The Supreme Court appears poised to uphold Tennessee’s ban on transgender youth care

ARGUMENT ANALYSIS

This article was updated on December 4 at 16:43

During nearly two and a half hours of debate Wednesday, nearly all of the court’s conservative majority expressed skepticism about a challenge to Tennessee’s ban on puberty blockers and hormone therapy for transgender teenagers. Three transgender teenagers, their families and a Memphis doctor, along with the Biden administration, argue that the law violates the Constitution’s guarantee of equal protection and should be examined with the higher level of legal scrutiny required in such cases. But Tennessee counters that it is merely exercising its power to regulate the practice of medicine for all youth and does not discriminate based on a patient’s gender.

Several of the court’s conservative justices expressed concern about whether lawmakers, rather than judges, are best suited to rule on what they saw as the complicated medical issues at the heart of the dispute. This idea has become a familiar theme at the court in recent years, including in the landmark 2022 decision overturning the constitutional right to abortion. Judge Brett Kavanaugh, in particular, wondered aloud on Wednesday whether decisions on issues such as gender-affirming care for transgender teenagers were best left to the democratic process.

The court’s decision could have ripple effects beyond Tennessee or even the other 23 states that have similar laws, affecting other protections for transgender people.

U.S. Solicitor General Elizabeth Prelogar urged the justices to focus on the narrow question of whether the Tennessee law, known as SB1, discriminates based on gender and should therefore be subject to stricter review than that applied by a federal appeals court in Cincinnati, which had upheld the law. But while the court’s three democratically appointed justices clearly agreed with her, it was hard to tell if there were two more votes to join them and send the case back to that court for a closer look.

Representing the Biden administration, Prelogar emphasized that SB1 highlights gender dysphoria as the sole basis for banning access to puberty blockers and hormone replacement therapy because young people who are not transgender can still access these drugs for other medical purposes. Because SB1 only prohibits such access when the drugs are used in a way that is inconsistent with the gender a young person was assigned at birth, she explained, it draws lines based on gender. It should therefore be subject to heightened scrutiny, she argued, rather than the more deferential rational review used by the U.S. Court of Appeals for the 6th Circuit to uphold the law.

The court’s three liberal justices echoed Prelogar’s insistence that SB1 be subjected to heightened scrutiny. Justice Sonia Sotomayor told J. Matthew Rice, Tennessee’s attorney general, that the law relies on sex to determine who gets medicine. If a child who appears to be gender neutral goes to the doctor seeking medication to prevent them from growing breasts, Sotomayor said, the doctor must know whether the child is male or female to know whether SB1 prohibits the use of substances.

Rice argued that the application of SB1 is “entirely about medical purposes,” rather than drawing lines based on sex. But Justice Elena Kagan was dubious, telling Rice that the purpose SB1 prohibits is the treatment of gender dysphoria. Pointing to medical purposes, she said, is “an evasion” when the medical purpose of SB1 is “entirely and completely about sex.”

Chief Justice John Roberts expressed concern that the case was different from other cases involving heightened scrutiny, which he described as “simple stereotyping” cases – for example, whether men and women should have equal rights in matters such as adoption and being able to buy liquor . This case, he said, involves “a very special type of investigation” because of the need to review “evolving” medical standards. “We are not the best suited to solve such problems,” he said, suggesting that such decisions be left to the legislature instead.

Prelogar countered that while states have leeway to regulate the practice of medicine, heightened scrutiny should apply when states regulate access to medicine based on a patient’s birth sex. It would “be a pretty remarkable thing,” she said, to say that increased scrutiny would not apply in areas of medical regulation.

Justice Samuel Alito noted that medical groups in European countries have recently been skeptical of the benefits of gender-affirming care for trans teens.

Prelogar pushed back, noting that countries such as Sweden, Finland and Norway had not changed their laws in light of these reports, instead calling for more individualized approaches to gender-affirming care. Similarly, she added that there is no outright ban on the use of hormone therapy and puberty blockers in the United Kingdom.

Kavanaugh told Prelogar that she had made “strong policy arguments” but that Tennessee and other states with similar laws had also made strong arguments. If “the Constitution doesn’t take sides on how to resolve medical and political arguments,” he said, why shouldn’t the courts leave those kinds of questions to the democratic process?

Prelogar reiterated that the Biden administration was not asking the Supreme Court “to take options away from the states.” The court could, she assured Kavanaugh, write a “very narrow” opinion that only holds that when a state prohibits conduct based on gender, heightened scrutiny applies. The court could then send the case back to the 6th Circuit for a reexamination using the stricter standard, which would require the state to show that the law is substantially related to an important government interest.

Sotomayor was more skeptical of submitting the issue to the democratic process. When she asked Rice whether a ruling in Tennessee’s favor would also allow states to block gender-affirming care for adults, she noted that transgender people make up only 1% of the population. It’s “very hard to see how the democratic process” will protect them, she argued, just as it didn’t protect women or people of color for a long time.

Kavanaugh also wanted to know what a decision indicating increased scrutiny applies to SB1 would mean for issues like transgender women in sports and efforts to regulate bathrooms.

Prelogar distinguished the controversy over SB1 from those cases, stressing that giving transgender teenagers access to medication “in no way affects the rights of other people.” The Supreme Court, she suggested, could indicate that its decision does not affect the separate government interest in these cases.

Judge Amy Coney Barrett focused on suggestions that increased scrutiny is appropriate because SB1 discriminates based on transgender status. She pressed both Prelogar and Chase Strangio, who represented the families and who on Wednesday became the first openly transgender attorney to argue in court, about whether there is a long history of legal discrimination against transgender people.

Prelogar indicated that while there was no history of laws discriminating against transgender people, there is a “mass of evidence” of other forms of discrimination against them. Strangio pointed to past bans on transgender service in the military, as well as bans on cross-dressing.

Barrett also emphasized that the court’s ruling on the case would not affect the separate issue (which the court declined to review) of whether SB1 violates the basic rights of parents to make decisions about their children’s medical care.

Justice Ketanji Brown Jackson pulled the questions back to the fundamental role played by the court’s equal protection authority, invoking Loving Virginia1967 Supreme Court case striking down Virginia’s ban on interracial marriage. In that case, she said, whether you could marry depended on your race, even though the law banned interracial marriage for all people, while access to puberty blockers here depends on a patient’s sex as assigned at birth. She noted that Virginia had also made arguments based on science to defend the ban on interracial marriage, and it argued that the court should defer to the legislature. If the court declines to rule that SB1 should be subject to heightened scrutiny, she said, it would be ignoring “bedrock precedent.”

Prelogar stressed that while courts apply increased scrutiny to laws like SB1, it still leaves “real room” for states to regulate. She pointed to West Virginia’s law governing gender-affirming care for trans teens, which she described as imposing “precisely tailored guardrails” — for example, requiring two doctors to diagnose gender dysphoria, along with a mental health screening and consent from both parents and the patient’s primary care physician.

Alito countered that even with such guardrails, increased scrutiny would require “lay judges” to make “complicated medical” decisions that would lead to “endless litigation.”

Strangio emphasized that the law in West Virginia had not faced any challenges, but — especially since Justice Neil Gorsuch was silent throughout the argument — a majority of the justices were not persuaded.

A decision in the case is expected this summer.

This article was originally published on Howe on the Court.