After over two hours of oral argument yesterday morning, the Supreme Court appeared likely to uphold Tennessee’s ban on “gender-affirming care” for minors.
We previewed the federal government’s Equal Protection challenge to the state law here.
Half the country has similar bans on transgender treatments for minors.
In Tennessee, the law forbids doctors from prescribing puberty blockers and hormone therapy to children until they turn 18. Sex-change surgeries for minors are also prohibited by the statute.
Tennessee only bans these medical interventions when they’re prescribed for gender transitioning, however; it allows their continued use for other medical purposes, such as congenital defects, precocious puberty, disease, and physical injuries.
In other words, the state’s ban is based on age and use, not sex. That fact, Tennessee argues, defeats the government’s sex discrimination argument.
From the official transcript, cleaned up:
J. MATTHEW RICE [for Tennessee]:
Tennessee lawmakers enacted [the statute] to protect minors from risky, unproven medical interventions. The law imposes an across-the-board rule that allows the use of drugs and surgeries for some medical purposes but not for others. Its application turns entirely on medical purpose, not a patient’s sex.That is not sex discrimination.
States draw age- and use-based distinctions for drugs all the time, Rice argued in the State’s brief.
And drawing those distinctions should be left to the legislature. “Politically accountable lawmakers, not judges, are in the best position to assess this evolving medical issue,” he reiterated yesterday.
Chief Justice Roberts agreed: The Constitution leaves the question of how to regulate these evolving treatments “to the people’s representatives rather than to nine people, none of whom is a doctor,” he said.
As the arguments wore on, none of the conservative justices seemed to be crossing over to the federal government’s side.
I was waiting to hear from Justice Gorsuch, but he didn’t make a peep. Not one question. Maybe he’s keeping a low profile, I thought to myself, because it’s kind of his fault we’re at this point.
Gorsuch wrote the majority opinion in Bostock v. Clayton County, the 2020 landmark case where the Court held that an employer who fires an employee “simply for being … transgender” violates Title VII’s ban on sex discrimination.
Bostock was a narrow holding, but, as we wrote here, it flung open the door for other courts to find transgender-identity-based harassment is sex discrimination under Title VII. The Biden Administration also recently seized on Bostock to justify allowing biological men into women’s bathrooms and locker rooms.
So the law regarding sex-discrimination based on gender identity is a hot mess now, and to those on the right, it’s a mess of Gorsuch’s making.
Yesterday morning, Justice Alito rejected applying Bostock in the equal protection context:
JUSTICE ALITO [to Attorney General Prelogar]:
You say that a girl who wants to live like a boy cannot be administered testosterone, but a boy who wants to live like a boy can be administered testosterone. … and that’s one of your major arguments.I take that to be a Bostock-like argument. So my question is: Why should we look to Bostock here? Bostock involved the interpretation of particular language in a particular statute. And this is not a question of statutory interpretation. It’s a question of the application of the Equal Protection Clause of the Fourteenth Amendment … So why should we look to this Bostock-type reasoning here?
The government of course argued that the Tennessee ban does discriminate based on sex, by prohibiting treatments “to allow a minor to identify with or live as a gender inconsistent with the minor’s sex.”
But Rice said they were confusing the different medical uses: “The challengers try to make the law seem sex-based this morning by using terms like ‘masculinizing’ and ‘feminizing.’ But their arguments conflate fundamentally different treatments. 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 it to address psychological distress associated with one’s body.”
The liberal justices focused on motives and feelings. Justice Kagan wanted to take the question out of “the legal box” and talk about what evil really produced these bans—that in fact they are “anti-trans”:
JUSTICE KAGAN:
What seems to have produced this classification is that we want to ban children, treatments that might encourage minors to become disdainful their sex. So we think that there’s something fundamentally wrong, fundamentally bad, about youth who are are trying to transition.
And aren’t there some children who really need these treatments? Justice Sotomayor asked Prelogar. “Some children suffer incredibly with gender dysphoria, don’t they? I think some attempt suicide?”
That is an often-repeated—and rebutted—appeal to compassion to allow transgender treatments, and Prelogar said nothing to disabuse Sotomayor of it, calling the rates of suicide “striking.”
But Alito reminded the room that the UK’s Cass Review found no evidence that gender-affirmative treatments reduce suicide. He said it was distressing to hear such “categorical” statements about medical questions that in fact are “hotly disputed.”
And when there are “strong, forceful scientific policy arguments on both sides in a situation like this, why isn’t it best to leave it to the democratic process?” Justice Kavanaugh asked, coming back to Roberts’ earlier point.
That same argument recently convinced the Seventh Circuit to uphold Indiana’s transgender treatment ban.
And it now seems likely to convince the Court in U.S. v. Skrmetti. Its decision is expected in June.
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