Justices Asked to Overturn Tennessee Ban on Trans Care for Youths

WASHINGTON — The Supreme Court on Wednesday will weigh into one of the most contentious cases of the current term, a challenge to a Tennessee law that bans a wide range of medical care for transgender youths.

The court’s decision, which isn’t expected until late June, has 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.

SB1 also states that 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.

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.”

Shortly after the bill was signed into law, three transgender minors, their parents and a Tennessee doctor who treats adolescents with gender dysphoria sued the state to block its enforcement arguing the law violates the due process and equal protection clauses of the U.S. Constitution and other laws and statutes.

The Biden administration intervened in the case, supporting the plaintiffs, under a law that authorizes the government to participate in private equal protection lawsuits if and when the U.S. attorney general certifies that the case is one of “general public importance.”

A federal district court sided with the plaintiffs, granting them a preliminary injunction halting the state’s enforcement of the measure; however, a divided 6th U.S. Circuit Court of Appeals later reversed that ruling.

In doing so, said Chief Circuit Judge Jeffrey Sutton, writing for the majority, the court concluded the plaintiffs were not likely to prevail in the case.

Further, Sutton said courts should be cautious about interpreting the Constitution to cover “debates of this sort — over the use of innovative, and potentially irreversible, medical treatments for children.”

The appeal to the Supreme Court followed.

Now that the case is before the high court, the government, which will be represented by U.S. Solicitor General Elizabeth Prelogar, will argue that SB1 does indeed discriminate based on sex and also on transgender status.

Prelogar is expected to argue that because “transgender individuals satisfy all of the hallmarks of a quasi-suspect class,” the discrimination being claimed is based on sex, and therefore the 6th Circuit should have applied a heightened level of scrutiny in reviewing the plaintiffs’ claims — it didn’t — and therefore the case should be remanded for further consideration.

But the government’s argument goes a step further, arguing that if the appellate does apply a heightened level of scrutiny to the case the law would fail because the treatment ban is not substantially related to an important government interest and that much of it is based “on mere stereotype.”

The plaintiffs make a similar claim in their filings with the court, claiming SB1 is so far removed from the state’s interests that “it is impossible” to consider them legitimate in this case.

Tennessee Solicitor General J. Matthew Rice, a former minor league baseball player who was drafted by the New York Yankees, is expected to argue that SB1 does not classify anyone by sex, but rather distinguishes between “minors seeking drugs for gender transition and minors seeking drugs for other medical purposes.” 

Rice will also likely argue that SB1  does not discriminate by transgender status, and even if it did, “this court should not get back in the fraught business of creating suspect classes.”

He will also contend that the law reflects Tennessee’s compelling interests in the health and safety of minors in the state and the integrity of the medical profession.

The Supreme Court last took up the issue of transgender rights four years ago in Bostock v. Clayton County, and the case figured prominently in the plaintiff’s brief.

In a ruling written by Justice Neil Gorsuch, a majority of the justices held that federal civil rights law protected transgender people from workplace discrimination.

“It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Gorsuch wrote, a statement that could weigh heavily on the outcome of the current case.

In dissent, Justice Samuel Alito Jr. wrote stingingly, “the arrogance of this argument is breathtaking.”

It should also be noted that the court has changed significantly since Bostock was decided.

Though both Gorsuch and Alito remain on the court, its philosophical tilt has shifted to the right.

When Bostock was decided, there were four reliably liberal justices on the court, four conservatives, and Chief Justice John Roberts, who was often the swing vote on decisions. Today, the liberal faction consists of just three justices.

Dan can be reached at [email protected] and @DanMcCue