The Supreme Court considers the challenge to the ban on transgender health services for minors

DISCUSSION OF CASE

The Supreme Court on Wednesday will hear a challenge to a Tennessee law that bans the use of puberty blockers and hormone therapy for transgender teenagers. The dispute could be one of the most significant decisions of the term. And with similar laws in 23 other states, the court’s ruling is likely to have broader implications for the protections available to transgender people across the country.

Passed in 2023, the Tennessee law — known as SB1 — declares that the state has a “compelling interest in encouraging minors to appreciate their gender, particularly as they enter puberty.” SB1 prohibits doctors from performing surgery (a ban not at issue in the courts) or prescribing puberty blockers and hormone therapy to confirm the gender identity of transgender teenagers. However, the law allows the use of the same treatments for other purposes. For example, puberty blockers can be used to treat adolescents who experience early puberty, while hormone therapy can be used for adolescents for whom puberty is delayed.

Three transgender teenagers and their parents filed a lawsuit against the state officials responsible for enforcing the ban. Stressing that the drugs now barred by SB1 have been a “lifeline” for the teenagers, they argued that the law violates the Constitution’s guarantee of equal protection. The federal government joined the suit, relying on a federal law that allows it to do so in cases involving equal protection “if the attorney general certifies that the case is of general public importance.”

A federal district court in Nashville ruled that SB1 likely violates equal protection rights and granted the challengers’ request to temporarily put the ban on hold. U.S. District Judge Eli Richardson concluded that puberty blockers and hormone therapy “are safe, effective, and comparable in both risk profile and effectiveness to many other forms of pediatric medicine that Tennessee allows,” and he rejected the state’s arguments that such treatments are risky as f .eg “speculative.”

A divided US Court of Appeals for the 6th Circuit reversed and upheld the ban. It applied a standard known as “rational basis” review, which looks at whether the law is rationally related to a legitimate government interest.

The federal government and the families came to the Supreme Court, asking the justices to review the 6th Circuit’s decision and rule. The justices granted only the Biden administration’s request for review — which, unlike the families’ petition, did not ask the court to rule on whether SB1 violates parents’ rights to make decisions about their children’s medical care — but a lawyer for the families will also argue in court about . Wednesday.

As the case comes to court, the focus on both sides is what standard of review the lower courts should have used to determine whether SB1 is constitutional—and, in particular, whether SB1 discriminates based on sex.

The Biden administration and the families argue that the ban on puberty blockers and hormone therapy “explicitly classifies based on sex” and is therefore subject to heightened scrutiny, a more demanding level of scrutiny than the rational review applied by the 6th Circuit.

They reason that SB1 distinguishes between medical treatment that is permitted or excluded based on the patient’s sex as assigned at birth: for example, a transgender adolescent cannot receive puberty blockers or hormones, but a boy who is not transgender can. To put it another way, they say, “there is no way to determine whether these treatments should be withheld from a particular minor ‘without regard to the minor’s sex'” as assigned at birth.

The federal government and the families also point to the Supreme Court’s 2020 decision in Bostock v. Clayton Countyin which the court ruled 6-3 that federal employment laws that prevent discrimination “on the basis of sex” protect gay, lesbian and transgender employees. In that case, Justice Neil Gorsuch wrote for the majority that discrimination against LGBT employees “necessarily involves discrimination based on sex; the former cannot occur without the latter.” The same reasoning fully applies to the Constitution’s equal protection clause.

SB1 should also be subject to increased scrutiny, the federal government and the families argue, because transgender people are what’s known as a “quasi-suspect” class. In the United States, about 0.5% of adults and 1.4% of teenagers ages 13 to 17 identify as transgender.

The federal government explains that “[t]searched individuals have historically been and continue to be subject to discrimination; transgender status has no relation to a person’s ability to contribute to society; transgender individuals are a discrete and identifiable minority; and transgender individuals have not been able to defend their rights meaningfully through the political process in much of the country.”

Tennessee counters that SB1 simply regulates the practice of medicine in two different ways. First, it says, SB1 draws a line between adults and minors—something not uncommon in medicine or the law. Second, it draws a line based on the purpose for which medical procedures are used: It prohibits the use of puberty blockers and hormone therapy for gender-affirming care, but allows them to be used for other purposes, such as early puberty and birth defects.

SB1 does not classify based on gender, the state insists. Instead, a distinction is simply made between minors who want puberty blockers and hormone therapy for gender confirmation care, and minors who would use them for other purposes. “And boys and girls fall on both sides of that line,” the state emphasizes. That the absence of any classification based on gender is reflected in the remedy sought by the Government, the State proposes. The Biden administration wants a court order requiring Tennessee to allow the use of puberty blockers and hormones for transgender teenagers, rather than an order that treats boys and girls the same.

And even if SB1 drew classifications based on transgender status (which it does not), the state concludes that the challengers’ transgender status “does not clearly warrant expanding the list of quasi-suspect classifications for the first time in nearly 50 years.”

The federal government and the families are urging the justices to send the case back to the appeals court so it can apply heightened scrutiny to SB1 for the first time.

But alternatively, they continue, the Supreme Court could go further and hold that SB1 fails heightened scrutiny because the law is not substantially related to an important government interest. First, the State has not argued that trying to discourage people from identifying as transgender is such an interest. And the state cannot point to an interest in protecting the health and welfare of teens, they point out, since the legislature failed to give any “meaningful consideration” to the benefits of gender-affirming care for teens. Major medical groups, including the American Medical Association and the American Academy of Pediatrics, they note, agree that puberty blockers and hormone therapy may be appropriate treatments for trans teens. Studies have shown that the use of puberty blockers and hormone therapy can reduce the number of suicides among transgender people, they add.

Second, and in any case they continue, SB1 fails scrutiny because it is both under- and over-inclusive. It’s under-inclusive, they argue, because it bans puberty blockers and hormone therapy for a very small group of young people while allowing them to others — who would face the same risks the state says it’s trying to avoid. And it’s far too inclusive, because it bans puberty blockers and hormone therapy for transgender teens in all cases, without considering other limits — such as waiting periods or licensing requirements for health care providers — that might address some of the concerns the state has raised. to justify the law. Indeed, the families point out that other states, such as West Virginia and Nebraska, impose more tailored restrictions, such as requiring two separate health care providers, one of whom must specialize in mental health care, to certify in writing that teens have severe gender dysphoria and that treatment is necessary to treat their psychiatric symptoms.

Noting that the Supreme Court has given state lawmakers “broad discretion to enact legislation where there is medical and scientific uncertainty,” the state insists that SB1 can survive even if heightened scrutiny is applied. SB1, it writes, advances two distinct compelling government interests: protecting the physical and mental health of minors and ensuring “the integrity and ethics of medical practice.”

The state retracts arguments that SB1 is both under- and over-inclusive and is therefore not significantly related to the state’s achievement of its goals. Regarding underinclusiveness, Tennessee reasons, the government assumes that prescribing puberty blockers and hormones always carry the same risks. But the risks differ depending on who takes them, the state argues: Giving teenagers these drugs as gender-affirming care is not the same as giving them for other purposes.

And as for the argument that SB1 is overly inclusive, the state counters that SB1 leaves open the possibility of other, less invasive treatments—specifically, “the vigilance and psychotherapy methods that were prevalent until the last decade.”

One point both sides agree on is that the court’s ruling could have ripple effects far beyond the Tennessee law or even gender-affirming care for trans teens. If the 6th Circuit’s decision is allowed to stand, the families tell the court, its reasoning will not only deprive trans teens in this case “of the same medical care that has allowed [them] to grow and thrive,” but it “would effectively immunize all forms of government discrimination against transgender people from meaningful constitutional scrutiny.”

Tennessee argues that if the government and the families prevail, it could also affect other laws restricting “access to women’s bathrooms, women’s locker rooms and women’s sports,” which have become touchstones in the culture war for conservative politics in recent years. Accepting the government’s theory, it says, “would perversely erode women’s rights and jeopardize landmark statutes that protect women’s equal access to schools, podiums and more.”

A decision in the case is expected in the summer of 2025.

This article was originally published on Howe on the Court.