Abstract
Excerpted From: Govind Persad, Against a Medical Exception to Equal Protection, 83 Washington and Lee Law Review 335 (Spring 2026) (345 Footnotes) (Full Document)
For at least thirty years, the Supreme Court has asserted that heightened scrutiny applies to all governmental decisions based on someone's membership in a protected class, like race or sex. To satisfy heightened scrutiny, the decisionmaker must demonstrate that considering protected class identity is closely linked to achieving an important goal. No context is exempt from heightened scrutiny. These cases contain no medical exception.
Then, in 2025, the Supreme Court upheld Tennessee's SB in United States v. Skrmetti. SB barred minors' access to medical treatments that enable them "to identify with, or live as, a purported identity inconsistent with the minor's sex," or that treat "purported discomfort or distress from a discordance between the minor's sex and asserted identity."4 It did so in order to "'protect minors from physical and emotional harm' by 'encouraging minors to appreciate,' rather than 'become disdainful of,' their sex."5 Despite SB1's facial and obvious sex-based treatment of patients, the Court held that SB did not classify patients by sex and so did not trigger heightened scrutiny.
The Court in Skrmetti also made another suggestion: that medical contexts are particularly inappropriate for heightened scrutiny. In so doing, the Court reawakened the possibility of an equal protection medical exception. Such an exception would excuse medical decisions from ordinary equal protection review, even decisions that consider protected class membership. This Article discusses the history, potential future, and merits of a medical exception to equal protection, as well as how such an exception could be limited or resisted.
Part I of this Article describes how an equal protection medical exception would fit with existing precedent. Medical exceptions have been consistently rejected, and exceptions to heightened scrutiny when suspect classifications are used in nonmedical contexts have also narrowed over time. Part II analyzes the Court's discussion of medical exceptionalism in Skrmetti and its broader implications for patients. Part III evaluates the normative case for an equal protection medical exception and finds it wanting. Heightened scrutiny should apply when medical decisions are based on protected class membership. Part IV considers potential avenues for constraining the growth of a medical exception. These include reversing Skrmetti in toto or emphasizing that its holding did not create an exception; cabining any exception to the Equal Protection Clause rather than statutes; and turning to state law as an alternative source of protection.
Skrmetti's substantive limits on the rights of transgender minors will prompt important responses from scholars of transgender rights, just as earlier appellate decisions already have. That task is essential and urgent. This Article's focus is different. Rather than emphasizing the case's implications for transgender rights, it examines what the Court's statements may mean for the legal regulation of medicine more broadly. Reinvigorating an equal protection medical exception would have implications stretching far beyond Skrmetti's specific context. This Article is the first to investigate this aspect of Skrmetti. More importantly, it is the first to trace the history of a medical exception to equal protection; to assess the normative merits of such an exception; and to delineate strategies for response.
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The Skrmetti decision represents a flawed new branch of the Supreme Court's equal protection jurisprudence. Much discussion of Skrmetti's flaws will focus on its rollback of transgender minors' rights to access medical treatment. But language in the Court's opinion has insalubrious potential for all patients' rights to equal protection. A "medical-context-only exception"345 would indeed run counter to the main body of equal protection jurisprudence. This Article has explained how medical exceptions to equal protection have historically been invoked and rejected, why such exceptions are a bad idea, and how they can be reversed or resisted. Equal protection should admit no medical exception.
Associate Professor, University of Colorado Law School. J.D., PhD, Stanford.
