In a huge clash over transgender rights, conservative justices of the Supreme Court seemed inclined to uphold Tennessee’s ban on gender-affirming care for minors during a lengthy hearing on Wednesday.
Throughout the more than two-and-a-half hours of arguments, several justices raised doubts about the Biden administration’s claim of “overwhelming” evidence supporting the benefits of puberty blockers and hormone treatments for adolescents experiencing gender dysphoria.
Justice Samuel Alito challenged U.S. Solicitor General Elizabeth Prelogar, questioning whether she would stand by her statement or consider modifying it in light of recent restrictions on gender-affirming care enacted in several European countries.
Tennessee law faces scrutiny as Biden administration defends gender-affirming care
He pointed to the evolving stance in places like England and Sweden, suggesting that these changes might signal caution for the court in constitutionalizing the issue. Justice Brett Kavanaugh echoed this sentiment, stating that the shifting landscape could serve as a “heavy yellow light, if not red light,” for the justices.
The Tennessee law, known as S.B. 1, prohibits medical providers from offering puberty blockers or hormone treatments to assist transgender minors in aligning their medical care with their gender identity. It also bans gender-affirming surgeries, although that aspect is not being challenged in this case. Violators of the law risk substantial civil penalties of up to $25,000.
The Biden administration’s challenge to Tennessee’s law could influence similar legislation across approximately half of the states, setting the stage for a critical battle that garnered considerable national attention, including protests outside the courthouse on Wednesday.
This case comes to light against a backdrop of increasing anti-transgender rhetoric from Republicans, who have invested millions in campaign ads and proposed legislation limiting transgender individuals’ access to bathrooms, participation in sports, and medical care.
Central to the debate is the level of scrutiny the law should face. The Biden administration argues that Tennessee’s ban constitutes sex discrimination, which historically has required “intermediate scrutiny” from the court, mandating that the government demonstrate a substantial relationship to an important interest. Prelogar stated that S.B. 1 draws lines based on sex to discourage minors from embracing their gender identity.
Tennessee officials countered that the law is based on medical purpose rather than sex, claiming it only needs to meet a lower standard known as “rational-basis review.” Tennessee Solicitor General J. Matthew Rice began his argument by comparing the use of hormones and puberty blockers for medical conditions to their use for psychological distress, stressing that they should be seen differently.
Clarence Thomas, a conservative justice, pressed the government on whether this matter was merely a case of age classification, appearing sympathetic to Tennessee’s viewpoint. Meanwhile, LGBTQ advocates remain hopeful for a positive outcome from the conservative-majority Supreme Court, recalling Justice Neil Gorsuch’s majority opinion in 2020 that ruled firing individuals based on their sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964.
The Biden administration maintains that the rationale used in the case of workplace discrimination should extend to the Equal Protection Clause, suggesting that Tennessee’s ban on gender-affirming care should be invalidated. However, during the arguments, Gorsuch remained largely silent, often reading documents or observing as attorneys presented their cases.
National protests erupt as court weighs critical transgender rights case
The court’s liberal justices showed support for the Biden administration’s references to major medical organizations that deem gender-affirming care safe and essential. Justice Sonia Sotomayor highlighted the clear evidence indicating that certain children genuinely require this treatment.
The challenge against the law is led by the Justice Department, alongside three transgender adolescents in Tennessee, their families, and a doctor specializing in treating gender dysphoria. Representing the plaintiffs, Chase Strangio from the ACLU made history as the first openly transgender attorney to argue a case before the Supreme Court, emphasizing the harm caused by the law.
Strangio argued that S.B. 1 has stripped the plaintiffs of their only effective treatment, which alleviated years of suffering. The high stakes of this case have attracted massive attention, with numerous organizations filing briefs in support of both sides.
Support for the Justice Department’s challenge has come from Democratic attorneys general in 19 states and Washington, D.C., various LGBTQ advocacy groups, 164 Democratic lawmakers, and known figures like Rep.-elect Sarah McBride, the first openly transgender member of Congress, and actor Elliot Page, along with the American Bar Association.
On the opposing side, Tennessee officials are backed by 25 Republican state attorneys general, conservative legal organizations, the United States Conference of Catholic Bishops, and numerous athletes, including swimmer Riley Gaines and former tennis player Martina Navratilova, who have voiced their opposition to competing against transgender women in female sports.
Outside the courthouse, advocates for and against Tennessee’s law held rival rallies that attracted more than 1,000 participants, according to organizers. A ruling in the case, United States v. Skrmetti, is anticipated by the summer.
