The United States Supreme Court heard oral arguments Wednesday morning in a case out of Tennessee concerning bans on the provision of certain medications to minors for the purpose of so-called “gender-affirming care.”
United States v. Skrmetti focuses specifically on restricting the prescription of puberty blockers and cross-sex hormone therapies to minors.
The case has the potential to have broad implications for the legality of other laws governing issues associated with gender identity, such as the participation of biological men in women’s sports and the use of bathrooms that do not align with one’s biological sex.
During oral arguments Wednesday, several Justices appeared skeptical that it was appropriate for them to weigh in on such a controversial matter as opposed to leaving such questions up to the states.
“It seems to me that it’s something where we are extraordinarily bereft of expertise,” said Chief Justice John Roberts.
Along these same lines, Justice Brett Kavanaugh asked: “If the constitution doesn’t take sides, if there’s strong, forceful, scientific policy arguments on both sides in a situation like this, why isn’t best to leave it to the democratic process?””
Justice Ketanji Brown Jackson responded to these suggestions, saying that she was “suddenly quite nervous” at the Justices’ interest in potentially not weighing in on this question.
“That’s a question for the court because it’s a constitutional question,” Justice Jackson said. “I’m worried that we’re undermining the foundation of some of our bedrock equal protection case.”
Interestingly, Justice Neil Gorsuch did not ask a single question throughout the course of Wednesday’s two-and-a-half hours worth of oral arguments, leaving his position on the questions presented unclear.
Although the law at the heart of this challenge — Tennessee’s SB1 from 2023 — also prohibits performing surgeries on minors for this same purpose, those provisions are not at issue in this case.
A group of teenagers who identify as transgender and their parents sued the state of Tennessee, arguing that drugs which would be banned under the law were a “lifeline” for the kids, alleging that it encroaches upon their Fourteenth Amendment guarantee of equal protection.
A federal district court in Tennessee agreed with the families and granted their request for a temporary injunction, concluding that the prohibited medicinal interventions “are safe, effective, and comparable in both risk profile and efficacy to many other forms of pediatric medicine that Tennessee permits.” The judge in that case rejected the state’s arguments that such treatments are risky as “speculative.”
The 6th Circuit Court of Appeals reversed this decision, suggesting that those who identify as transgender are not a “politically powerless” or “immutable” group. This ruling prompted the families, alongside the federal government, to ask the Supreme Court to review the case.
Based on how the Justices accepted this case, they are tasked with determining whether or not the Tennessee law violates the equal protection clause of the Fourteenth Amendment, as the families and federal government allege that the law either permits or bars treatment on the basis of biological sex.
In their appeal to the Court, they cited the 2020 ruling in the case of Bostock v. Clayton County in which a 6-3 majority found that federal employment law barring discrimination “because of sex” simultaneously prohibits discrimination on the basis of sexuality or gender identity because it “necessarily entails discrimination based on sex; the first cannot happen without the other.”
Tennessee countered these claims in their brief to the Court, arguing that the law in question only serves to regulate the practice of medicine by differentiating between adults and minors, as well as by drawing a line based on the purposes for which medication is being used.
Under the law, puberty blockers and hormone therapy is barred from being used as “gender-affirming care” but is permitted for use in treating other conditions, such as precocious puberty.
US Solicitor General Elizabeth Prelogar, arguing on behalf of the federal government against Tennessee, suggested during Wednesday’s oral arguments that allowing the state’s law to stand would open the door for a nationwide ban on such treatments for minors, as well as for similar prohibitions applying to adults.
“I think it’s important to recognize that my friend’s arguments would equally apply to a nationwide ban if this were enacted by Congress,” Prelogar said. “And so, I think that the court should keep that in mind when thinking about the level of scrutiny here.”
Representing the teenagers who identify as transgender and their families was the first openly transgender-identifying lawyer to appear before the Supreme Court, Chase Strangio of the American Civil Liberties Union (ACLU).
Strangio argued that the Tennessee law “bans medical care only when it is inconsistent with a person’s birth sex.”
“An adolescent can receive medical treatment to live and identify as a boy if his birth sex is male but not female,” Strangio said.
When speaking to Strangio, Justice Samuel Alito cited a finding of the Cass Review — named after Dr. Hilary Cass, the pediatrician who conducted it — which indicated that there is “no evidence” that these types of treatments reduce suicide.
The Cass Review, commissioned by England’s National Health Service in 2020, was intended to study children experiencing symptoms of gender dysphoria and who identify as transgender in England. The final report was published earlier this year.
“The report describes what is known about the young people who are seeking NHS support around their gender identity and sets out the recommended clinical approach to care and support they should expect, the interventions that should be available, and how services should be organised across the country,” the website dedicated to the report explains.
In June of 2023, England announced that it would stop routinely offering puberty-blocking drugs to minors as a means by which to treat symptoms of gender dysphoria, although they would still be available to children under exceptional circumstances.
When responding to Justice Alito’s reference to this report, Strangio suggested that the statistic referred only to reductions in “completed suicides” and that these treatments do reduce suicidality.
Justice Jackson drew parallels during today’s oral arguments between the bans included in the Tennessee law and laws that came before the Court in the 1960s concerning interracial marriage, questioning what may have happened if the kind of “classification argument” advanced by Tennessee in this case were made by those in support of upholding bans on interracial marriage.
Justice Elena Kagan pushed back on Tennessee’s contention that the law does not draw lines on the basis of sex, suggesting that the argument is a “dodge.”
“It’s a dodge to say that this is not based on sex,” Justice Kagan said to Tennessee Solicitor General J. Matthew Rice. “The medical purpose is utterly and entirely about sex.”
“Our fundamental point is there is no sex-based line here,” Rice argued.
Rice went on to suggest that the plaintiffs in this case are asking the Court to take the power to regulate medicine away from elected officials.
“Tennessee’s General Assembly reviewed the medical evidence, as well as the evidence-based decisions of European countries that restricted these procedures, and ultimately passed this bipartisan law prohibiting irreversible medical interventions,” Rice explained.
In response, Justice Sonia Sotomayor argued that there is always risk associated with medical interventions before refocusing on the allegations that the law differentiates based on biological sex.
“There is always going to be a percentage of the population under any medical treatment that is going to suffer harm,” Justice Sotomayor said. “So the question in my mind is not do policymakers decide whether one person’s life is more valuable than the millions of others who get relief from this treatment, the question is can you stop one sex from the other.”
Justice Amy Coney Barrett appeared skeptical of arguments against the law on the grounds that it violates the equal protection clause.
“All other suspect classes do have that long de jure [in law] history of discrimination,” Justice Barrett said.
It has been reported by multiple national news outlets that at least twenty-six other states have already enacted laws similar to those in Tennessee.
A ruling is not expected in this case until at the summer of 2025.
Easy fix, make the doctor’s malpractice insurance guarantee $1,000,000+ payout when the mentally unstable test subject decides later to reverse the mutilation. This way nobody can say their rights were violated and believe me doctors wouldn’t do it if they didn’t have insurance and insurance wouldn’t cover if they thought they’d have to pay, they’re funny that way just ask the healthcare guy.