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Supreme Court seems ready to uphold ban on gender-affirming care for minors
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The Supreme Court's the conservative majority on Wednesday seemed very likely to uphold Tennessee's ban on gender-affirming care for minors.
In the last few years, fully half of the states have adopted similar bans, and Wednesday's case provided the first test of those laws. Three Tennessee families—and the Biden administration—are challenging the ban, which bar minors who say their gender doesn't align with the sex at birth, from having access to puberty blockers and medications needed to transition to the opposite sex.
Solicitor General Elizabeth Prelogar led off on Wednesday, telling the justices that the state cannot eliminate medically approved treatments for gender dysphoria while allowing the same medical treatments for minors suffering from other conditions, from early onset puberty to endometriosis.
Prelogar said the state law singles out one particular use in its ban.
"It doesn't matter what parents decide is best for their children," she said. "It doesn't matter what patients would choose for themselves. And it doesn't matter if doctors believe this treatment is essential for individual patients."
She got immediate push-back from the court's conservatives.
Justice Clarence Thomas went first, questioning whether the law is "simply a case of age classification when it comes to these treatments, as opposed to a ban?"
Chief Justice John Roberts followed up by noting that this ban involves medical judgments, and studies conducted outside the U.S.
"Doesn't that make a stronger case, for us to leave those determinations in the legislative bodies, rather than try to determine for ourselves," he asked.
Justice Samuel Alito reeled off a list of studies from Sweden, Finland, and the U.K., studies that he said show the damaging effects of these treatments for minors. In light of that, he asked Prelogar if she would like to modify her claim that there is "overwhelming evidence" of the benefits of gender-affirming treatment.
No, replied Prelogar, noting that while there is a lot of debate about how to deliver this care, "there is consensus that these treatments can be medically necessary" for some minors.
Pressed by Justice Elena Kagan about whether all state laws would have to be struck down under her theory, Prelogar said no.
"We do think there is a real space for states to regulate here, and I point to the example of West Virginia," added Prelogar. "West Virginia was thinking about a total ban like this one, but then the Senate Majority Leader, who's a doctor, looked at the underlying studies, and the West Virginia legislature changed course and imposed a set of guardrails that are far more precisely tailored to concerns surrounding the delivery of this care."
Justice Brett Kavanaugh raised concerns about minors who undergo these transition treatments, but later have regrets. Kavanaugh, who used to supervise his daughter's basketball team, also asked Prelogar: "If you prevail here, what would it mean for women's and girls' sports?" Those questions are different, responded Prelogar, because they pit the rights of trans kids to participate in sports, against the rights of cis gender kids concerned that they are being disadvantaged on the field.
Both Justice Kavanaugh and Justice Amy Coney Barrett asked about parental rights to determine their kids medical treatments, and noted that even if the trans kids lose this case, the parents can come back with a fresh challenge based on parental rights.
Next up to the lectern and representing the trans kids was Chase Strangio, the first openly trans lawyer to argue before the court. He too faced questions about whether these are policy, as opposed to legal, questions. The chief justice focused on whether the Supreme Court even has the authority to address these types of questions.
"My understanding," said Roberts, "is that the Constitution leaves that question to the people's representatives rather than to nine people, none of whom is a doctor."
Strangio countered that the role of the courts is to determine whether the law is narrowly tailored enough. Strangio said the Tennessee legislature had adopted "a blunderbuss ban, overriding the careful judgment of parents who love and care for their children and the doctors who have recommended the treatment."
Defending the ban, Tennessee Solicitor General Matthew Rice said the law "allows the use of drugs and surgeries for some medical purposes, but not for others." Thus, he maintained, the law is based on purpose, not sex.
But, Justice Kagan wasn't buying that argument at all. "The prohibited purpose here is treating gender dysphoria," she countered. "The whole thing is imbued with sex… It's a dodge to say its not based on sex."
The court's other two liberals followed up. Justice Sonia Sotomayor asked whether, given Tennessee's logic, the state could block gender-affirming treatment for adults, too. Rice responded in the affirmative, saying that "democracy is the best check on potentially misguided laws." Justice Sotomayor shot back that "when you're 1% of the population or less, [it's] very hard to see how the democratic process is going to protect you."
Throughout arguments, Justice Ketanji Brown Jackson raised concerns about the bigger consequences of the court upholding Tennessee's law, saying: "I'm worried that we're undermining the foundations of some of our bedrock equal protection cases."
Justice Neil Gorsuch, usually quick with questions, had none on Wednesday. He is the author of the court's only decision on trans rights, upholding those rights in the context of employment.
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