The United States Supreme Court heard oral arguments Wednesday in a case that has the potential to set a new legal precedent for transgender people’s rights to gender-affirming medical care.
The case centres on a Tennessee law passed in 2023. SB1 prohibits both surgery to treat gender dysphoria and the prescription of hormone blockers for minors experiencing gender dysphoria. The law’s stated purpose is to “protect the health and welfare of minors.”
However, SB1 does not prohibit all patients from receiving puberty-delaying medication or hormone therapy; rather, it only applies to those who would use the treatment to change a minor’s assigned sex.
Under the law, young people who use treatments to treat early or delayed puberty may continue to use the medications.
The Tennessee legislature stated in the legislation’s text that the state “has a legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty.”
Twenty-six states currently have similar laws prohibiting gender-affirming healthcare. Opponents of these restrictions argue that they are especially harmful to transgender children, citing research that shows the restrictions have a significant negative impact on their mental health.
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The legal challenge
Three transgender teenagers and their parents filed L.W. v. Skrmetti against several Tennessee state officials. The lawsuit only challenges the portion of the statute that prohibits puberty blockers and hormone therapy, not the section that prohibits gender-affirming surgery.
The primary issue is an Equal Protection Clause challenge to the law, which challengers argue denies medical treatment based on gender.
At the district court level, the challengers won. U.S. District Judge Eli Richardson, a Donald Trump appointee, found that SB1 likely violates the right to equal protection and temporarily suspended the ban.
Richardson stated in his decision that puberty blockers and hormone therapy are “safe, effective, and comparable in both risk profile and efficacy to many other forms of paediatric medicine that Tennessee permits.”
On appeal, the United States Court of Appeals for the Sixth Circuit overturned and upheld the ban, applying the rational basis standard, the lowest level of constitutional scrutiny, to the case.
The outcome of the case has the potential to set limits on transgender medical care across the country.
“Laws like Tennessee’s are not benign regulations of medical care; they are discriminatory efforts to exclude transgender people from the protections of the Constitution,” said Chase Strangio, co-director of the ACLU’s LGBTQ & HIV Project in a statement about the case.
“These bans represent a dangerous and discriminatory affront to the well-being of transgender youth across the country and their constitutional right to equal protection under the law.”
According to the Equal Protection Clause of the 14th Amendment to the Constitution, state laws that apply differently to different groups of people are subject to one of three levels of constitutional scrutiny, depending on the classification at issue.
Legislation that draws lines based on race, religion, or national origin must pass strict scrutiny in order to be valid.
Gender distinctions must pass intermediate scrutiny, while all other distinctions must pass rational basis scrutiny. Intermediate scrutiny requires that a law be overturned unless it is substantially related to an important state interest.
Strangio, who argued the case for the ACLU before the Supreme Court on Wednesday, is the first openly transgender lawyer to do so.
Oral Arguments
The justices debated the statute for more than two hours Wednesday, with lawyers representing the Biden administration and the ACLU opposing it and one from Tennessee supporting it.
Throughout the lengthy proceedings, only the Court’s liberal minority appeared willing to subject the Tennessee law to increased constitutional scrutiny.
Justice Neil Gorsuch, who wrote the landmark Bostock v. Clayton County opinion that upheld transgender rights in 2020, remained silent throughout the morning.
The Court’s right wing questioned U.S. Solicitor General Elizabeth Prelogar extensively about whether SB1 classifies people “on the basis of sex” — which would result in increased scrutiny.
While Chief Justice John Roberts expressed concerns about judges’ roles in cases involving “evolving standards” and “medical nuances,” Justice Samuel Alito questioned Prelogar about how other countries have handled transgender medical care.
Alito questioned the challengers’ claim that there is “overwhelming evidence” that puberty blockers significantly improve the psychological well-being of adolescents who experience gender dysphoria.
The justice cited studies conducted in the United Kingdom and Sweden as evidence that this conclusion is questionable.
Alito also suggested that the Tennessee statute should not be viewed as a sex-based classification, but rather as a response to physical differences between men and women.
He went on to compare the current dispute to previous pregnancy cases, in which Alito stated that “there was no equal protection problem,” due to disparate treatment between genders.
Justice Sonia Sotomayor stepped in to explain the concept of intermediate scrutiny and its intended purpose.
She recalled that women were once barred from becoming butchers or lawyers because legislators believed they “weren’t strong enough to pursue those occupations.” Sotomayor went on to list some of the serious consequences of persistent gender dysphoria, including drug addiction, suicide, and physical illness.
Sotomayor argued that the purpose of intermediate scrutiny is to ensure that neither legislatures nor “this court” make personal judgements based on gender, but rather that laws that draw lines based on gender are examined more closely, “to ensure that those children who are going to suffer all of these consequences will be made to do so only when it’s compellingly necessary.”
Justice Elena Kagan proposed yet another option for the court: treating the law as discriminatory against transgender people, rather than one that raises a male versus female equal protection issue.
However, Justice Brett Kavanaugh warned the Court not to “constitutionalize” the issue of transgender rights while “the rest of the world is pumping the brakes” on transgender medical care.
Kavanaugh shifted the discussion to transgender girls’ rights to participate on girls’ sports teams, to which Prelogar responded that in cases involving gender-separated spaces, different state interests are at stake.
Justice Ketanji Brown Jackson raised a related question several times during the arguments: whether Tennessee’s justifications for its statute are similar to those advanced in the 1950s and 1960s in support of antimiscegenation legislation.
“I wonder if Virginia could have gotten away with what it was doing if it just argued what Tennessee is arguing here,” speculated Jackson.
During a conversation with Strangio, Alito pushed back against the idea of creating a new quasi-suspect classification for transgender people, arguing that being transgender is not always irreversible.
Strangio argued that, while people’s gender identities can change over time, discordance between birth gender and gender identity does meet the legal standard for immutability.
Furthermore, Strangio stated that there are compelling reasons to grant transgender people suspect or quasi-suspect status — a designation that determines the level of scrutiny a law governing that status would receive — given the nature of the characteristic and the history of discrimination.
Kavanaugh argued that regardless of the level of scrutiny applied to the law, Tennessee would be called upon to defend it based on public health and safety concerns — and that “it’s hard to weigh them,” given that both benefits and burdens must be considered.
Jackson reminded her fellow justice that the scientific arguments about the risk of transgender medical care are exactly the same ones used by Virginia to uphold its antimiscegenation statute in Loving v. Virginia.
When Tennessee Solicitor General J. Matthew Rice argued to uphold the ban, he faced tough questions from the Court’s liberal wing.
Sotomayor interrupted Rice’s discussion of the risks of puberty blockers, saying, “I’m sorry, but every medical treatment has a risk — even taking aspirin.”
“The question in my mind is not, ‘do policymakers decide whether one person’s life is more valuable than the millions of others that get relief form this treatment,'” Sotomayor continued. “The question is can you stop one person of one sex from another sex from receiving that benefit.”
Kagan agreed, snapping, “It’s a dodge to say that this is not based on sex.”
Kagan also challenged Tennessee’s stated purpose for the law, which Rice claimed is to protect minors from irreversible medical consequences.
Kagan quoted the statute’s language and said, “It sounds to me like ‘we want boys to be boys and girls to be girls.'”
You can listen to the full oral arguments here .
