological Association, and American Academy of Child Adolescent Psychiatry all agree that hormones and puberty blockers are ‘appropriate and medically necessary’ to treat gender dysphoria when clinically indicated.

And here’s Justice Clarence Thomas, in concurrence:

(W)hether “major medical organizations” agree with the result of Tennessee’s democratic process is irrelevant.... To hold otherwise would permit elite sentiment to distort and stifle democratic debate under the guise of scientific judgment, and would reduce judges to mere “spectators ... in construing our Constitution.”

“Elite sentiment”! No wonder the majority would rather treat the issue as a judicially untouchable third rail.

Maybe the majority has the matter right. Maybe the legislature and not the courts should be weighing the evidence. But although the Court insists that it need not decide whether transgender individuals are a quasi-suspect class, Justice Sotomayor nicely lays out the painful history of official and unofficial antagonism they have faced. And antagonism continues today. For example, whatever one’s view on the contentious issue of integrating transgender athletes into high school and college sports, Justice Sotomayor argues that the current policy of “expelling transgender service members from the military” lacks a justification other than discrimination. (When that one finally reaches the Supreme Court, the justices will have to take a stand on the suspect/non-suspect issue.)

Here’s another problem: The justices on both sides appear not to have considered the case from the perspective of parental rights. Yet the issue is highly relevant. The three minors who sued were all joined by their parents, who wanted their minor children to receive the treatment the state forbids. In other words, although the Supreme Court treated the question as one involving the degree of deference to be granted to the state legislature’s judgment, one might reasonably argue that the more important question is the degree of deference to be granted to parental judgments.

Maybe the parents have been bamboozled by the “elite sentiment” that troubles Justice Thomas. Maybe they’re no better than their kids at working out the long-term implications of puberty blockers and hormone treatments. But for those of us who, in general, trust mothers and fathers to know better than the government what’s best for their particular children, the fact that the court didn’t discuss the issue is troubling.

Given all these omissions, the simplest result, as so often, would have been to listen to the wisdom of Justice Kagan, who agreed with Justice Sotomayor that the legislation should have been subjected to heightened Equal Protection scrutiny but expressed no view on what the outcome of that scrutiny would have been. Maybe S.B. 1 would survive; maybe not. But had the court followed Kagan’s advice and sent the case back to the lower courts, a more complete factual record could have been built on which the issue could have been sensibly decided.

Instead, the majority has left us with the conclusion that the ideal solution should be found through serious democratic debate. That lovely, magical dream would require that our public fora are sufficiently serious; and that we ourselves are truly committed to the principles of democracy — and, of course, that we’re good at debate.

If only.

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This column reflects the personal views of the author and does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Stephen L. Carter is a Bloomberg Opinion columnist, a professor of law at Yale University and author of “Invisible: The Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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