‘The pen­du­lum is swing­ing’: Experts weigh in on his­toric SCOTUS trans­gen­der case amid oral argu­ments

The Supreme Court (SCOTUS) began hear­ing oral argu­ments for the high-pro­file case involv­ing Ten­nessee’s ban on trans­gen­der med­ical pro­ce­dures for minors on Wednes­day, and one expert is say­ing the his­toric case shows “the pen­du­lum is swing­ing.” 

The case, U.S. v. Skrmet­ti, will decide whether Ten­nessee’s ban on trans­gen­der med­ical pro­ce­dures is con­sti­tu­tion­al and could impact whether states will enact more bans and allow indi­vid­u­als to sue med­ical providers. 

“I think you’re find­ing more of these peo­ple will­ing and cer­tain­ly want­i­ng to sue the phar­ma­ceu­ti­cal com­pa­nies, as well as the doc­tors who pre­scribe med­ica­tion or did the surgery,” Mat Staver, chair­man of non­prof­it legal group Lib­er­ty Coun­sel, told Fox News Dig­i­tal in an inter­view. 

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“So I think that the pen­du­lum is swing­ing,” said Staver, whose legal group filed an ami­cus brief in sup­port of Ten­nessee Attor­ney Gen­er­al Jonathan Skrmet­ti. “So even no mat­ter what the Supreme Court does, I think the law­suits will ulti­mate­ly be the death mill of this kind of inter­ven­tion.”

As oral argu­ments com­menced Wednes­day morn­ing, sup­port­ers and oppo­nents of gen­der tran­si­tion treat­ments gath­ered out­side the SCOTUS build­ing hold­ing trans­gen­der Pride flags and “Kids’ Health Mat­ters.” Over the course of more than two hours, the jus­tices lis­tened to each side present their argu­ments and asked ques­tions.

The court’s rul­ing could affect oth­er cur­rent legal fights over trans­gen­der rights, includ­ing bath­room access and par­tic­i­pa­tion in scholas­tic sports. It could also serve as a legal tem­plate for future dis­putes involv­ing the LGBTQ com­mu­ni­ty and whether sex­u­al ori­en­ta­tion is a “pro­tect­ed class” that deserves the same rights that involve a per­son­’s race and nation­al ori­gin.

Staver said appel­late courts have con­sis­tent­ly upheld state bans on gen­der-affirm­ing care for minors, though some low­er court rul­ings have been over­turned on appeal. He pre­dicts the Supreme Court will like­ly fol­low this trend, fram­ing the issue as one of reg­u­lat­ing med­ical pro­ce­dures rather than a ques­tion of con­sti­tu­tion­al pro­tec­tion. 

“I think it’s real­ly a ques­tion of whether or not this ris­es to a lev­el of con­sti­tu­tion­al pro­tec­tion, which I don’t think it does,” Staver said.

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The Biden admin­is­tra­tion joined the law­suit by fil­ing a peti­tion to the Supreme Court in Novem­ber 2023. The Depart­ment of Jus­tice argued that the Ten­nessee law, which lim­its access to puber­ty block­ers and hor­mone ther­a­pies for trans­gen­der minors, vio­lates the Equal Pro­tec­tion Clause of the 14th Amend­ment. This clause requires equal treat­ment of indi­vid­u­als in sim­i­lar cir­cum­stances under the law.

“It is no sur­prise to my mind that this is some­thing I believe the Biden admin­is­tra­tion would love to hang its hat on as a vic­to­ry for so-called trans­gen­der rights,” Her­itage Foun­da­tion senior legal fel­low Sarah Per­ry told Fox News Dig­i­tal. 

The admin­is­tra­tion’s peti­tion empha­sized the “urgent need” for Supreme Court review, cit­ing the impact on fam­i­lies who risk los­ing essen­tial med­ical care. The DOJ also high­light­ed the broad­er impli­ca­tions of sim­i­lar laws in oth­er states, argu­ing that the bans dis­pro­por­tion­ate­ly tar­get trans­gen­der youth while per­mit­ting sim­i­lar treat­ment for non-trans­gen­der minors.

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“But I will say this is going to present a very inter­est­ing poten­tial, about FACE [The Free­dom of Access to Clin­ic Entrances Act] with the incom­ing Trump admin­is­tra­tion, they have made very clear dur­ing the cam­paign that they want to restrict these pro­ce­dures for minors,” Per­ry said.

“So the Depart­ment of Jus­tice under Pres­i­dent Trump has an oppor­tu­ni­ty to reverse course, to file a motion to dis­miss, vol­un­tar­i­ly dis­miss the case, and then it presents an inter­est­ing ques­tion: what do the jus­tices do?” she added.

The case comes as trans­gen­der issues have become a hot­ly debat­ed top­ic in the coun­try’s cul­ture wars. Sev­er­al large med­ical groups, includ­ing the Amer­i­can Med­ical Asso­ci­a­tion, Amer­i­can Acad­e­my of Pedi­atrics, Amer­i­can Psy­cho­log­i­cal Asso­ci­a­tion and Amer­i­can Acad­e­my of Child and Ado­les­cent Psy­chi­a­try, all endorse trans­gen­der med­ical pro­ce­dures for chil­dren. 

Mean­while, more than 26 states have either restrict­ed or passed laws ban­ning them.

Ten­nessee Attor­ney Gen­er­al Jonathan Skrmet­ti told reporters after the argu­ments, “The Con­sti­tu­tion allows the states to pro­tect kids from unproven, life-alter­ing pro­ce­dures based on uncer­tain sci­ence.”

A rul­ing is expect­ed by July 2025.

Fox News’ Shan­non Bream and Bill Mears con­tributed to this report.