ARGUMENT ANALYSIS

Supreme Court appears ready to uphold Tennessee ban on youth transgender care

This article was updated on Dec. 4 at 4:43 p.m.

During almost two-and-a-half hours of debate on 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 teens, their families, and a Memphis physician, along with the Biden administration, contend that the law violates the Constitution’s guarantee of equal protection and should be examined with the higher degree of legal scrutiny required in such cases. But Tennessee counters that it is simply exercising its power to regulate the practice of medicine for all youth and is not distinguishing based on a patient’s sex.

Several of the court’s conservative justices voiced concerns about whether legislatures, rather than judges, are best suited to make determinations about what they saw as the complicated medical issues underlying 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. Justice Brett Kavanaugh in particular on Wednesday wondered aloud whether decisions about issues like gender-affirming care for transgender teens might be 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 whether the Tennessee law, known as SB1, draws distinctions based on sex and should therefore be subject to a more stringent review than the one applied by a federal appeals court in Cincinnati, which had upheld the law. But although the court’s three Democratic-appointed justices clearly agreed with her, it was difficult to say whether there were two more votes to join them and send the case back to that court for another look.

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

The court’s three liberal justices echoed Prelogar’s insistence that SB1 should be subject to heightened scrutiny. Justice Sonia Sotomayor told J. Matthew Rice, Tennessee’s solicitor 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 medicine to prevent them from growing breasts, Sotomayor said, the doctor has to know whether that child is male or female to know whether SB1 bans the use of drugs.

Rice argued that the application of SB1 “turns entirely on medical purpose,” rather than drawing lines based on sex. But Justice Elena Kagan was dubious, telling Rice that the purpose that SB1 bans is treating gender dysphoria. Pointing to medical purpose, she said, is “a dodge” when the medical purpose of SB1 “is utterly and entirely about sex.”

Chief Justice John Roberts voiced 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 the same rights on issues like adoption and being able to purchase liquor. This case, he said, involves “quite a distinct type of inquiry” because of the need to review “evolving” medical standards. “We’re not the best situated to address issues like that,” he posited, suggesting that such determinations such instead be left to the legislature.

Prelogar countered that although 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 heightened scrutiny wouldn’t apply in areas of medical regulations.

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

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

Kavanaugh told Prelogar that she had presented “forceful policy arguments,” but that Tennessee and other states with similar laws had also advanced forceful arguments. If the “Constitution doesn’t take sides on how to resolve medical and policy arguments,” he said, why shouldn’t the courts leave these 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 holding only that when a state prohibits conduct based on sex, heightened scrutiny applies. The court could then send the case back to the 6th Circuit for another look using that more stringent standard, which would require the state to show that the law is substantially related to an important government interest.

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

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

Prelogar distinguished the dispute over SB1 from those cases, emphasizing that allowing transgender teens to access medicine “in no way affects the rights of other people.” The Supreme Court, she suggested, could indicate that its ruling does not affect the separate government interest in those cases.

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

Prelogar indicated that even if there was no history of laws discriminating against transgender people, there is a “wealth of evidence” of other kinds of discrimination against them. Strangio pointed to earlier bans on service by transgender people in the military, as well as bans on cross-dressing.

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

Justice Ketanji Brown Jackson drew questioning back to the fundamental role of the court’s authority on equal protection, invoking Loving v. Virginia, the Supreme Court’s 1967 case striking down Virginia’s ban on interracial marriage. In that case, she said, whether you could get married depended on your race even as the law banned interracial marriage for all people, while here access to puberty blockers hinges on a patient’s sex as assigned at birth. She noted that Virginia had also made arguments based in science to defend the ban on interracial marriage, and it contended that the court should defer to the legislature. If the court declines to hold that SB1 should be subject to heightened scrutiny, she said, it would be ignoring “bedrock precedent.”

Prelogar stressed that even if the courts apply heightened scrutiny to laws like SB1, it still leaves “real space” for states to regulate. She pointed to West Virginia’s law regulating 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, applying heightened scrutiny would require “lay judges” to make “complicated medical” decisions that would lead to “endless litigation.”

Strangio stressed that the West Virginia law had not faced any challenges, but – particularly with Justice Neil Gorsuch silent throughout the argument – a majority of the justices were not persuaded.

A decision in the case is expected by summer.

This article was originally published at Howe on the Court.