Justices Appear Likely to Uphold Ban on Transgender Care for Minors
WASHINGTON — A majority of Supreme Court justices on Wednesday appeared likely to uphold a Tennessee law that bans gender-affirming care for transgender minors.
The dispute over the law is considered the marquee case of the new term, and while the court’s decision isn’t expected until late June, it could have potentially sweeping implications.
Not only will the justices decide the fate of the law in Tennessee and at least 21 other states that adopted a wave of prohibitions on gender-affirming care for minors in recent years, but also to what extent the equal protection clause bars discrimination against transgender individuals.
The case arises from a law adopted in Tennessee in March 2023 that prohibits health care providers from prescribing puberty-blocking medication, providing hormone therapy or performing surgery on transgender minors to facilitate their transition to another sex.
Significantly, the law, referred to in court documents as Senate Bill 1, does not ban the provision of puberty blockers or hormones for any other purpose, and it specifically exempts treatments for congenital defects, precocious puberty, disease or physical injury.
The law also asserts that Tennessee has a “compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty,” and in prohibiting treatments “that might encourage minors to become disdainful of their sex.”
Health care providers who violate its provisions are subject to civil penalties of $25,000 for each prohibited treatment, professional discipline and potential civil liability in private lawsuits.
In arguments that went on for more than two hours on Wednesday, the court’s five conservative justices all appeared to be skeptical of some aspect of the arguments made by the Biden administration and lawyers for the Tennessee families and health care providers who challenged the ban.
Perhaps the most telling comment came from Chief Justice John Roberts, who voted with the majority in Bostock v. Clayton County, the 2020 case in which a majority of the justices held that federal civil rights law protected transgender people from workplace discrimination.
In an exchange with Chase Strangio, a lawyer for the American Civil Liberties Union, Roberts noted that a number of courts around the country had expressed their concern over their “lack of knowledge” of medical procedures and the evolving consensus on them in the health care community.
Specifically, he said, those concerns related to judges paucity of knowledge regarding “what’s going on, what the effects were going to be, [and] what the remedies were going to be.”
“I think it would be very troubling to say that in such an evolving situation, we are going to decide what the right approaches are,” Roberts continued. “It’s my understanding the Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor.”
Robert’s suggestion troubled Justice Ketanji Brown Jackson, one of the liberal members of the court.
She said she was “suddenly quite worried” that the justices might avoid addressing the constitutional question at hand because they feel a level of squeamishness about the medical implication of the decision.
“I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases,” she said.
“I had understood that it was bedrock in the equal protection framework that there was a constitutional issue in any situation in which the legislature is drawing lines on the basis of a suspect classification, that it’s a constitutional question that is being raised when that is happening as a threshold matter. And then you may get into why it is happening, [and] what is the justification,” she added.
But Justice Samuel Alito had some of the very same concerns as the chief justice, noting that “a lot of categorical statements have been made this morning in argument and in the briefs about medical questions that seem to be to be hotly disputed.”
“That’s a bit distressing,” he said.
Later, in an exchange with Solicitor General Elizabeth Prelogar, Alito called into question a key passage of the government’s petition.
In it, he said to Prelogar, “you made a sweeping statement, which I will quote: ‘Overwhelming evidence establishes that the appropriate gender-affirming treatment with puberty blockers and hormones directly and substantially improves the physical, psychological well-being of transgender adolescents with gender dysphoria.’
“That was in November 2023,” Alito said. “Now, even before then, the Swedish National Board of Health and Welfare wrote the following: They currently assess ‘that the risks of puberty blockers and gender-affirming treatment are likely to outweigh the expected benefits of these treatments,’ which is directly contrary to the sweeping statement in your petition.
“After the filing of your petition … we saw the release of the Cass report in the United Kingdom, which found a complete lack of high-quality evidence showing that the benefits of the treatments in question here outweigh the risks,” he said.
Alito asked Prelogar if she still stood by the statement made in the government’s petition, or whether she now wanted to modify or withdraw it.
“I acknowledge that there is a lot of debate happening here and abroad about the proper model of delivery of this care and exactly when adolescents should receive it and how to identify the adolescents for whom it would be helpful,” Prelogar said.
“But I stand by that there is a consensus that these treatments can be medically necessary for some adolescents, and that’s true no matter what source you look at,” she said.
For Justice Brett Kavanaugh, the key questions about the case revolved around the idea that people would and could be harmed whichever way the court rules.
Specifically he expressed concern about those young people who might later regret transitioning.
“You do acknowledge there is such a group?” he asked Prelogar. “A group of individuals who later change their minds and want to de-transition?”
“Yes, we’re certainly not denying that some people might de-transition or regret this care, but all of the available evidence shows that it’s a very small number,” she said.
“Then to pick up on the chief justice and Justice Alito’s questions, it’s obviously an evolving debate,” Kavanaugh said.
“If it’s evolving like that and changing and England’s pulling back and Sweden’s pulling back, it strikes me as, you know, a pretty heavy yellow light, if not red light, for this court to come in, the nine of us, and to constitutionalize the whole area when the rest of the world — or at least the countries that have been at the forefront of this — are pumping the brakes on this kind of treatment because of concerns about the risks,” Kavanaugh said.
Noticeably demure during the debate was Justice Neil Gorsuch, who wrote the majority opinion in Bostock.
In that case, Gorsuch wrote, “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” a statement that the government and the Tennessee petitioners had hoped would weigh heavily on the outcome of the current case.
In its briefs in the case, the Biden administration argued that there is no way to determine whether “treatments must be withheld from any particular minor” without considering the minor’s sex.
“That is sex discrimination,” Prelogar told the justices on Wednesday.
In his dissent in Bostock, Alito wrote stingingly, “the arrogance of this argument is breathtaking.”
White not quite as blunt, Tennessee Solicitor General J. Matthew Rice rejected the government’s claim that the new law discriminates on the basis of sex.
Instead, he said, the lawmakers who drafted and passed the law nearly two years ago were acting out of a sincere desire to protect minors from the risks of “life-altering gender-transition procedures.”
Throughout the oral argument two loud and boisterous groups — one for and one against the Tennessee law — held extended rallies on the sidewalk outside the Supreme Court building.
Those advocating for the ban to be upheld raised signs that said things like “Stop the harm,” “Stop Transing Gay Kids,” and “Children cannot consent to puberty blockers.”
Those wanting the justices to strike down the law also had signs. They said things like “Trans stories are everyone’s stories,” “Trans people belong,” “Fight like a mother for trans rights,” “Healthcare bans are discrimination,” and “Let us care for our children.”
Dan can be reached at [email protected] and @DanMcCue
We're proud to make our journalism accessible to everyone, but producing high-quality journalism comes at a cost. That's why we need your help. By making a contribution today, you'll be supporting TWN and ensuring that we can keep providing our journalism for free to the public.
Donate now and help us continue to publish TWN’s distinctive journalism. Thank you for your support!
