The Supreme Court sounded hesitant Wednesday to second-guess Tennessee lawmakers who banned gender-affirming care for minors, as justices heard warnings that upholding the law could lead to other state or national restrictions on transgender Americans.
During more than two hours of oral argument, members of the court’s conservative wing repeatedly expressed reticence to step into policy disputes over access to transgender care for minors, raising questions about the science behind the care and the fallout for other transgender issues such as access to women’s sports.
The state law bans puberty blockers, hormone therapy and surgery for minors for the purpose of medically transitioning their gender. Challengers have asked the justices to rule that the law unconstitutionally discriminates on the basis of sex because it prohibits access to that care when it is for the purpose of gender transition.
Justice Brett M. Kavanaugh said there were “forceful policy arguments” on both sides of the Tennessee law, including how the ban harmed transgender children but also prevented a small number of children from being harmed by the treatments.
Kavanaugh said that disputes about the medical efficacy of treatments “strikes me as a pretty yellow light or red light” for the court to intervene. “So it seems to me that we look to the Constitution, and the Constitution doesn’t take sides on how to resolve that medical and policy debate,” Kavanaugh said.
Chief Justice John G. Roberts Jr. repeatedly brought up disputes about the medical science behind gender-affirming care and wondered whether it would be better to “leave those determinations to legislative bodies rather than try to determine them ourselves.”
Roberts later said it was “very troubling” that the court could step into an area where they are “bereft of expertise” around complicated questions of medical effectiveness.
And Justice Samuel A. Alito Jr. repeatedly brought up a literature review in the United Kingdom that questioned the efficacy of gender-affirming care and recent decisions by medical bodies in the U.K. and Sweden to restrict access.
Families and doctors of transgender children, as well as the Biden administration, challenged the law, arguing it violates the 14th Amendment’s Equal Protection Clause because it prohibits access to those medicines based on gender transition but not for other conditions such as precocious puberty.
The challengers and major medical organizations have maintained that the treatments are effective, including by reducing depression and suicidal ideation among transgender children.
About two dozen states have similar laws banning access to gender-affirming care for minors, and the case comes to the court as Republicans nationwide, including in Congress, have said they intend to impose more restrictions on the care.
Solicitor General Elizabeth Prelogar told the justices Wednesday that upholding the law, which explicitly states its goal for minors to “appreciate their sex,” allows transgender youth in the state to suffer.
“It doesn’t matter what parents decide is best for their children. 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,” Prelogar said. The Tennessee law “categorically bans treatment when and only when it’s inconsistent with the patient’s birth sex.”
Prelogar pointed out that the treatments are restricted but still available in the U.K. and Sweden rather than the ban that Tennessee imposed. Prelogar and Chase Strangio, attorney for the families challenging the law, both pointed to West Virginia’s law as an example, because the state has restricted gender-affirming care rather than banning access and has yet to face legal challenge.
Prelogar said the justices also could send the case back to the lower court with instructions to make sure the state better justifies with evidence its efforts to restrict the treatments.
J. Matthew Rice, arguing for Tennessee, claimed the treatments were “risky and unproven” and said the law turned on the medical purposes of taking hormones or puberty blockers, rather than a sex classification. Rice also compared gender-affirming care to assisted suicide, lobotomies and eugenics that states had a right to regulate.
“The Equal Protection Clause does not require the states to blind themselves to medical reality or to treat unlike things the same, and it does not constitutionalize one side’s view of a disputed medical question,” Rice said.
Rice argued that the challengers could not eliminate risks from the procedures or the possibility that patients could detransition later, at which point Justice Sonia Sotomayor interrupted to say, “Every medical treatment has risks.”
Sotomayor raised the concern that the same logic could apply to medical care for adults, and that upholding Tennessee’s law would be “licensing states to deprive full adults of the choice of which sex to adopt.”
Sotomayor also downplayed the ability of the democratic process to protect such a small minority of the population if the court doesn’t intervene. “It didn’t protect women for centuries,” she said.
President-elect Donald Trump’s campaign included explicit promises to target transgender care, and members of Congress have said they intend to legislate on the issue when they come into power with a trifecta in January.
Justice Ketanji Brown Jackson said she found similarities between Tennessee’s argument and the ones made by Virginia to try and uphold anti-miscegenation laws in Loving v. Virginia. Jackson pointed out that Virginia pointed to “disputed” medical science about race-mixing to try and justify the law.
“I wonder if Virginia could have gotten away with what they did here by making a classification argument,” Jackson said.
Justice Elena Kagan rejected Tennessee’s effort to categorize the use of hormones and puberty blockers as different medical purposes. “The whole thing is imbued with sex,” Kagan said. “It is a dodge to say it is based on a medical purpose.”
On Wednesday, Rep. Mark E. Green, R-Tenn., praised the state’s stance in a post on social media. “Tennessee is leading the way and standing up for our children. Minors must be protected from these harmful and irreversible medical experiments,” Green posted.
Similarly, Rep. Nancy Mace, R-S.C., posted on X calling gender-affirming care “child abuse.” Mace has previously said she would back legislation to bar access for transgender individuals to the bathrooms of the gender they identify as.
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