Supreme Court conservatives appeared leaning toward upholding Tennessee’s ban on gender-confirming care for minors in a blockbuster showdown over transgender rights on Wednesday.
In a two-and-a-half-hour debate, several conservative justices questioned the Biden administration’s claim that there is “overwhelming” evidence that the benefits of giving puberty blockers and hormone treatments to some teens with gender dysphoria outweigh the risks.
“I’m wondering whether you want to remain faithful to that statement or whether you think it would now be appropriate to change it and withdraw the statement,” Justice Samuel Alito said, repeatedly referring to several European countries that have recently taken action have taken to limit some gender restrictions. affirmative care
“If it’s evolving and changing like that, and England is withdrawing and Sweden is withdrawing, it seems to me to be a pretty heavy yellow light, if not red light, that this court, the nine of us, are coming in and constitutionalizing this entire area,” noted So does Judge Brett Kavanaugh.
Opponents of U.S. laws banning gender-affirming care for transgender youth say the bans imposed by Republican-led states go much further than European policies that restrict care but do not categorically ban it.
“This is not an ordinary medical prescription,” Pratik Shah, head of the Supreme Court and appellate practice at Akin Gump, said of the Tennessee law.
Tennessee law, SB 1, prohibits medical providers from administering puberty blockers or hormone treatments for the purpose of enabling a transgender minor to live a life consistent with their gender identity. The law also bans gender-affirming surgeries, although that provision is not controversial in the Supreme Court. Providers who violate the law could face a civil penalty of $25,000.
The administration’s challenge to Tennessee’s restrictions is expected to impact similar laws passed in about half the country, setting off a high-stakes fight that drew national attention and demonstrations outside the courthouse on Wednesday.
The dispute comes at a time when Republicans are increasingly focused on anti-transgender messaging. Millions will be spent on related campaign ads this cycle, and a series of recent laws restrict what transgender Americans can apply, the sports teams they join and the medical care they receive.
At the heart of the current dispute is the question of what level of control the law should receive.
The Biden administration maintains that Tennessee’s ban should be treated as a form of gender discrimination. For decades, the court has subjected such cases to an “intermediate test,” in which the government must prove that the law is substantially related to an essential interest.
“SB 1 regulates by drawing boundaries based on gender and declaring that those boundaries are intended to encourage minors to appreciate their gender,” said U.S. Attorney General Elizabeth Prelogar.
Tennessee said its law classifies by medical purpose, not gender, so it only needs to go through a lower level of review known as “rational basis review.”
“Just as the use of morphine to relieve pain is different from its use to assist suicide, the use of hormones and puberty blockers to treat a physical illness is significantly different from its use to treat psychological distress related to one’s own body,” began the Attorney General of Tennessee, J. Matthew Rice his argument.
“Why isn’t it just an age rating?” Conservative Justice Clarence Thomas pushed for the government and sympathized with Tennessee’s position.
LGBTQ advocates are hoping for another surprise victory on the conservative-majority Supreme Court after Justice Neil Gorsuch, President-elect Trump’s first nominee, ruled in the court’s majority opinion in 2020 that an employer should not hire someone based on their sexual orientation or gender dismisses identity violates Title VII of the Civil Rights Act of 1964.
The Biden administration insists that the same reasoning applies to the Equal Protection Clause and that Tennessee’s gender-affirming foster care ban should be repealed.
But during Wednesday’s argument, Gorsuch didn’t ask a single question. He spent most of his time reading documents or holding a pen to his chin while listening to lawyers speak.
The court’s liberals, meanwhile, sympathized with the Biden administration’s reliance on major medical organizations that believe gender-affirming care is safe and sound and medically necessary.
“The evidence is very clear that there are some children who actually need this treatment, right?” said Judge Sonia Sotomayor.
The Justice Department challenged the law, along with three transgender youth in the state, their parents and a Tennessee doctor who treats gender dysphoria.
The high stakes of the case have drawn widespread attention, with dozens of outside groups filing briefs supporting each side.
The Justice Department’s challenge found support among Democratic attorneys general in 19 states and in Washington, D.C.; various LGBTQ advocacy groups; 164 Democratic lawmakers; Rep.-elect Sarah McBride (D-Del.), who is expected to become the first openly transgender member of Congress; actor Elliot Page; and the American Bar Association.
Tennessee officials are supported by 25 Republican attorneys general; various conservative right-wing groups; the United States Conference of Catholic Bishops; and dozens of athletes speaking out against transgender women competing in women’s competitions, including former swimmer Riley Gaines and former tennis star Martina Navratilova.
Competing rallies — one organized by conservative organizations such as the Alliance Defending Freedom and Do No Harm and another by the American Civil Liberties Union and Lambda Legal — drew more than 1,000 people to the courthouse on Wednesday.
“There’s a really strong precedent that the state plays an important role in protecting children from harm, and I think Tennessee’s law does just that,” said Hannah Daniel, public policy director at the Commission on Ethics and Religious Liberty, the public policy branch of the Southern Baptist Convention. “I hope the judges will see that too.”
“I’m in favor of supporting children and giving them the therapy and treatment they need, but not this kind of irreversible medication,” said Laura Hanford, a consultant and visiting fellow at the Heritage Foundation, a conservative think tank in Washington. Hanford, of Fairfax, Virginia, said she has been advocating against gender identity protections since 2015, when her local school board approved the inclusion of information about transgender people in the sex education curriculum.
“The encouraging thing is that a lot more people are now aware of the problem,” Hanford said, pointing to the growing crowd gathered outside the courthouse.
Transgender rights advocates waved pride flags and held signs calling on lawmakers and court judges to protect access to gender-affirming care say major medical associations can be life-saving.
A participant from Alliance, Ohio, carried an 18-foot flagpole as he weaved through the crowd. A Progress Pride flag, a redesign of the classic rainbow flag that represents the movement, and an American flag that flew over the heads of spectators.
“This belongs to every American of every identity imaginable,” he said of the U.S. flag, “and it is time for us to take it back and use it to represent freedom and equality for all.”
Daniel Trujillo, a transgender teenager from Arizona, came to the Supreme Court with his mother, Lizette, to advocate for gender-equitable care for transgender youth. When the Supreme Court issues its ruling this summer, Daniel Trujillo will already be 18, meaning his access to health care will not be affected for now.
“I know what it is like and how important it was for me to receive gender-equitable care and I know how positively it has impacted my life. I know that life would have been much more difficult without her. I really don’t want this for my friends and family. I care about my people.”
Actress Annette Bening, who also attended the rally organized by the ACLU, called transgender rights “the civil rights issue of our time.”
“Our transgender and all trans people need to be seen and heard,” said Bening, whose son Stephen came out as transgender as a teenager.
Following Wednesday’s arguments, ACLU attorney Chase Strangio, shortly after becoming the first openly transgender person to argue before the Supreme Court, encouraged transgender youth and their families to hope that the justices would rule on their side. But said the community and its allies will continue to defend transgender rights even if the court decides to uphold Tennessee’s law.
“Our fight for justice did not begin today,” he said. “It won’t end in June, whenever the court decides.”
“I know that the coming months and years will be terrifying. “I know we have been the subject of relentless and unwarranted attacks,” Strangio said, referring to promises from the recent Trump administration that threaten to roll back transgender rights. “We are in this together. I love being trans, I love being with you and we will take care of each other.”
A decision in the USA v. Skrmetti case is expected in the summer.
Updated at 4:48 p.m
