CASE PREVIEW

Supreme Court to hear challenge to ban on transgender health care for minors

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 teens. 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.

Enacted in 2023, the Tennessee law – known as SB1 – declares that the state has a “compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty.” SB1 prohibits doctors from performing surgery (a ban not at issue before the justices) or prescribing puberty blockers and hormone therapy to affirm the gender identity of transgender teens. The law, however, allows the use of the same treatments for other purposes. For example, puberty blockers may be used to treat young people experiencing early puberty, while hormone therapy can be used for young people for whom puberty is delayed.

Three transgender teens and their parents filed a lawsuit against the state officials responsible for enforcing the ban. Emphasizing that the drugs now barred by SB1 have been a “lifeline” for the teens, they argued that the law violates the Constitution’s guarantee of equal protection. The federal government joined the case, 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 determined that SB1 likely violates the right to equal protection 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 efficacy to many other forms of pediatric medicine that Tennessee permits,” and he rejected the state’s arguments that such treatments are risky as “speculative.”

A divided U.S. 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 weigh in. The justices granted only the Biden administration’s petition for review – which, unlike the families’ petition, did not ask the court to decide whether SB1 violates the right of parents to make decisions about their children’s medical care – but a lawyer for the families will also argue at the court on Wednesday.

As the case comes to the 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 draws distinctions based on sex.

The Biden administration and the families contend 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-basis review that the 6th Circuit applied.

They reason that SB1 distinguishes between medical care that is permitted or barred based on the sex of the patient as assigned at birth: A trans male teenager, for example, 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 must be withheld from any particular minor ‘without considering 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 County, in which the court held 6-3 that federal employment laws that bar discrimination “because of sex” protect gay, lesbian, and transgender employees. In that case Justice Neil Gorsuch wrote for the majority that discrimination against LGBT employees “necessarily entails discrimination based on sex; the first cannot happen without the other.” The same reasoning applies fully to the Constitution’s guarantee of equal protection clause.

SB1 should also be subjected to heightened scrutiny, the federal government and the families contend, because transgender people are what is known as a “quasi-suspect” class. In the United States, about 0.5% of adults and 1.4% of teens, ages 13 to 17, identity as transgender.

The federal government explains that “[t]ransgender individuals have historically been and continue to be subject to discrimination; transgender status bears 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 meaningfully vindicate their rights 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 that is not uncommon in medicine or the law. Second, it draws a line based on the purpose for which medical procedures are being used: It prohibits the use of puberty blockers and hormone treatment for gender-affirming care, but it allows them to be used for other purposes, such as precocious puberty and congenital defects.

SB1 does not classify based on sex, the state insists. Instead, it simply distinguishes between minors who want puberty blockers and hormone therapy for gender-affirming care and minors who would use them for other purposes. “And boys and girls fall on both sides of that line,” the state stresses. That absence of any classification based on sex is reflected in the remedy that the government seeks, the state suggests. The Biden administration wants a court order requiring Tennessee to allow the use of puberty blockers and hormones for transgender teens, rather than an order that would treat boys and girls the same.

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

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

But in the alternative, they continue, the Supreme Court could go ahead and hold itself 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 emphasize, when 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 can be appropriate treatments for trans teens. Studies have shown that the use of puberty blockers and hormone therapy can reduce the rate of suicide among transgender people, they add.

Second, and in any event, they continue, SB1 fails heightened scrutiny because it is both under- and overinclusive. It is underinclusive, they contend, because it prohibits puberty blockers and hormone therapy for a very small group of young people, while allowing them for others – who would face the same risks that the state says it is trying to avoid. And it is overinclusive 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 that the state has raised to justify the law. Indeed, the families point out, other states, like 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 the teens have severe gender dysphoria and that the treatment is necessary to treat their psychiatric symptoms.

Stressing that the Supreme Court has given state legislatures “wide discretion to pass 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 different compelling government interests: protecting the physical and psychological health of minors, and safeguarding “the integrity and ethics of medical practice.”

The state pushes back against arguments that SB1 is both under- and overinclusive and therefore not substantially related to the state’s achievement of its objectives. 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 is taking them, the state contends: Giving teens these drugs as gender-affirming care is not the same as giving them for other purposes.

And regarding the argument that SB1 is overinclusive, the state counters that SB1 does leave open the possibility of other, less invasive treatments – specifically, “the watchful-waiting and psychotherapy methods that predominated until the past decade.”

One point on which both sides agree is that the court’s ruling could have ripple effects well 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 the trans teenagers in this case of “the very medical care that has allowed [them] to grow and thrive,” but it “will effectively immunize all forms of government discrimination against transgender people from meaningful constitutional scrutiny.”

Tennessee contends 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” that have become culture-war touchstones for conservative politics in recent years. Accepting the government’s theory, it says, “would perversely erode women’s rights and jeopardize landmark statutes protecting women’s equal access to schools, winners’ podiums, and beyond.”

A decision in the case is expected by summer 2025.

This article was originally published at Howe on the Court.