Conservative justices appeared ready to uphold Tennessee’s law that prevents transgender youth from accessing some gender-affirming medical treatments, as the supreme court heard oral arguments in a case challenging the policy on Wednesday.
The plaintiffs in US v Skrmetti, which was first brought by three trans youths and their parents last year, argue that the law violates the equal protection clause of the 14th amendment because of sex-based discrimination. The decision in the case, which is expected in June, could have sweeping implications for trans youth across the country. According to the Human Rights Campaign, 26 states have passed bans on gender-affirming care, affecting 39.4% of trans youth in the US.
Throughout the two-and-a-half hours of oral arguments on Wednesday, conservatives repeatedly pointed to the potential harms of gender-affirming treatments while the court’s liberals painted the law, known as SB1, as a clear-cut case of sex discrimination that could cause severe psychological damage for transgender children.
Arguing in favor of the petitioners, Elizabeth Prelogar, the US solicitor general, specifically noted that the medical treatments targeted by the Tennessee law, such as puberty blockers and hormone therapy, are still available to young patients for reasons other than gender-affirming care.
“The law restricts medical care only when provided to induce physical effects inconsistent with birth sex,” Prelogar said Wednesday. “Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can. If you change the individual sex, it changes the result. That’s a facial sex classification – full stop – and a law like that can’t stand on bare rationality.”
Proponents of bans such as Tennessee’s suggest that they help protect trans children from “experimental” treatments, even though major medical and mental health groups support access to gender-affirming care. The court’s conservatives including the chief justice, John Roberts, asserted that this particular case differed from other decisions related to sex discrimination because of its medical ramifications.
“It seems to me that the medical issues are much more heavily involved than in many of the cases that you look to,” Roberts told Prelogar. “And if that’s true, doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?”
The Tennessee solicitor general, Matthew Rice, argued on behalf of the state and continually attempted to draw a distinction between the use of drugs such as testosterone for gender-affirming care and for other medical needs.
“There has to be a medical purpose for these drugs,” Rice replied. “All of [the plaintiffs’] arguments rest on conflating different medical purposes.”
The court’s three liberal justices grilled Rice on the implementation of the law and challenged his argument that the policy centered on medicine rather than gender.
“The whole thing is imbued with sex,” said Justice Elena Kagan, a liberal. “You might have reasons for thinking that it’s an appropriate regulation, and those reasons should be tested and respect given to them, but it’s a dodge to say that this is not based on sex [and that] it’s based on medical purpose when the medical purpose is utterly and entirely about sex.”
Justice Sonia Sotomayor, a liberal, raised severe concerns about the potential fallout from denying transgender children access to gender-affirming care, including increased risk of suicide. She cited the example of one of the petitioners in the case who recounted vomiting every day and going nearly mute because of their inability to speak in a voice that reflected their identity.
But conservatives kept bringing questions back to potential harms of the treatments, such as possible infertility and regret over pursuing gender-affirming care. In defense of the petitioners, Chase Strangio of the American Civil Liberties Union, who made history on Wednesday by becoming the first known transgender person to argue before the supreme court, noted that many trans individuals remain fertile after receiving hormone therapy and that reported rates of regret over seeking gender-affirming care are low.
“Tennessee claims this sex-based line drawing is justified to protect children, but SB1 has taken away the only treatment that relieved years of suffering for each of the adolescent plaintiffs,” Strangio said.
Justice Ketanji Brown Jackson expressed concern that a ruling upholding the Tennessee law could upend other key decisions based on the equal protection clause, such as Loving v Virginia. In that 1967 case, the supreme court ruled that laws banning interracial marriage violated the 14th amendment.
“I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases,” Jackson said.
“I share your concerns,” Strangio replied. “If Tennessee can have an end run around heightened scrutiny by asserting at the outset that biology justifies the sex-based differential in the law, that would undermine decades of this court’s precedent.”
The case comes as anti-trans activism has become a cause célèbre among hard-right lawmakers and their supporters. Donald Trump’s successful presidential campaign produced an ad accusing Kamala Harris of “letting biological men compete against our girls in their sports”. The widely shared ad concluded: “Kamala is for they/them. President Trump is for you.”
Although the conservative justices have previously proved amenable to Republicans’ arguments in some of the court’s highest-profile cases, at least one recent ruling offers some reason for optimism among trans rights advocates. In the 2020 case of Bostock v Clayton County, the conservatives Neil Gorsuch and Roberts joined the court’s liberals in concluding that Title VII of the Civil Rights Act bars employers from discriminating based on sexual orientation or gender identity.
In another worrisome sign for trans rights advocates, Gorsuch declined to ask questions during the oral arguments on Wednesday, intensifying concern that he will ultimately side with his conservative colleagues.
