A conservative U.S. Supreme Court appeared poised Wednesday to side with Tennessee in upholding the state’s ban on gender-conforming care for minors, a case likely to set a precedent for equal protection for transgender children becomes.
The court is not expected to make a decision until June 2025, but Republican-appointed justices Samuel Alito, Clarence Thomas and Brett Kavanaugh gave indications of how they would rule during three hours of oral arguments in Washington, DC
They were countered by the court’s liberal justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson, who are outnumbered 6-3.
Conservative justices seemed suspicious of the creation of a protected class, but Jackson, for example, pointed out that the law clearly provided for discrimination based on gender. Jackson used the case Loving v. Virginia, which allowed racially integrated marriages, to show that similar arguments were made against these types of unions some 50 years ago.
Three families with transgender children and Memphis Dr. Susan Lacy sued the state, then the federal government intervened on behalf of plaintiffs challenging Tennessee’s ban on puberty blockers and hormone therapy to allow minors to undergo sex reassignment surgery.
Thomas, for example, asked the federal government’s lawyer why the case was about age classification and not gender. Alito and Kavanaugh questioned whether the United Kingdom and European countries would withdraw support for gender-equitable care.
Additionally, Roberts said the court is “not in the best position to address issues like gender-affirming care” and should allow lawmakers to make such decisions.
Tennessee lawmakers passed Senate Bill 1 in 2023 after an uproar over reports from a right-wing radio commentator that Vanderbilt University Medical Center was performing surgeries and giving children puberty blockers and hormone therapy. Vanderbilt said no surgical procedures were performed at the time the problem arose.
Gov. Bill Lee says Tennessee has a “compelling interest in encouraging minors to appreciate their gender, particularly during puberty” and blocking treatments “that could encourage minors to despise their gender.”
The American Civil Liberties Union, ACLU Tennessee, Lambda Legal and Akin Gump Strauss Hauer & Feld filed suit against Tennessee, claiming the equal protection rights of transgender children were violated. The law was struck down by the U.S. District Court, but that decision was overturned by the 6th Circuit Court of Appeals and the U.S. Supreme Court agreed to hear the case.
Tennessee’s legal strategy is based on the premise that the 2023 law banning puberty blockers and hormone therapy for teenagers is based on “medical purposes” and not a child’s gender.
In contrast, plaintiffs’ lawyers said Senate Bill 1 imposes a blanket ban on gender-affirming care based solely on a child’s desire to change gender. They pointed out that children suffering from gender dysphoria could be vulnerable to suicide if they do not receive puberty blockers or hormone treatments that allow them to transition to a gender other than their birth gender.
The plaintiffs’ lawyers say the Supreme Court should give the matter a “heightened review” or closer scrutiny because it involves discrimination against transgender children, rather than considering it on the usual “rational basis” that usually used when a law does not incorporate a constitutional right.
Justice Department Attorney General Elizabeth Prelogar told the justices that the state of West Virginia passed a law setting requirements for receiving gender-affirming care, while Tennessee passed a blanket ban on children seeking to transition to a different gender.
Justice Kagan pointed out that the law was based on “transgender status” and not just sex. She also said Tennessee seemed to want to “conform to sex stereotypes.”
Kavanaugh maintained the argument that some transgender people want to transition back to their original gender as they get older, but are physically unable to make the change.
“How do we as a court decide which risks are more serious in constitutional certification?” Kavanaugh said.
