The Supreme Court hears oral arguments Wednesday in a dispute over a Tennessee ban on certain medical treatments for transgender children, in a case that could set the boundaries on gender identity policies for states and Congress.
The state’s law prohibits prescription of puberty blockers, hormones and surgery for minors, but only those who are transgender. The justices will weigh whether that violates the Equal Protection Clause of the Constitution because it discriminates on the basis of sex.
The Biden administration, parents and civil rights groups argue the state law discriminates against transgender individuals because it only prohibits treatment for children who sought gender-affirming care, but not for children with other medical conditions such as precocious puberty.
The Tennessee law and similar laws “are inflicting profound harms on transgender adolescents and their families by denying medical treatments that the affected adolescents, their parents, their doctors, and medical experts have all concluded are appropriate and necessary to treat a serious medical condition,” the Biden administration said.
Tennessee officials have argued that the law was not drafted to discriminate based on sex, and instead forbids boys and girls alike from receiving gender-affirming care. The state argued that it is allowed to make its own judgments on the relative risks of medical procedures for certain conditions.
“That is not discrimination. It is an evenhanded ‘regulation of a medical procedure’ that turns on the reason for the procedure’s use,” the state wrote in a Supreme Court brief.
The arguments on constitutional grounds mean the outcome could ripple into rights of transgender individuals nationwide, experts said.
The case, United States v. Skrmetti, comes to the court as Republicans are poised to enter Washington with a trifecta in January after winning both chambers and the White House on a campaign that included efforts to roll back protections for transgender individuals.
The party’s political platform includes bans on transgender athletes competing in sports, and Trump has vowed to issue executive orders prohibiting federal agencies from promoting gender transitions.
Olatunde C.A. Johnson, a professor at Columbia Law School, said that how the justices decide the case could give Congress space to enact legislation on access to gender-affirming care.
“Upholding the law would leave room for Congress to ban gender affirming care. We don’t know how broadly the court would define that. We don’t know what exceptions it would create, but it would leave room for them to legislate in this area in a way that would have impact on even those states that have taken a different approach,” than Tennessee, Johnson said.
Lawmaker views
At a panel in November geared toward restricting gender-affirming care, Rep. Mary Miller, R-Ill., pointed out that Republicans will have a majority in both chambers of Congress next year and be positioned to enact legislation banning gender-affirming care for minors nationwide once Donald Trump is in the White House.
“We have literally no excuse not to pass this,” Miller said.
At the same panel, Sen. Roger Marshall, R-Kan., claimed the procedures were “child abuse” and said he would be looking to find seven Democratic senators who would back national legislation that could then advance in the chamber over an anticipated minority filibuster. Republicans are set to have 53 seats in the chamber next year.
Similarly, Rep. Nancy Mace, R-S.C., who led an effort to restrict bathroom access to transgender individuals at the Capitol, said she intends to push similar restrictions on all federal property and any schools that receive federal funds through legislation.
A brief filed in the case from more than 100 Democratic members of Congress pointed to years of legislation pushed by Republicans as evidence of anti-transgender discrimination. The brief argued that statements from Republicans in state legislatures and Congress “foment discrimination and spread misinformation” about gender-affirming care.
“These public statements suggest that these laws are driven by prejudice, and not by science or the responsibility to represent, and protect the freedom, liberty, and equality of, their constituents — which include transgender people,” the brief said.
Craig Konnoth, a law professor at the University of Virginia who authored an amicus brief in the case, said the justices could use the case to decide broad questions of whether discrimination against transgender individuals counts as discrimination based on sex, or focus more narrowly on questions around access to care for minors.
The decision in the case could “open or close the door for trans rights in general right across the country,” Konnoth said.
The Tennessee law is one of dozens passed by Republican lawmakers in states across the country, many of which were challenged by civil rights groups, parents and the Biden administration.
Each Tennessee law violation carries a $25,000 penalty and potential professional discipline and civil liability, according to court records. Only the puberty blockers and hormones provisions are part of the Biden administration’s challenge.
High court review
The Supreme Court agreed to review a decision from the U.S. Court of Appeals for the 6th Circuit that upheld the Tennessee law and found that discrimination against transgender individuals did not violate the Equal Protection Clause. That decision allowed the law to remain in effect.
The Biden administration asked the justices to toss the law as unconstitutional or send the case back to the 6th Circuit with instructions to examine it under a higher standard.
The brief argued that Tennessee’s stated goal of discouraging gender transition is not a legitimate government interest and its other goals of protecting residents ignored medical science.
A major issue in the case is a 2020 decision from the court in Bostock v. Clay County where a 6-3 majority found that discrimination against transgender individuals violated federal statutory protections against discrimination in the workplace.
Johnson said that there are important nuances that the court may use to decide the Tennessee case differently than Bostock, including the fact that constitutional rather than statutory claims are involved.
“I don’t think Bostock automatically decides this case, even if it really creates an opening for the argument that heightened scrutiny is warranted here, because the law treats like categories differently based on sex,” Johnson said.
Another wrinkle in the case is Trump’s victory in November and the likely reversal of the Justice Department’s position in the case come January. Experts have said such reversals are common, but they may not end up being decisive.
Konnoth said the justices “have a lot of discretion” over how to handle the case — including dropping it without a decision if the Trump administration reverses course.
However, Konnoth pointed out that the issue is likely to keep coming up and the justices already allowed the ACLU, representing aggrieved parents, to participate in oral arguments separate from the government.
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