Conservative Supreme Court justices appeared skeptical Wednesday of arguments that they should intervene in Tennessee’s ban on gender-affirming care for minors.
The court heard arguments in U.S. v. Skrmetti that the state’s ban discriminated against transgender minors and denied them constitutionally equal protections. Outside the courthouse, in a sonic representation of the cultural divisiveness around the issue, advocates for gender-affirming care access blasted Bad Bunny and Rihanna, while their opponents waited out the arguments to the tune of Toby Keith and Zac Brown Band.
How the court rules on the case could have major implications for trans people of all ages, as well as for how much freedom states have to regulate health care more broadly in areas like reproductive health.
Tennessee’s ban on puberty blockers, hormones, and surgery for trans youth went into effect in July 2023. The law, also known as SB 1, was challenged shortly after by three families and a clinician, who argued that it violates the Equal Protection Clause of the 14th Amendment. A federal district court granted a preliminary injunction blocking the ban on puberty blockers and hormones, but that was reversed after the state appealed the decision to the Sixth Circuit court. That court determined that the law does not discriminate based on sex, and therefore requires less justification from the state government, and less interrogation from the courts, than if it did.
Some conservative justices’ lines of questioning suggested that they were reluctant for the court to weigh in on transgender care bans. Justice Brett Kavanaugh asked the Biden administration’s attorney, “Why isn’t it best to leave it to the democratic process?”
U.S. Solicitor General Elizabeth Prelogar responded that the court could write a “very narrow” opinion that instructs lower courts to demand more evidence from states instituting these types of bans.
Kavanaugh’s questions and those from others, including Chief Justice John Roberts, indicate that the majority could kick the case back to a lower court, though it’s unclear if they’ll agree that the state should provide more evidence for the ban.
Amy Coney Barrett, a Trump appointee, asked attorneys about parental rights. While parents’ rights to make decisions about their children’s health is not central to the transgender rights advocates’ case, Barrett’s question does reflect a divide among conservatives over care bans. Conservatives have traditionally leaned towards preserving parents’ rights in raising their children, but many have sided with state governments barring gender-affirming care for minors.
On the basis of sex
The major legal question of the case does not revolve around the medical evidence for gender-affirming care, but rather around whether the ban disallows care based on an individual’s sex. Counsel from the U.S. Department of Justice and the American Civil Liberties Union representing the families repeatedly said that it does, and because of that, the court should send the law back to the Sixth Circuit court for a higher level of scrutiny than originally given.
“SB 1 categorically bans treatment when — and only when — it’s inconsistent with the patient’s birth sex,” said Prelogar. The law does not ban puberty blockers and hormones for cisgender youth.
Matthew Rice, the Tennessee solicitor general, asserted that the law restricts care based on its purpose, not the sex of the individual. Puberty blockers prescribed for a cisgender boy going through precocious puberty serve a different purpose than those given to a trans child looking to delay biological puberty because of gender incongruence, he said.
Counsel for the families countered that the physical effects of hormones — secondary sex characteristics like larger breasts from estrogen or a lower voice from testosterone — are the same.
Whether the ban is found to deny care based on sex is important because it has legal implications for how much judicial scrutiny the courts give to a law. If the court agrees with the DOJ, it can send the case back to the Sixth Circuit and demand more evidence from the state justifying the law.
During the arguments, conservative justices seemed to question the assertion that the ban constitutes a classification based on sex. Justice Clarence Thomas asked why the case isn’t simply a case of age classification, as it restricts care only for minors. Prelogar as well as other justices pointed out that the law does both, and that any inclusion of sex-based classifications typically requires the higher level of judicial scrutiny that the petitioners are asking for.
The Democrat-appointed judges repeatedly grilled Rice on whether this law constituted sex-based discrimination. Rice argued it did not and was a matter of how medicines such as puberty blockers and testosterone supplements are being used.
“We don’t think it’s actually drawing a line based on sex,” he said.
Justice Elena Kagan and other Democratic appointees rebuked that argument. “It’s a dodge to say that this is not based on sex, it’s based on medical purpose, when the medical purpose is utterly and entirely about sex,” Kagan said.
Could the court’s decision on trans care bans affect care for adults, too?
Kavanaugh also indicated concern about how the outcome of the case could affect future legislation about trans people in sports, repeatedly asking if a ban on trans women in women’s sports could stand if this case was determined to involve sex classification. He appeared hesitant to issue any sweeping ruling that would have implications for that cultural and political debate.
“The follow-on effects of that could be pretty significant,” he said.
Prelogar proposed that the judge’s ruling could explicitly note that the decision does not relate to the separate state interests involved in laws around sports participation, which “have to be evaluated on their own terms.”
Chase Strangio, an ACLU attorney, argued that Tennessee’s assertion that the law is sex-neutral would open the door for both state and federal bans on gender-affirming care for adults as well. Justice Sotomayor pressed Rice on this question.
“If there were a similarly worded statute, there would still not be a sex or a transgender-based classification,” Rice said, asserting again that any related law only needs the lowest level of judicial scrutiny, called rational basis review. “This court has not hesitated to hold laws unconstitutional under rational basis review when they are rooted in unsubstantiated fears and prejudices.”
“I thought that that’s why we had intermediate scrutiny,” Sotomayor responded, pointing to the higher level of scrutiny that the DOJ is calling for. While Rice argued that elected legislators are best suited to evaluate potentially discriminatory laws, Sotomayor said that the democratic process has failed in the past to protect people including racial minorities and women.
Europe’s approach to gender-affirming care
Kavanaugh and other justices pointed to changing legislation in Europe as a potential reason for caution. “It’s obviously [an] evolving debate,” he said.
Conservative justices pointed to policy changes in places like the U.K., where gender-affirming medication for minors can only be prescribed as part of research. (No country in Europe has categorically banned gender-affirming care for youth as states in the U.S. have.)
“Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?” Roberts asked.
Prelogar and Strangio both acknowledged that, with evolving evidence, some level of restriction to care could be justified even under a higher level of scrutiny, and emphasized the request for a narrow ruling. They pointed to legislation in West Virginia that, rather than banning care for minors, added guardrails.
“We certainly are not asking the court to set forth some bright line constitutional rules in this space that is going to really take further debate and evaluation of regulatory options away from states,” Prelogar said.
The court’s 2022 decision overturning Roe v. Wade’s national abortion protections also loomed large over the arguments. With that decision, the court essentially ruled that regulating a medical procedure that largely applies to one sex is not unconstitutional. Tennessee’s legal team argued that their gender-affirming care restrictions are in the same vein — regulating a medical procedure, not discriminating on the basis of biological sex.
Outside the court
Transgender rights advocates and opponents gathered on opposite ends of the Supreme Court’s lower steps Wednesday morning, alternately rallying protestors with speeches, and blasting dueling playlists some 50 feet from each other.
Gender-affirming care bans question “the legitimacy of the health care that allows us to thrive,” Elliot Page, an actor and trans man, said to a crowd of rights activists after the arguments wrapped. “But is this really about health care? The evidence proves that this medical care is safe and effective, yet half the states in the country have passed new laws banning families from accessing health care that their transgender children need, and their doctors prescribe.”
Strangio, who on Wednesday became the first openly transgender person to argue a case before the Supreme Court, also spoke to the crowd from the steps of the court building.
“Whatever happens, we are the defiance of everything … they say about us,” Strangio said. “The fight for justice did not begin today. It will not end in June, whenever the court decides.”
Anti-transgender care advocates gathered nearby, waving signs that said “let’s help not harm,” and “kids’ health matters,” as they chanted “do no harm.”