The Supreme Court’s conservative majority expressed skepticism about a challenge to Tennessee’s ban on gender-affirming medical care for transgender youth during oral arguments on Wednesday, in what experts say is the most important transgender rights case the court has ever heard.
The case will determine whether a Tennessee law that bans gender-affirming care for transgender youth violates the Constitution and is a form of sex-based discrimination. U.S. v. Skrmetti, which was first brought by three families of trans children and a Memphis-based doctor, challenges Tennessee’s Senate Bill 1, a state law barring certain young people from receiving medications like puberty blockers or hormone replacement therapy. The law is meant to encourage minors to “appreciate their sex” and prohibits doctors from prescribing these medications in order to help them live as an “identity inconsistent with [their] sex.”
Elizabeth Prelogar, the United States solicitor general, argued that the law violates the equal protection clause of the Fourteenth Amendment because it bars trans youth from taking puberty blockers while allowing cisgender youth to take the same medications to treat different conditions, such as early puberty. (The scope of the case is limited to medication treatments, not surgery.)
“The law restricts medical care only when it induces physical effects inconsistent with birth sex. Someone assigned female at birth can’t receive medication to live as a male but someone assigned male can,” Prelogar said. “That’s a facial sex-classification — full stop — and a law like that can’t stand on bare rationality.”
The United States, which argued on behalf of the trans youth and their families, is hoping that the highest court rules to send the case back down to the 6th U.S. Circuit Court of Appeals with an instruction to apply “heightened scrutiny” — the highest legal standard, often used in civil rights cases. Such a move would force Tennessee to provide evidence as to why it has a compelling interest in upholding this law, posing another hurdle to its enforcement.
Meanwhile, Matthew Rice, Tennessee’s solicitor general, who argued on behalf of the state, repeatedly held that the law does not classify people on the basis of sex and rather sets age- and purpose-based limits on the treatments.
Rice pointed to junk science and outdated studies, stating that the treatments cause “irreversible harm” to children. He also argued that the plaintiffs’ argument was a “request to engage in the substantive right to nonconforming behavior.”
But such gender-nonconforming behavior — like a woman wearing more traditionally masculine clothing, for example — is already legally protected, including by sex-based discrimination laws.
At another point, Justice Ketanji Brown Jackson asked Rice if a boy who wanted to take testosterone to “affirm his masculinity” could do so under this law. Rice eventually agreed that the boy could take such medication — but a “girl” who wanted the same treatment for the same goal could not do so under the law.
The case made its way to the Supreme Court this winter after the American Civil Liberties Union, the LGBTQ+ group Lambda Legal and the Department of Justice petitioned the high court to provide clarification on the case. Last year, the 6th Circuit overturned a district court’s initial injunction of the law — a decision pattern that has played out across the country, as families of trans youth have attempted to block other gender health care bans and related anti-trans policies from going into effect.
They fear that if the high court sides with Tennessee, and asks the state to use only a “rational” basis review, the lowest tier of scrutiny mainly relegated to economic relegations, this decision could open the door to a whole host of other discrimination-related issues. In addition, this would allow other state bans across 26 states, some of which are tied up with legal challenges, to go into effect.
“The next step for the state of Tennessee and other states would be to seek to ban adult care if the court doesn’t apply heightened scrutiny,” Sasha Buchert, a senior attorney at Lambda Legal, told HuffPost last week. “It would be weaponized by those states and could be a broader standard, even just lowering the level of protections trans people enjoy more broadly.”
There is reason to believe that the court could soon give its stamp of approval for these kinds of broad health care restrictions — potentially including some broad enough to affect cisgender women, as well.
The conservative justices repeatedly made the case throughout the two and a half hours of arguments Wednesday that judges should defer to state legislatures on “complicated medical decisions.”
Justice Brett Kavanaugh asked if it was best to leave the issue up to the “democratic process,” seemingly suggesting that the issue should be determined by state law — as is now the case with reproductive health care, after the court upended federal abortion protections.
Chief Justice John Roberts suggested that the government should be given the authority to allow the law to single out minors in the context of medical decisions.
“It is something where we are extraordinarily bereft of expertise,” Roberts said in reference to gender-affirming care for minors, which a broad consensus of U.S. medical establishments agrees is medically necessary.
Jackson joked that she was “suddenly quite worried” that her conservative colleagues’ line of questioning could signal the court’s desire to take an axe to “bedrock” principles in the United States’ anti-discrimination laws.
She went on to compare Tennessee’s argument in favor of upholding its ban on transition care to Virginia’s defense of its ban on interracial marriage in the 1967 landmark case Loving v. Virginia, in which the Court determined such bans were unconstitutional because they discriminated on the basis of race.
During Prelogar’s argument, Justice Amy Coney Barrett asked if there was a “history of de jure discrimination against transgender people.” The phrase de jure here means federally mandated, explicit discrimination — for example, laws that specify policies based on race or sex — rather than de facto discrimination, where the effect of a policy is discriminatory, but it isn’t necessarily written that way.
ACLU attorney Chase Strangio, the first trans person to argue before the Supreme Court, addressed Barrett’s question.
“Transgender people are characterized as having a different gender identity than their birth sex. That is distinguishing,” Strangio said. “I would also point, if I could, to the history of discrimination — and there are many examples — of in-law discrimination, exclusions from the military, criminal bans on cross-dressing and others.”
Over the last three years, the tidal wave of anti-trans legislation pushed by Republican lawmakers has created a climate in which transgender people — youth and adults — have been barred from participating on sports teams or using public facilities that align with their gender identity; updating their driver’s licenses and birth certificates with the correct information; and accessing crucial medical care.
Today, more than 90% of trans teenagers live in states that have passed laws targeting transgender people in some way and an estimated 113,900 trans youth live in states that have restricted their health care, according to the Williams Institute at the University of California, Los Angeles School of Law.
“There is a significant challenge for transgender people to protect themselves in the political process, when you do have laws excluding transgender people from places where they need to go in all aspects of life, and there is a difficulty in that type of majoritarian protection,” Strangio said.
The Supreme Court will likely not hand down an opinion on Skrmetti until June 2025 — and until then, Tennessee’s ban will be allowed to stand, forcing trans youth and their families to continue traveling out of state to receive care or pause their transition in the meantime. Many trans youth and adults worry as well about what the incoming administration might do to further curtail trans rights, as President-elect Donald Trump has promised to “stop” gender-affirming care for minors nationwide and to ban trans women from sports.
Outside the courthouse, hundreds of people stood in freezing temperatures for hours to show their support for trans youth, holding signs and waving flags with messages on them, while a smaller group of anti-trans organizers gathered in opposition.
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Kristine, a 59-year-old trans woman, traveled from Delaware for the rally. She said that she told her parents in fifth grade that she was a girl and her parents responded by sending her to a doctor to examine her head.
“I was a trans youth,” said Kristine, who asked to be identified by her first name only. “But I didn’t transition until I was in my 50s.”
Asked how it felt to see so many young transgender people at Wednesday’s rally, living openly and demanding their rights be protected, Kristine said it was heartening.
Efforts to make trans people disappear just “didn’t work,” she said.
Jennifer Bendery contributed to this report.