On June 18, 2025, the Supreme Court issued its opinion in United States v. Skrmetti, a blockbuster case addressing whether Tennessee’s ban on medical care for minors experiencing gender dysphoria violated the Equal Protection Clause. The Court decided that it did not, holding that the ban was not a sex-based classification and not subject to heightened scrutiny.
Of interest to the employment law bar is the Court’s refusal to address whether its 2020 Bostock decision applied here. In Bostock, the Court held that employers who fire employees at least in part because they are gay or transgender violate Title VII, a federal employment discrimination statute. The Bostock Court stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Bostock v. Clayton County, Georgia, 590 U.S. 644, 660 (2020).
Instead, the Skrmetti majority relied on Geduldig, which is puzzling and problematic for the employment law bar. This over fifty-year-old case held that pregnancy discrimination was not discrimination on the basis of sex. Geduldig v. Aiello, 417 U.S. 484 (1974). The Skrmetti majority favorably cited Geduldig for the proposition that a California insurance program that excluded coverage for “certain disabilities resulting from pregnancy did not discriminate on the basis of sex,” because “the program did not exclude any individual from benefit eligibility because of the individual’s sex but rather ‘remove[d] one physical condition—pregnancy—from the list of compensable disabilities.’” United States v. Skrmetti, 145 S. Ct. 1816, 1833 (2025) (quoting Geduldig, 417 U.S. at 496 n. 20). Congress overturned the Geduldig decision only four years later in 1978 when it designated pregnancy discrimination as a form of sex discrimination.
In Skrmetti, the majority returned to Geduldig, explaining that the Supreme Court had already held that a State would not trigger heightened scrutiny by regulating a sex-specific medical procedure unless “the regulation is a mere pretext for invidious sex discrimination.” Skrmetti, 145 S. Ct. at 1833. The majority asserted that, as in Geduldig, what was at issue here was a “class of treatments or conditions” and not “a class of persons identified on the basis” of their transgender status. Skrmetti, 145 S. Ct. at 1834 n. 3.
Justice Sotomayor, in her Skrmetti dissent, stated that Geduldig was “widely rejected as indefensible even 40 years ago,” and that the majority’s reliance on it here “obfuscates a sex classification that is plain on the face of this statute,” which “does irrevocable damage to the Equal Protection Clause and invites legislatures to engage in discrimination by hiding blatant sex classifications in plain sight.” Skrmetti, 145 S. Ct. at 1880, 1884 (Sotomayor, J., dissenting).
The resurrection of Geduldig by the current Supreme Court’s conservative majority, and the downplaying of Bostock, is worth the employment bar’s attention, as it may indicate yet another change in how the Supreme Court treats discrimination claims.