US Supreme Court leans toward allowing youth transgender care ban

WASHINGTON — Conservative US Supreme Court justices signalled on Wednesday (Dec 4) their willingness to uphold a Republican-backed ban in Tennessee on gender-affirming medical care for transgender minors in a major case that could affect various other state laws targeting transgender people.

The court, which has a 6-3 conservative majority, heard arguments in an appeal by Democratic President Joe Biden's administration of a lower court's decision upholding Tennessee's law barring medical treatments such as puberty blockers and hormones for people under age 18 experiencing gender dysphoria.

That is the clinical diagnosis for significant distress that can result from an incongruence between a person's gender identity and the sex assigned at birth.

Some of the conservative justices cited an ongoing debate among experts and policymakers over the potential benefits and drawbacks associated with the treatments.

"Doesn't that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?" conservative Chief Justice John Roberts asked US Solicitor General Elizabeth Prelogar, who argued for the administration.

"It's obviously an evolving debate," conservative Justice Brett Kavanaugh told Prelogar, noting that "countries at the forefront" of gender-affirming treatments for youth are "pumping the brakes."

"If it's evolving like that and changing, and England's pulling back and Sweden's pulling back, it strikes me as a pretty heavy yellow light, if not red light, for this court," Kavanaugh said.

The administration and other challengers have argued that Tennessee's law discriminates against adolescents based on sex and transgender status, violating the US Constitution's 14th Amendment promise of equal protection.

Prelogar said the medications at issue have been safely prescribed for decades to treat many conditions.

But under Tennessee's law, Prelogar said, "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. [The law] categorically bans treatment when, and only when, it's inconsistent with the patient's birth sex."

The case brought transgender rights, a major flashpoint in the US culture wars, to the Supreme Court as Republican US President-elect Donald Trump prepares to take office on Jan 20. Trump vowed during his election campaign to restrict gender-affirming care and transgender sports participation.

Tennessee's law is one of 24 such policies enacted by conservative state lawmakers around the United States. A Supreme Court ruling siding with Tennessee also could make it easier for states to defend laws restricting transgender people in other contexts, including bathroom use and sports participation.

'We want boys to be boys'

Liberal Justice Elena Kagan wondered whether the court should look beyond sex discrimination to how the law specifically treats transgender people differently.

Kagan told Tennessee Solicitor General Matthew Rice, who argued for the state, that the law's purpose "sounds to me like, 'We want boys to be boys, and we want girls to be girls.'" The state's lawmakers appeared to be motivated, Kagan added, by a view that "we think that there's something fundamentally wrong, fundamentally bad about youth who are trying to transition."

Liberal Justice Sonia Sotomayor noted high rates of suicide among minors with gender dysphoria and that some of them "suffer incredibly".

Tennessee's law, passed in 2023, aims to encourage minors to "appreciate their sex" by prohibiting healthcare workers from prescribing puberty blockers and hormones to help them live as "a purported identity inconsistent with the minor's sex."

Providers can be sued and face fines and professional discipline for violations. The law allows use of these medications for other purposes, including to address congenital defects, early puberty or other conditions.

Rice said the law was passed "to protect minors from risky, unproven medical interventions" that often carry "irreversible and life-altering consequences."

"Its application turns entirely on medical purpose, not a patient's sex. That is not sex discrimination," Rice said.

"Just as using morphine to manage pain differs from using it to assist suicide, using hormones and puberty blockers to address a physical condition is far different from using them to address psychological distress associated with one's body," Rice added.

Liberal Justice Ketanji Brown Jackson voiced concern about the court deferring to Tennessee's arguments, saying similar claims were made in favour of state interracial marriage bans, which the court struck down in 1967.

"I'm worried that we're undermining the foundations of some of our bedrock equal-protection cases," Jackson said.

'Measured guardrails'

Prelogar said states have leeway to regulate gender-affirming care, and cited a West Virginia law as one that might stand up to legal scrutiny.

"But here Tennessee made no attempt to tailor its law to the stated health concerns. Rather than impose measured guardrails, [the law] bans the care outright no matter how critical it is for an individual patient," Prelogar said.

ACLU lawyer Chase Strangio, representing transgender adolescents who challenged the law, became the first openly transgender attorney to argue before the Supreme Court.

Questioned by conservative Justice Amy Coney Barrett about transgender discrimination, Strangio said, "I think looking out at the country at the moment there is a significant challenge for transgender people to protect themselves in the political process, where you do have laws excluding transgender people from places where they need to go in all aspects of life."

Two transgender boys, a transgender girl and their parents, as well as a doctor who provides the type of care at issue, sued to challenge the law's legality. The US Justice Department subsequently intervened.

A federal judge blocked the law as likely violating the 14th Amendment. The Cincinnati-based 6th US Circuit Court of Appeals later reversed the judge's preliminary injunction. The Supreme Court is expected to rule by the end of June.