Supreme Court appears skep­ti­cal of undo­ing Ten­nessee ban on trans pro­ce­dures for minors

After con­tentious oral argu­ments, the jus­tices are left with the task of deter­min­ing whether Tennessee’s law dis­crim­i­nates on the basis of sex or it reg­u­lates med­ical treat­ment with­in tra­di­tion­al state author­i­ty.

Still, the major­i­ty of jus­tices appeared to be sym­pa­thet­ic to Tennessee’s argu­ments.

Oral argu­ments in US v. Skrmet­ti reviewed Tennessee’s Sen­ate Bill 1 (SB1), a law pro­hibit­ing puber­ty block­ers, cross sex hor­mones, and trans­gen­der surg­eries for minors. The statute was ini­tial­ly chal­lenged by the Amer­i­can Civ­il Lib­er­ties Union and oth­er top law firms on behalf of “fam­i­lies with trans­gen­der ado­les­cents,” the ACLU wrote in a press read­out. The argu­ments marked the first time in his­to­ry the court has con­sid­ered a dis­pute on the author­i­ty of states to reg­u­late trans­gen­der hor­mone ther­a­pies for minors with gen­der dys­pho­ria. 

Pres­i­dent Joe Biden’s Jus­tice Depart­ment inter­vened in the case after the U.S. Court of Appeals for the 6th Cir­cuit, led by Chief Judge Jef­fery Sut­ton, upheld the law. 

The jus­tices’ cen­tral con­cern dur­ing the hear­ing is whether SB1 unlaw­ful­ly dis­crim­i­nates against youth under the Four­teenth Amend­ment or whether it con­sti­tutes a legit­i­mate exer­cise of state author­i­ty to pro­tect minors from life-alter­ing med­ical pro­ce­dures. 

The out­come of the case will have sig­nif­i­cant impli­ca­tions for the more than 20 oth­er states with sim­i­lar laws on the books.

Sex-based dis­crim­i­na­tion 

Ten­nessee Solic­i­tor Gen­er­al James Rice argued that “there is no sex-based line” in his state’s statute that would make the law vio­late the Four­teenth Amend­ment, but U.S. Solic­i­tor Gen­er­al Eliz­a­beth Prel­og­ar said the law fun­da­men­tal­ly dis­crim­i­nates on sex.

“Part of what the state was attempt­ing to do is what the phys­i­cal expec­ta­tions of how males and females should appear,” said Prel­og­ar. “It’s not at all sur­pris­ing to think of that as a sex clas­si­fi­ca­tion.”

Jus­tice Ele­na Kagan, part of the three-mem­ber lib­er­al bloc on the high court, said that the law essen­tial­ly says “we want boys to be boys and girls to be girls.”

Jus­tice Samuel Ali­to pushed back against the Biden Administration’s use of rea­son­ing under Bostock v. Clay­ton Coun­ty (2020), which extend­ed Title VII employ­ment pro­tec­tions to gen­der iden­ti­ty. 

“Bostock involved the inter­pre­ta­tion of a par­tic­u­lar lan­guage in a par­tic­u­lar statute, and this is not a ques­tion of statu­to­ry inter­pre­ta­tion. It’s a ques­tion of the Equal Pro­tec­tion Clause of the 14th Amend­ment,” said Ali­to.

Prel­og­ar replied to the chal­lenges from Roberts and Ali­to by high­light­ing that the law specif­i­cal­ly pro­hibits use of med­ica­tion on the basis of sex, a form of dis­crim­i­na­tion that has long prece­dent from the Court.

“This statute on its face says you can’t have med­ica­tion incon­sis­tent with sex, and no mat­ter what you think about trans­gen­der dis­crim­i­na­tion gen­er­al­ly, that’s a sex-based line,” said Prel­og­ar. 

“I’m not sure that’s any­thing more than a play on words,” said Ali­to. 

Jus­tice Sonia Sotomay­or clar­i­fied that Bostock was only invoked in the Biden administration’s argu­ment inso­far as both cas­es deal with sex-based clas­si­fi­ca­tions and the cor­re­spond­ing lev­el of scruti­ny.

Dis­crim­i­na­tion based on immutable char­ac­ter­is­tics

Ali­to posed the ques­tion sev­er­al times whether or not trans­gen­der iden­ti­ty is an unchang­ing char­ac­ter­is­tic. 

Chase Stran­gio, a lawyer with the ALCU’s LGBT & HIV Rights Project, told Ali­to that “the record shows that there is at least a strong under­ly­ing basis” for immutabil­i­ty of trans­gen­der iden­ti­ty.

Stran­gio, 42, pre­sent­ed oral argu­ments on behalf of the indi­vid­ual fam­i­lies suing against SB1 and is the first bio­log­i­cal female who iden­ti­fies as a man to argue before the high court. 

Jus­tice Amy Coney Bar­rett pushed back against the argu­ment that dis­crim­i­na­tion against trans-iden­ti­fied indi­vid­u­als has less of a his­to­ry of legal dis­crim­i­na­tion than oth­er issues of race and gen­der.

“At least de jure dis­crim­i­na­tion of the sort expe­ri­enced by women, you know, or peo­ple on the basis of race, gives us some­thing to point to if we’re going to be iden­ti­fy­ing a new sus­pect class, which we haven’t done for a long time,” said Bar­rett.

Stran­gio not­ed bans on cross-dress­ing and bans on mil­i­tary ser­vice in the past as the de jure dis­crim­i­na­tion that would ful­fill Barrett’s ques­tion.

Kagan ques­tioned whether or not the sex-clas­si­fi­ca­tion argu­ment from Prel­og­ar is strong enough in this case, but Jus­tice Ketan­ji Brown Jack­son sup­port­ed Prelogar’s argu­ment.

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Jack­son drew notable atten­tion when she sug­gest­ed that there was a par­al­lel between this case and Lov­ing v Vir­ginia, which over­turned rules against inter­ra­cial mar­riage. 

“I won­der if Vir­ginia could have got­ten away with what they did [there] by just mak­ing a clas­si­fi­ca­tion argu­ment the way that Ten­nessee is in this case,” said Jack­son.”

Jack­son lat­er said that she was “wor­ried that we’re under­min­ing the foun­da­tions of some of our bedrock equal pro­tec­tion cas­es.”

Rice said that “we just don’t think there is any sex-based line” in this case, mak­ing it unlike Lov­ing or oth­er dis­crim­i­na­tion cas­es.

“In this case, the only way that they can point to a sex-based line is to equate fun­da­men­tal­ly dif­fer­ent med­ical treat­ments, said Rice. “Giv­ing testos­terone to a boy with a defi­cien­cy is not the same treat­ment as giv­ing it to a girl who has psy­cho­log­i­cal dis­tress asso­ci­at­ed with her body.”

Rice used an anal­o­gy of using mor­phine for pain man­age­ment ver­sus using it for assist­ed sui­cide, high­light­ing how the same drug can be used for two very dif­fer­ent pur­pos­es.

Role of the Court in med­ical deci­sions

“The equal pro­tec­tion clause does not require the state to blind them­selves to med­ical real­i­ty or to treat unlike things the same, and it does not con­sti­tu­tion­al­ize one side’s view of a dis­put­ed med­ical ques­tion,” said Rice. 

Chief Jus­tice John Roberts ques­tioned Prel­og­ar regard­ing the high­ly dis­put­ed med­ical infor­ma­tion in this case, par­tic­u­lar­ly on the side effects of puber­ty block­ers and cross-sex hor­mones.

“Here it seems to me that the med­ical issues are much more heav­i­ly involved than many of the cas­es that you look to,” said Roberts, adding that the high court is “not the best sit­u­at­ed to address issues like that.”

Ali­to pressed Prel­og­ar by not­ing that the Unit­ed King­dom, Swe­den, Fin­land, and Nor­way have sig­nif­i­cant­ly cur­tailed their use of both cross-sex hor­mones and puber­ty block­ers due to a lack of evi­dence.

Jus­tice Brett Kavanaugh and Ali­to echoed Roberts’s ques­tions regard­ing the role of the states in mak­ing legal judge­ments on high­ly evolv­ing med­ical sci­ence. 

“I do think that judges are equipped to make those deter­mi­na­tions, as they do in many, many oth­er con­texts,” said Stran­gio.

Kavanaugh said that “there’s no kind of per­fect way out” when weigh­ing the pros and cons of allow­ing trans­gen­der hor­mone treat­ments for minors.

“It’s not sim­ply a morals leg­is­la­tion, as they’ve described it. It’s a health and safe­ty jus­ti­fi­ca­tion, and it seems that there are risks and ben­e­fits both ways here, so it’s very hard to weigh those,” said Kavanaugh. “Either way, peo­ple are going to be harmed.”

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Prel­og­ar argued that the Court could write a nar­row­ly-tai­lored opin­ion that does not nec­es­sar­i­ly pre­vent states from reg­u­lat­ing trans­gen­der med­ical care for minors.

“If you are con­cerned, Jus­tice Kavanaugh, about mov­ing too fast in this space and maybe restrict­ing the abil­i­ty of states to take a close look at these issues, I think the court could say sim­ply that when you pro­hib­it con­duct that’s incon­sis­tent with sex, that is a sex-based line,” said Prel­og­ar.

“The rea­son it doesn’t look like a typ­i­cal med­ical reg­u­la­tion is because the leg­is­la­ture was doing some­thing in try­ing to get minors to appre­ci­ate their sex and not become dis­dain­ful. That’s not a med­ical-based jus­ti­fi­ca­tion, But I think it shows exact­ly why the states drew the lines where it did,” Prel­og­ar said dur­ing her rebut­tal. 

When pressed by Kavanaugh on the med­ical sci­ence, Prel­og­ar admit­ted that cross-sex hor­mones have per­ma­nent effects on a devel­op­ing child’s body. She also told the Court that puber­ty-block­ers do not have long-term effects on fer­til­i­ty and are “just press­ing pause on someone’s endoge­nous puber­ty to give them more time to under­stand their iden­ti­ty.”

Prel­og­ar did acknowl­edge as a fac­tu­al mat­ter that there are “a very small num­ber” of detran­si­tion­ers, or those who regret and attempt to reverse their med­ical gen­der tran­si­tion.

Rice argued that allow­ing trans­gen­der med­ical treat­ment can­not for­go the risk of detran­si­tion­ers, but both Sotomay­or and Jack­son aggres­sive­ly retort­ed that all med­ical treat­ments have risk of remorse or harm. 

“There is always going to be a per­cent­age of the pop­u­la­tion under any med­ical treat­ment that is going to suf­fer harm,” said Sotomay­or. 

Trans­gen­der sports

One of the under­ly­ing themes of the con­ver­sa­tion sur­round­ed the hot­ly debat­ed cul­ture war issue sur­round­ing bio­log­i­cal men par­tic­i­pat­ing in women’s sports. Kavanaugh and Prel­og­ar debat­ed the ram­i­fi­ca­tions of the impend­ing deci­sion on bio­log­i­cal males in female sports. 

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Prel­og­ar argued that the care­ful and indi­vid­ual med­ical deci­sions of trans-iden­ti­fied youth and their fam­i­lies are fun­da­men­tal­ly dif­fer­ent.

“I think one real­ly appar­ent dif­fer­ence is that in the con­text of sports there are argu­ments made that affects the rights of cis-gen­der women,” Prel­og­ar said, con­tend­ing that an ulti­mate deci­sion over Tennessee’s law would have noth­ing to say regard­ing future legal dis­putes over men par­tic­i­pat­ing in women’s sports.