What is the Skrmetti Supreme Court case?

In today’s episode, we dive into the Skrmetti Supreme Court case talking about parental rights at the Supreme Court, unpacking what it’s about, why it matters, and how it could impact the legal landscape moving forward.

As Christians, we know that God’s design for raising children is in the context of a home with a loving father and mother—and he gave parents the responsibility to raise their children in accordance with His Word. This may seem obvious, but our society is increasingly pushing back against God’s design by undermining “parental rights.” While in a fallen world parents don’t always seek what is best for their children and should be held accountable by God-given authorities, in most cases, moms and dads should be able raise their children according to their deeply held beliefs, ensuring their children are protected from things like the harmful effects of radical ideas about gender and sexuality.

Why and how are parental rights being brought up in the United States v. Skrmetti Supreme Court Case?

In June, the United States Supreme Court announced it would hear the case of United States v. Skrmetti, a lawsuit joined by the Biden administration against a Tennessee law prohibiting all medical procedures intended to “affirm” a gender inconsistent with a minor’s biological sex. The law provides necessary protection to children under the age of 18 from harmful and dangerous “gender transition” medical procedures like hormone therapy, puberty blockers, and surgery that carry devastating, lifelong consequences. 

On today’s episode, you’ll hear from two lawyers—Matt Sharp and Kayla Toney—who are well acquainted with these legal challenges and how they are related to radical gender ideology.

Matt Sharp serves as senior counsel with Alliance Defending Freedom, where he is the director of the Center for Public Policy. In this role, he leads ADF’s team of policy experts as they craft legislation and advise government officials on policies that promote free speech, religious freedom, parental rights, and the sanctity of human life.

Sharp has also worked on important cases advancing religious freedom and free speech. He earned his J.D. in 2006 from the Vanderbilt University School of Law. A member of the bar in Georgia and Tennessee, he is also admitted to practice in several federal courts.

Kayla Toney is Associate Counsel with First Liberty Institute, concentrating on religious liberty matters and First Amendment rights for clients of all faiths. Prior to joining First Liberty, Kayla litigated religious freedom cases as a Constitutional Law Fellow at the Becket Fund for Religious Liberty. She clerked for Judge Gregory E. Maggs on the U.S. Court of Appeals for the Armed Forces. Kayla also worked as a litigation associate.

Kayla earned her law degree from George Washington University. A native of Michigan, Kayla is based in First Liberty’s Washington, D.C. office and is licensed to practice law in Virginia and D.C.

Learn more by reading the ERLC Explainer on United States v. Skrmetti.

Episode Transcript: What is the Skrmetti Supreme Court case?

Lindsay Nicolet

Welcome to The ERLC Podcast, where our goal is to help you think biblically about today’s cultural issues. I’m Lindsay Nicolet, and today we’re talking about parental rights at the Supreme Court.

As Christians, we know and believe that God’s design for raising children is in the context of a home with a loving father and mother, and that he gave parents the responsibility to raise their children in accordance with his Word. This may seem obvious, but our society is increasingly pushing back against God’s design by undermining parental rights. While in a fallen world, parents don’t always seek what is best for their children and should be held accountable by God given authorities. In most cases, moms and dads should be able to raise their children according to their deeply held beliefs, ensuring their children are protected from things like the harmful effects of radical ideas about gender and sexuality.

So why and how are parental rights being brought up at the Supreme Court this term in a case titled United States v.Skrmetti? On today’s episode, you’ll hear from two lawyers, Matt Sharpe and Kayla Toney, who are well acquainted with these legal challenges and how they’re related to radical gender ideology. Matt Sharpe serves as senior counsel with Alliance Defending Freedom, where he’s the director of the Center for Public Policy. In this role, he leads ADF’s team of policy experts as they craft legislation and advise government officials on policies that promote free speech, religious freedom, parental rights, and the sanctity of human life. Sharp has also worked on important cases, advancing religious freedom and free speech. He earned his JD in 2006 from the Vanderbilt University School of Law, a member of the bar in Georgia and Tennessee. He’s also admitted to practice in several federal courts.

Kayla Toney is associate counsel with First Liberty Institute, concentrating on religious liberty matters and First Amendment rights for clients of all faiths. Prior to joining First Liberty, Kayla litigated religious freedom cases as a constitutional law fellow at the Beckett Fund for Religious Liberty, she clerked for Judge Gregory e Mags on the U.S. Court of Appeals for the Armed Forces. Kayla also worked as a litigation associate. She earned her law degree from George Washington University. A native of Michigan., Kayla is based in first Liberty’s Washington, D.C., office and is licensed to practice law in Virginia and D.C.

Every year, the ERLC is actively watching and advocating in Supreme Court cases that affect issues Southern Baptists care about. This year, a key case out of Tennessee is being argued before the court on Dece. 4. Here are Matt Sharp and Kayla Toney to discuss the case United States v. Skrmetti.

Matt Sharp

The Skrmetti case involves a Tennessee law that protects children from dangerous gender transition drugs and surgeries. There was evidence that clinics in Tennessee were pushing these puberty blockers, these cross-sex hormones, these sterilizing surgeries on children and the Tennessee lawmaker stepped in to say, we don’t think doctors or clinics in our state should be exposing our kids to these dangerous things. Well, shortly after the law was passed, we saw legal challenges suing the state of Tennessee, arguing that these efforts to protect children from gender transition drugs and surgeries violated the Constitution. But that’s simply false. From the very beginning, Tennessee has been regulating specific medical procedures and doing it based on age, and this is something that states do all the time. Just think about things like driver’s license. We don’t let people drive based on their age. Even things like getting a tattoo or using tobacco or alcohol, we’ve always regulated based on age, and that’s what Tennessee is doing here. They’re taking certain substances, certain procedures that they know are harmful and dangerous for kids and saying, we don’t think they ought to be lawful for children.

In the state of Tennessee, there were 33 amicus briefs filed on the side of the transgender lobby, and there were 50 briefs filed on the side of Tennessee from a very wide group. And then you had, you know, many different faith traditions, including the Southern Baptist I saw filed a brief as well. And that matters to courts when they see there’s a broad consensus coming from a lot of different voices that usually disagree about a lot of very important things, but they’re right now, they’re all agreeing that this is an area that needs to be protected. And that’s really significant.

Lindsay Nicolet

Though the Supreme Court might feel removed from our everyday lives cases like Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, remind us that many court decisions have a direct effect on our well-being. Likewise, Skrmetti is an important case with implications that every Christian parent should care about. Matt points out what’s at stake in this case and what could happen if the court rules against Tennessee.

Matt Sharp

The first thing that at stake is the law of Tennessee and 25 other states that have passed similar laws protecting kids from these gender transition drugs and surgeries. We’ve seen since about 2020, 2021, this mass of states as they’re looking at the evidence, as they’re hearing the voices of de-transition children that were pushed to receive these drugs and surgeries and the damage it did to them, these lawmakers stood up and they said, we wanna protect kids in our state. So an issue is can states pass these laws and enforce these laws to protect kids in their states from these drugs and surgeries? But beyond that, there are even bigger questions of laws recognizing that there’s differences between men and women laws recognizing that we need to protect kids from certain substances. Are those going to be continue to be lawful as well? Or if Tennessee can’t enact these protections, if they can’t recognize that biological sex is something that should not be erased and replaced with gender identity, but it’s, it’s rather a immutable fact of being male or female. So it’s not only the specific laws on the books, but bigger questions about can states recognize that there are differences between men and women, that those matter in things like sports, like medicine and other things to make sure that kids in their states are not being pushed down this dangerous road of gender ideology.

Lindsay Nicolet

Though this case doesn’t specifically deal with religious liberty, which is the freedom to live according to our deeply held beliefs, it demonstrates how this important freedom intersects with parental rights and radical gender ideology. Here’s Matt to explain why they are all connected.

Matt Sharp

When you think of religious liberty, it’s the idea that we are responsible, we are accountable to higher authority, and that that then influences how we act and that the government shouldn’t interfere with how we act, whether it’s how I live my life, how I worship, how I conduct my business. But if I’m doing it consistent with my religious beliefs, the government should stand back. Well think about how that intersects with parental rights because parental rights is sort of that same issue of my ability to raise my children consistent with my religious beliefs, to take them to the church that I want to provide them, even education consistent with that, and that the government shouldn’t interfere with that right of parents to do this. So this idea of religious liberty and parental rights very much go hand in hand. And are these fundamental rights, these rights that we’ve long protected in the law and held to the highest standards, that the government can’t come in and interfere with those or question parent decision making or question my ability to live consistent with my faith?

Matt Sharp

However, we’re seeing this gender ideology really come into conflict with both of those rights as parental rights and these rights of religious liberty. So let’s take religious liberty. We’re seeing time and time again how gender ideology is used to tell people that they have to think differently, speak differently, or act differently. Take for example, what we’re seeing in the case of pronouns. We’ve got cases on behalf of school teachers that believe God created a male and female that believe it would be lying to a student to call a male a female, and yet are being told by school officials that they must do just that, that they must violate their conscience and their beliefs and call a male a female and vice versa in violation of their beliefs. So we’re litigating those cases and thankfully have gotten some great wins, but it just goes to show how this ideology is challenging that.

But we’ve even seen it in the context of religious schools. We’ve got a case in Vermont on behalf of a Christian school there that had, again, the belief that God created us male and female, and yet are being punished by the state because they refused to allow their girls sports teams to compete against teams that have a male on. They think that’s wrong. They think it sends a message that God did not create a male and female, that they’re not differences. And so they’re taking a stand on that. But this just goes to show how that gender ideology could come in and tell religious individuals and even religious organizations that they have to change their beliefs or violate those core convictions about what it means to be male and female. But even more so in the parental rights space is how this ideology is being used to push parents out of the picture.

You got cases going on in Wisconsin, Michigan, and other places where schools are doing these secret transition. This is where a child at school may be questioning their biological sex, and school officials are coming along and actually saying, yeah, we will help you identify as the different sex. We’ll help you pick a different name and pronoun and we’ll actually hide this information from your parents and keep it secret from them so that they have no idea what’s going on at school. For example, the Michigan case I referenced, the school officials were actually on official school documents changing this young girl’s identity, identifying her as a boy using a male name, but then when they would send things home to the parents, they would erase all of that so that the parents had no idea about it. And this was going on for months and months until a teacher slipped up and sent home one of the uncorrected forms that the parents found out. So that’s why this gender ideology is so dangerous. We’re seeing it impact parental rights, free speech, religious liberty. So many of our fundamental rights are being threatened and assaulted by this gender ideology.

Lindsay Nicolet

The radical direction some states in the U.S. are taking with transgender medications and procedures, especially when it comes to minors, is a dangerous one. We only need to look at how our laws compared to other countries, such as those in Europe who have already tried these experiments to see why that’s the case. Matt sheds light on what we can learn from Europe’s decisions.

Matt Sharp

It’s very interesting to watch Europe. They were in many ways, the trailblazers on this issue of gender transition drugs and surgeries decades ago. They started this thing was called the Dutch Protocol, where children that were experiencing this confusion over their biological sex, they said, well, let’s try them on puberty blockers. Let’s just delay them from going through puberty or give them drugs and surgeries that help them to develop characteristics of the opposite sex, and maybe that will help. They were pushing this for decades, and as they were following these children into adulthood, what they were finding was really tragic outcomes. For example, there was a study in Sweden where they were following these adolescents that had been given these drugs and surgeries into adulthood. And rather than solving the issues, the mental health issues, the depression anxiety, it was resulting in much more of it.

In fact, the suicide rates of kids that had been transitioned were 19 times higher than the rest of the population. So in response to all of this, Europe was following the science. They said, we need to protect our kids from this. Let’s stop doing the drugs and surgeries, and maybe let’s go back to counseling. Because what they were finding, if you let a kid experience puberty, naturally, if you give them counseling to actually help them recognize there’s nothing wrong with you, you weren’t born in the wrong body, and the vast majority of these kids upwards to 90% in some studies, would outgrow the confusion and come to find comfort in their biological sex. So at the same time that Europe is reversing course and actually prioritizing good care for kids, the United States is going in the opposite direction in many places. We’ve got places like California, Massachusetts, Minnesota, that are pushing these surgeries and drugs on kids.

We’ve got pharmaceutical companies and gender clinics popping up everywhere, pushing these dangerous substances on kids doing so in the face of all of this science coming out of Europe saying, no, no, no, that’s a dangerous path. We’re not following suit. That’s why Tennessee and the other 25 states passed these laws in the first place. This wasn’t about religion or anything else. This was about good science and doing stuff that actually helps kids, not things that harm them. And we know more and more evidence is mounting every day as there’s better options for our kids. Let’s prioritize counseling and good help for kids, not the drugs and surgeries that can do lifelong irreversible damage to these children.

Lindsay Nicolet

Our country was set up in a way to protect parents’ rights to raise their children according to their sincerely held religious convictions In an age of gender confusion. This right is especially precious to Christian parents who believe God intentionally designed us as male and female. Here are Kayla and Matt with advice on what parents can do to make sure they are faithfully exercising these rights.

Kayla Toney

The first thing is to recognize the rights that we already have. So the first amendment of the US Constitution protects parents’, right to raise their children according to their religious beliefs. And that goes back nearly a hundred years. The Supreme Court held back in 1942 in a case called Wisconsin v Yoder, that parents have the right to direct the religious upbringing of their children, even when it means that their family and their decisions are going to look very different from most people. So that case involved an Amish community where Amish families did not wanna send their children to public school, and the court said, absolutely they have the right to choose other schooling options, whether it’s homeschool or kind of their own model. And that’s because of their faith. And so that same principle, the Supreme Court has reaffirmed really for the past a hundred years, and it’s based on both the First amendment, the free exercise clause, and the 14th amendment, the due process clause.

That’s where we get sort of this idea of parental rights more generally. So it’s really in multiple places in the Constitution, and it’s just important for parents to know the rights they already have because most people don’t. And governments and public schools will tell you, uh, very differently. So that’s the first thing is just knowing your rights. And then the second thing I would say is being as engaged as possible. So obviously, you know, families need to make different decisions for schooling depending on finances, depending on where they live and their family situation. But I would say whatever you end up choosing, make sure to be engaged. Get to know your kids’ teachers, go to those PTA meetings, speaking at school board meetings can be helpful. And reviewing curriculum. So in most states, parents have a right written into the law to review any curriculum that their child is encountering.

You have to sometimes be a little bit assertive to get a chance to review, but that can be incredibly helpful. And if there are schools that are very reticent to the curriculum being reviewed, that should be a warning flag to parents that something’s going on that they might not like. And then the third thing is opt-outs. So 37 states right now have laws requiring opt-outs when material about sexuality is introduced in class. And typically what that looks like is your sex ed unit, which happens now, it’s in fifth grade, it used to be later, but in most schools it’s fifth grade. But that right to opt out extends further in many cases, to any teaching about sexuality. So this is a live issue that we’re actually litigating right now, but it’s certainly a place where parents have a lot of freedom to say, you know, I wanna be notified and I wanna opt out.

If my children are learning about the rainbow unicorn or pronouns or certain books, that is something that schools should accommodate. And if you think about it, schools accommodate opt-outs for lots of different reasons. Anything from, you know, standardized testing to alternative gym class or you know, reading disabilities. I mean, there’s a lot of flexibility that’s built in already. And so in a lot of cases, all parents need to do is take advantage of what’s already there in terms of opt-outs. And then I think the last thing is just having the conversations with your own kids sometimes before you’d prefer to do it. I think the ages tend to get younger and younger when kids are introduced to these topics. But I think just giving them that solid biblical foundation that, you know, God created men and women with a purpose, with a design. We need to embrace what he’s made and honor his creation and to treat our neighbors with love, even if they have a different view.

But also just to have that foundation of truth, I think is so helpful. And I can give you an example of a way that some of our clients are doing this. We have a case about opt-outs right now in California. It’s called the Encinas case. And we are litigating in the southern district of California and federal court, we represent two Christian families whose fifth graders were forced to read a book called My Shadow Is Pink, which is about a little boy questioning his gender identity and saying he wants to wear dresses and be a girl. And the book very clearly promotes this idea. And the fifth graders had to read it with their kindergarten buddies and then do a chalking activity where they had to draw the kindergarten buddies shadow in sidewalk chalk and ask them what color represents them. And this was very concerning to the fifth graders who are both Christians and have a strong sense of, of right and wrong.

So they went home and told their parents, and their parents were obviously very upset. And when they spoke to the school about it and asked to opt out in the future, the school said, absolutely not. And you know, hundreds of parents rallied. They spoke at school board meetings, they tried everything short of litigation and there was no response from the school district. And so we sued. And the legal theory in that case is very much focused on what I talked about in terms of the first amendment, protecting parents’ ability to raise their children. And then opt outs are, you know, widely available for all sorts of other things. Students can opt out of biology class if they don’t wanna dissect an animal because of their ethical beliefs, but they can’t opt out of of gender identity instruction. So that’s a case that we’re working on right now.

We’re watching it closely. We hope that it sets, you know, a helpful precedent for the rest of the country. But in terms of our clients themselves, they have done such a great job of teaching their kids what’s right and wrong. So that when that book came up in fifth grade, those little boys knew, I need to tell my parents about this. This isn’t right. And they have not been, you know, confused by the whole experience. They have been very strong and they wanna stand up for other kids so that other kids don’t have to feel this way. And we think that’s really inspiring.

Matt Sharp

Parents have a powerful role in this debate over gender ideology. There’s no one that’s gonna do a better job protecting a child from this ideology than mom and dad. No one’s gonna love their child better. No one’s gonna be truly unbiased to make sure what’s best for their child. Encourage Christians especially to pray. Pray for the justices as they’re weighing these cases. Pray for those arguing them, and for the countless families that would be impacted by this ruling, protecting kids from gender, ideology, and medicine.

Lindsay Nicolet

As we look ahead, it’s critical to pay attention to other cases and events that are poised to have ramifications related to parental rights and gender ideology. Above all, this knowledge can inform our prayers as we seek to raise our families and disciple believers to live in this world according to God’s Word. Here are Matt and Kayla to update us on a few things they’re closely monitoring.

Matt Sharp

So there’s actually cases that we’ve asked the Supreme Court to review dealing with gender ideology in a couple of different contexts. So two cases, one out of West Virginia and one out of Idaho, where lawmakers, there were passing laws to protect women’s sports to make sure that men cannot compete on women’s teams, take away championships, take away spots on the team. And we’ve seen this necessary because of this gender ideology. We saw it in places like Connecticut where two men competing on women’s high school teams within just a matter of years took 15 championships, broke 16 individual records that previously belonged to young women, and over 80 instances where they took a spot on the podium or took a spot in a tournament away from a deserving young woman. So in response to this, 25 states have passed laws saying our women’s sports teams are reserved for women. So that case is, is sitting at the Supreme Court. We’re hopeful they’re gonna take it up

Kayla Toney

In terms of what’s on the horizon, I think it’s a lot of the things I’ve already alluded to curriculum. We’re seeing a lot of books in elementary school that are focused on diversity and inclusion, which sounds great. And sometimes it is. Sometimes they talk about race and disability in ways that are really helpful. And other times they talk about gender ideology in ways that are really unhelpful. So I think that’s an area to watch pronoun policies. Certainly we’ve helped with some legal challenges to those where Christian or or other religious kids have been forced to use preferred pronouns that don’t match biology and that goes against their faith. And those cases have done well when the students are the ones bringing the claim. I think the harder thing is when the parents bring the claim because they’re not quite as directly affected. So legally that could be a little bit trickier. And then certainly policies about keeping gender transition secret from parents. There’s a policy we’ve seen all over the country getting adopted that it’s just very concerning because it basically prevents teachers from telling parents when their kid is starting a social transition at school. And then the state laws, like I mentioned, they’re all over the map right now in terms of some states are banning gender transition treatments for minors. Other states are threatening custody for parents who don’t wanna affirm a gender transition treatment. So those are just a lot of the different areas

Lindsay Nicolet

Though we should be wise about what’s going on in the communities around us and make the best use of our time because the days are evil, as Ephesians 5:6 tells us we shouldn’t do so in fear, we serve a God, we trust as sovereign over our country, our families, our lives, and our future. Kayla gives us several closing reminders that will help us as we aim to glorify God through the chaos that often characterizes our culture.

Kayla Toney

Going back to scripture is always really helpful. God’s Word sets that plumb line for us. And in every culture, in every time period, there’s going to be areas where the culture is moving in a different direction. And so I think just going back to God’s Word, I do have three scriptures that might be encouraging to share. Folks are are interested. I think about these a lot with the types of cases that I work on. So the first is from Ephesians chapter five. It says, therefore, be imitators of God as beloved children and walk in love as Christ loved us and gave himself up for us a fragrant offering and sacrifice to God. Let no one deceive you with empty words. At one time you were darkness, but now you are light in the Lord. Walk as children of light, for the fruit of light is found in all that is good and right and true.

So I think that idea of, you know, walking in the light, seeking God’s truth and walking in love, I think those are things that are really important. Our clients are often targeted and called hateful because of their religious beliefs. And I think that’s something that we all have to be ready to experience, but we wanna make sure that that’s because we’re identifying with Christ and not because we’re going about things in a brash or unloving way. First Corinthians 6, it talks about how your body is a temple of the Holy Spirit within you, whom you have from God. You are not your own, for you are bought with a price, so glorify God in your body. And I think so much of the struggle, especially for the younger generations right now, is just understanding their own sense of identity. They’re all searching for something that’s more important than themselves.

And the transgender movement just doesn’t offer the hope that kids need. That hope is found in Christ and it’s found in recognizing that each person’s body is a gift and it’s something to protect. The last verse I’ll share is from one Peter chapter three, verses 13 through 16. Now, who is there to harm you if you are zealous for what is good, but even if you should suffer for righteousness sake, you’ll be blessed, have no fear of them nor be troubled, but in your hearts on our Christ, the Lord as holy. Always being prepared to make a defense to anyone who asks you for a reason, for the hope that is in you. Yet do it with gentleness and respect, having a good conscience so that when you are slandered, those who revile your good behavior in Christ may be put to shame, where it is better to suffer for doing good if that should be God’s will. And for doing evil. I just love that passage for so many reasons. But I think in this context it really applies because we have a source of hope in Christ that we’re able to share. But we wanna do it with gentleness and respect, having that clear conscience. And sometimes people will revile us, but when that happens, we can trust that Christ can be glorified.

Lindsay Nicolet

Southern Baptists believe that children are a gift from the Lord and that parents are responsible for raising them in alignment with God’s Word, including in matters of gender and sexuality. This may not always be the opinion of our culture, but we must be grounded in scripture and guided by the Holy Spirit to live on mission for Christ as we navigate the difficult realities of our country. The ERLC remains committed to empowering parents who want to see their children thrive, and pushing back against a culture that exploits children and families so that we can be free to live according to God’s good design. Thanks for listening to the ERLC podcast. Join us next time as we continue our series on marriage and family and talk about the importance of Baptist cooperation.