The conservative-majority Supreme Court on Wednesday leaned toward upholding a Tennessee law that restricts gender transition treatments for minors in a significant case on transgender rights.
It did not appear based on a lengthy oral argument that conservative justices believed that the law constitutes a form of sex discrimination that would mean courts have to give it close scrutiny. The court’s three liberal justices all appeared to view the law as classifying people by sex.
The court, which has a 6-3 conservative majority, is considering a challenge brought by the Biden administration and transgender teens and their families against the recently enacted law.
The state measure enacted in 2023 bars gender transition surgery for minors as well as puberty blockers and hormone therapy. The surgery ban is not at issue in the Supreme Court case after a lower court judge said the plaintiffs did not have legal standing to challenge it.
No matter how the court rules, it will have a broad impact, as more than 20 other states have passed laws similar to Tennessee’s.
Conservative justices questioned whether the court should second-guess the state legislature on a medical issue over which there is considerable debate. The state argues that the law does not constitute sex discrimination, saying it is merely a form of medical regulation that applies equally to everyone.
Several justices raised questions about changing views and increasing uncertainty among health authorities in Europe about some aspects of gender-affirming treatments.
“It strikes me as 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 people who the countries that have been at the forefront of this, are pumping the brakes on this kind of treatment,” said conservative Justice Brett Kavanaugh.
Chief Justice John Roberts expressed similar concerns, saying the justices are “not the best situated to address issues like that” where conflicting views on medical issues have to be weighed.
“Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than trying to determine them for ourselves?” he added.
Conservative Justice Samuel Alito asked the toughest questions of the challengers, including Chase Strangio, an American Civil Liberties Union lawyer who became the first openly transgender person to argue at the court.
Alito questioned the medical evidence for the efficacy of puberty blockers and hormone treatments, which the Biden administration has asserted is overwhelming. He also asked Strangio if being transgender is an “immutable characteristic” in the same way as, for example, race.
Alito was among those who pointed to recent moves by governments in Europe, including the United Kingdom and Sweden, to tighten standards for providing gender transition care for minors.
Solicitor General Elizabeth Prelogar, representing the Biden administration, acknowledged there is “a lot of debate” about the proper model of treatment and for whom and at what age it would help, but she argued there was a consensus that the care can be medically necessary for some adolescents.
She pointed out that the United Kingdom and Sweden have not outright banned such treatments.
“I think that’s because of the recognition that this care can provide critical, sometimes life-saving benefits for individuals with severe gender dysphoria,” she added, referring to the clinical term given to the distress people can experience when their gender identities are in conflict with the genders assigned to them at birth.
Among the liberal justices, Justice Sonia Sotomayor was most forceful in highlighting the impact of state bans on transgender youth.
“The evidence is very clear that there are some children who actually need this treatment,” Sotomayor said. As such, courts have a duty to take a close look at the government’s rationale for enacting laws “to ensure that those children who are going to suffer all of these consequences will be made to do so only when it’s compelling,” she added.
The oral argument Wednesday morning is the most significant so far of the court’s latest term, which started in October and ends in June.
There was a boisterous scene with supporters on both sides outside the court ahead of arguments. “Every child deserves the chance to fly as their true self,” one sign held by a pro-transgender rights attendee said. “Stop transing kids” said another held by a woman supporting the state’s law.
The challengers argue that the Tennessee law is a form of sex discrimination, violating the Constitution’s 14th Amendment, which requires equal treatment under the law. They say the law discriminates against transgender patients because there are other circumstances in which non-transgender patients can be treated with puberty blockers and hormone therapy for other reasons.
Among other things, Prelogar argued that laws targeting transgender people should be considered by courts under a strict standard called “heightened scrutiny.” If the court were to adopt that approach, it would make it easier for legal challenges against restrictions affecting transgender people to succeed. But it appeared unlikely based on the oral arguments that the court would take that route.
Kavanaugh repeatedly questioned whether a ruling for the plaintiffs in the Tennessee case would dictate how challenges to other laws affecting transgender people, including those that restrict their access to girls’ and women’s sports teams, are resolved. He referred to “competitive fairness and safety issues” that have been raised by some female athletes.
Wednesday’s case is the most significant on transgender issues since a surprise 6-3 ruling in 2020 written by conservative Justice Neil Gorsuch. He concluded that federal law that bars sex discrimination in employment protected transgender and gay people, a ruling that angered conservatives.
Gorusch did not speak during Wednesday’s argument, meaning his views on the case are unclear. The 2020 ruling was mentioned by others, with conservatives indicating its rationale did not apply to the Tennessee dispute.
In defending the Tennessee law, the state’s attorney general, Jonathan Skrmetti, emphasized in court papers the rapid change in approach on how to treat minors diagnosed with gender dysphoria.
Major medical organizations say gender-affirming treatments are an effective way to treat gender dysphoria.
But Alabama Attorney General Steve Marshall, whose state has a similar ban to Tennessee’s, is one conservative figure who has questioned those findings. He filed a brief describing what he called a “medical, legal and political scandal” led by activists to influence medical experts to help them win in court.
In a related case that could indicate where the justices are leaning, the Supreme Court in April allowed Idaho to mostly enforce a similar law. The court’s three liberal justices dissented.
The case being argued Wednesday reached the Supreme Court after the Cincinnati-based 6th U.S. Circuit Court of Appeals issued a ruling last year rejecting challenges to the Tennessee law and a similar measure in Kentucky. A district court judge had blocked the law, but the appeals court allowed it to go into effect.
One potential wrinkle in the Tennessee case is that the incoming Trump administration could change the federal government’s position in the case and come out in favor of the state’s law before the court rules. Such a move might not, however, have any impact on how the case is decided. A ruling is expected by the end of June.