Scopes, Skrmetti, & Justice Sotomayor

Justice Sonia Sotomayor schools the lesser lawyers on the Supreme Court on the meaning of the Constitution, and the essence of humanity.

(United States Supreme Court Justice Sonia Sotomayor, photo from the New York Times).

One hundred years ago, the State of Tennessee was the site of perhaps the first big legal battle of the culture wars in the United States following the Civil War. Accordingly, it was no surprise that it was Tennessee again earlier this month, a century later, where religious fundamentalism flared up to set fire to individual rights once again, in the Supreme Court case of United States v. Skrmetti.

In March,1925, the Tennessee State Legislature, dominated by religious fundamentalists, passed the Butler Act, which made it illegal to teach scientific evolution in the State’s public schools, or any theory of evolution that denied “the Biblical account of creation.” Tennessee’s became the first law in the nation’s history to ban the teaching of science-based evolution.

Then, it was a 24-year old High School football coach, John Scopes, who also taught Math, General Science and Biology in the Rhea County High School, who ran smack into the law’s prohibitions on what he could teach, by introducing the concepts of scientific evolution in his high school biology class. Scopes was immediately fired, and the American Civil Liberties Union (ACLU) took up the case of what became known as “The Scopes Monkey Trial,” in the small Tennessee town of Dayton.

The trial ran for 11-days, from July 10, 1925, with the legendary defense attorney Clarence Darrow, representing John Scopes, and three-time Presidential Candidate William Jennings Bryan prosecuting for the State of Tennessee. The first trial to be broadcast nationwide on the new medium of radio, the Scopes trial riveted the country’s attention, becoming a symbol of cultural conflict between contemporary scientific teachings, and religious fundamentalism. The ACLU’s position on the case was that the Butler Act violated both Academic Freedom and the First Amendment’s prohibition against the Establishment of Religion.

Despite Darrow’s brilliant dismantling of Bryan’s strictly religious arguments (depicted some 35 years later by the actor Spencer Tracy in the film version of the play Inherit the Wind), Scopes was found guilty of violating Tennessee’s Butler Act and fined $100. Two years later, that verdict was overturned on a technicality involving the fine, but the statute’s prohibition against teaching evolution remained. It would not be declared unconstitutional—along with other laws like it across the country—for another 40 years, when, in 1968, the U.S. Supreme Court overturned a similar law in Epperson V. Arkansas, on First Amendment grounds—the same basis on which the Tennessee law was challenged in 1925.

Fast forward to the State of Tennessee in 2025, when despite remarkable gains in medical science, scientific knowledge and human and civil rights, religious fundamentalists—now in control of the U.S. Supreme Court and the Executive Branch of the federal government-- have seized on a new, human target to tar and feather: children, who have questions about sex and gender, and are seeking either medical or mental healthcare.

Astonishingly, despite the passage of nearly 100 years of time, Tennessee passed a new law in 2023, entitled: “Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity,” or Tennessee Senate Bill SB1. The law explicitly “prohibits healthcare providers from prescribing, administering or dispensing puberty blockers or hormones to any minor for the purpose of (1) enabling the minor to identify with, or live as, a purported identity inconsistent with the minor’s biological sex, or (2) treating purported discomfort or distress from a discordance between the minor’s biological sex and asserted identity.” United States v. Skrmetti.

At the same time, and by the US Supreme Court’s own statement of the case in Skrmetti, Tennessee’s SB 1 “permits a healthcare provider to administer puberty blockers or hormones to treat a minor’s congenital defect, precocious puberty, disease or physical injury.” That explicit permission to other children of the same or different sexes presenting other reasons for such healthcare procedures is a flashing red-light of discrimination meriting “intermediate scrutiny” to Supreme Court Justice Sonia Sotomayor. Justice Sotomayor points out in her brilliant, blistering dissent from the Court’s 6-3 decision upholding the Tennessee statute, that :

“Sex and diagnosis may both be in play. As long as sex is one of the law’s distinguishing features, however, the law classifies on the basis of sex, and the Equal Protection Clause requires application of intermediate scrutiny.” (P. 20, Sotomayor dissent).

The Tennessee anti-transgender children’s law did not materialize overnight. In fact it’s language—and that of similar laws in more than two dozen other states—was virtually ripped out of the pages of Project 2025, a 920-page religious fundamentalist blueprint being followed by the Trump Administration to deny legal and human rights to LGBTQ+ individuals.

In the opening pages of Project 2025: Mandate for Leadership, subheaded “Promise#1: Restore the Family as the Centerpiece of American Life and Protect Our Children” the key author of the Project, Kevin Roberts of the Heritage Foundation, lays out the underpinnings of the anti-individual rights agenda advanced by the Tennessee statute ( pages 4 & 5, Forward, Project 2025):

“This starts with deleting the terms sexual orientation and gender identity (“SOGI”), diversity, equity, and inclusion(“DEI”), gender, gender equality, gender equity, gender awareness, gender-sensitive, abortion, reproductive health, reproductive rights, and any other term used
to deprive Americans of their First Amendment rights out of every federal rule,
agency regulation, contract, grant, regulation, and piece of legislation that exists.

Pornography, manifested today in the omnipresent propagation of transgender
ideology and sexualization of children, for instance, is not a political Gordian knot
inextricably binding up disparate claims about free speech, property rights, sexual
liberation, and child welfare. It has no claim to First Amendment protection. Its
purveyors are child predators and misogynistic exploiters of women.”

Justice Sotomayor’s 31-page dissent, is free from knee-jerk ideology and trope-laden language which permeates the Majority’s decision written by Chief Justice John Roberts, and the egregiously biased concurring opinions of Justices Clarence Thomas, Samuel Alito, and Amy Coney Barrett. Unlike her far more conservative colleagues on the Court, Sotomayor sticks to the law, and the facts of the case.

Her clear, concise legal arguments fall into two categories:

• A compelling case made for elevating the scrutiny of the claims in the case to the intermediate or heightened level of scrutiny, an important jurisprudential notch above the “rational basis review”, the lowest level of legal scrutiny which the Majority on the Court applied do the case;

• The existence of an unconstitutional sex classification in the law.

Without wasting anytime, Justice Sotomayor immediately reminds the Court that it “has long subjected to heightened scrutiny any law that treats people differently based on sex.” (p. 1, Sotomayor dissent):

“Today, the Court considers a Tennessee Law that categorically prohibits doctors from prescribing certain medications to adolescents if (and only if) they will help a patient ‘identify with, or live as, a purported identity inconsistent with the minor’s sex. In addition to discriminating against transgender adolescents, who, by definition ‘identify with” an identity ‘inconsistent with their sex, that law conditions the availability of medications on a patient’s sex.”

Justice Sotomayor is relentless in reminding the Court of the failure to perform even their most basic duties of scrutinizing such a clearly discriminatory sex-status case at a higher level:

“Tennessee’s law expressly classifies on the basis of sex and transgender status, so the Constitution and settled precedent require the Court to subject it to intermediate scrutiny. The majority contorts logic and precedent to say otherwise…Thus, the majority subjects a law that plainly discriminates on the basis of sex to a mere rational-basis review. By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims.”

Justice Sotomayor’s torrid dissent is a tour-de-force of jurisprudence, the facts, the law, and constitutional precedence, including a decision Justice Neil Gorsuch wrote five years ago in Bostock v. Clayton County, 590 U.S. 644 (2020) which prohibited Title VII employment discrimination on the basis of sex or transgender disrcrimination:

From Bostock: “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Sotomayor noted that Bostock confirmed the classification of “sex” in the Tennessee statute and made it clear that discrimination based on incongruence between sex and gender identity was discrimination “because of sex.” It astounded her that a majority of her colleagues on the Court could so blatantly overturn their own, precisely-on-point legal precedent of only five years earlier, with Gorsuch joining the majority.

Not only did Justice Sotomayor school her fellow Supreme Court justices on the content and meaning of their most recent anti-discrimination decision pertaining to sex and transgender status, but she skillfully used her dissent to educate them about the extraordinarily serious mental health issues that the Court’s Skrmetti decision, ignored, and would make worse:

“Suicide, in particular, is a major concern for parents of transgender teenagers, as the lifetime prevalence of suicide attempts among transgender individuals may be as high as 40%. Tragically, studies suggest that as many as one-third of transgender high school students attempt suicide in any given year.” (Sotomayor dissent, p. 5)

As if to punctuate the callous cruelty of the Supreme Court’s majority decision in Skrmetti, on the very same day the Majority’s Skrmetti screed was released, the Trump Administration announced it was eliminating funding for specialized suicide prevention services on the 988 Suicide and Crisis Lifeline for LGBTQ+ youth.

The National LBGTQ+ Bar Association stripped bare the meaning of those dual, destructive decisions (Skrmetti, and the end of the Suicide hotline for LGBTQ+ youth) the day after they came down, on June 20, 2025: “The message is chillingly clear: our government is willing to let LGBTQ+ people suffer, to let us die, and to harm our community’s children.”

Sonoma County Bar Association’s LGBTQ+ Legal Section Chair and Board of Directors Member Tate Birnie (Birnie Law Office, Sebastopol, California) underscores that warning:

“The ruling sets a dangerous precedent for future actions targeting trans and LGBTQ+ individuals. Skrmetti has intensified the risks faced by transgender, nonbinary, and intersex youth, and anyone who defies societal or state-imposed gender definitions. I see this ruling as both a denial of care, and a fundamental affront to the humanity, autonomy and dignity of trans, nonbinary and intersex people.”

Birnie, a Stanford University Law School graduate, went on to warn that even states like California are not immune from the ban:

“Just this week, Stanford Medicine announced that it had stopped providing gender-affirming surgeries for patients under 19 years old. Similarly, Children’s Hospital in LA—another major provider of medical care for transgender youth in California—has decided to close its’ trans youth program. As a graduate of Stanford Law School, I am dismayed that Stanford has decided to capitulate on this issue, rather than continue to provide safe access to affirming care and recognize the right to bodily autonomy.”

That’s the same powerful message delivered by Justice Sotomayor in her 31-page masterpiece of a factual, jurisprudential and humane dissent in Skrmetti, required reading for every law student in the country and for practicing lawyers in all areas of law:

“…it is difficult to ignore that Tennessee professes concern with protecting the health of minors while categorically banning gender affirming care for even those minors exhibiting the most severe mental health conditions, including suicidality.”

Like the Tennessee Scopes trial 100 years earlier, when the lower court in Tennessee and the local community of religious fundamentalists tried to pretend that the facts in front of their face did not exist, the majority on the U.S. Supreme Court is also opting for an alternative reality, which much higher, more urgent life and death stakes. Justice Sotomayor refuses to permit them to look the other way, as the closing paragraph in her dissent to Skrmetti declares:

“This case presents an easy question: whether SB1’s (Tennessee’s) ban on certain medications, applicable only if used in a manner ‘inconsistent with…sex,” contains a sex classification. Because sex determines access to the covered medications, it clearly does. Yet, the Majority refuses to call a spade a spade. Instead, it obfuscates a sex classification that is plain on the face of this statute…The Court’s willingness to do so here does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight.

“It also authorizes, without second thought, untold harm to transgender children and the parents and families who love them. Because there is no constitutional justification for that result, I dissent.”

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By Steve Villano, Executive Director, Sonoma County Bar Association (the opinions expressed in this article are the author’s; the facts, are all verifiable, by citation.)

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