US Supreme Court to Hear Arguments in Tennessee’s Transgender Care Ban Case

US Supreme Court to Hear Arguments in Tennessee’s Transgender Care Ban Case

One of the year’s most consequential cases on the United States Supreme Court docket is set for oral argument tomorrow. U.S. v. Skrmetti, the federal government’s challenge to Tennessee’s “gender-affirming care” ban under the Equal Protection Clause of the 14th Amendment. The Court’s decision, expected in June, will likely set precedent not only for gender-transitioning medical interventions, but also for transgender rights.  Scores of civil liberties and interest groups have weighed in with amicus briefs staking out their positions in what promises to be a legal battle royale, starting at 10:00 AM, Eastern time.

Nearly half the states in the country have enacted similar bans on these mutilating, sterilizing sex-transition treatments, as we’ve covered here and here.

Until recently, when a child presented with gender dysphoria, doctors “watched  and waited,” cautiously allowing the patient to naturally progress through puberty while treating them with counseling and psychotherapy rather than sex-altering drugs. After all, most kids—85% according to the study cited in the state’s brief—grow out of it. Why risk permanent damage to their health for a condition that almost always goes away, given some time?

Proponents of gender-affirming care say it’s because without it, they might come to kill themselves. The government takes that position here, pointing to evidence that, “left untreated, gender dysphoria can result in severe physical and psychological harms” —even suicide.

But Tennessee argues in its brief that there are no studies to prove a reduction in suicide rates due to these medical interventions, citing to research that shows they can even make mental distress worse.

Notwithstanding these conflicting viewpoints—and based on evidence that has been challenged as fraudulent and misleading—the American Academy of Pediatrics recently tossed aside the traditional protocol. Doctors now follow an aggressive, no-questions-asked policy of  “affirming” a child’s stated desire to change genders by prescribing puberty-blocking drugs, cross-sex hormones, and irreversible surgeries.

Tennessee lawmakers took note and were alarmed. They heard the firsthand accounts of devastated detransitioners who grew to regret these life-altering treatments, and enacted legislation to prohibit them last year.

The state 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.

However, the statute only bans these medical interventions when they’re prescribed for gender transitioning; it allows their continued use for other medical purposes, such as congenital defects, precocious puberty, disease, and physical injuries. The state argues that it’s not “discrimination” to say the drugs can be prescribed for one reason but not another.

And the Tennessee legislature acted entirely within its authority to do so, it argues. States have the power to regulate medicine by protecting minors from risky, unproven gender-transition interventions, especially where there is medical and scientific uncertainty.

Dr. Hilary Cass, the leader of the United Kingdom’s landmark study of transgender care, was struck by that uncertainty earlier this year. The four-year review, cited by Tennessee in its brief and covered here, found the evidence to support gender-transition interventions “remarkably weak,” and emphasized that the benefits of using “puberty blockers and masculinizing/feminizing hormones in adolescents are unproven.”

“I can’t think of another area of pediatric care,” Dr. Cass remarked, “where we give young people a potentially irreversible treatment and have no idea what happens to them in adulthood.”

Nor does the ban violate the Equal Protection clause by discriminating based on sex, Tennessee argues in response to the government. The state law contains no sex classification that warrants heightened review. “It creates two groups: minors seeking drugs for gender transition and minors seeking drugs for other medical purposes. Each of these groups ‘includes members of both sexes,’ so no facial sex classification exists.”

In other words, just because the law mentions sex doesn’t mean it discriminates based on sex.

That same argument succeeded in the Seventh Circuit where the court upheld a similar ban, and in a recent federal district Tennessee case we covered here.

Speaking of arguments, it will be very interesting to hear how the parties debate Bostock v. Clayton County, where the Court held that an employer who fires an employee “simply for being … transgender” violates Title VII’s ban on sex discrimination. Ever since the Court decided Bostock, transgender advocates have trotted it out to support sex-dicrimination claims in many other contexts. So it came as no surprise when the government did so in this case. Tennessee argues the Court should confine Bostock’s Title VII reasoning to Title VII, and not extend it to the Equal Protection Clause.

But, but what about “the Science”? The government argues that Tennessee can’t defend a categorical ban on transgender medical treatments supported by the “overwhelming consensus” of the medical community.

The state calls this claim “hard to take seriously.”

And it is, especially given the findings in the Cass Review, which have prompted soul-searching in other countries as well, cited in the state’s brief. Tennessee points out how European health authorities that pioneered these treatments have reversed course because of the uncertainty surrounding their efficacy and safety. Sweden, Finland, Norway, have now joined the United Kingdom in a return to sanity. And since the court filing, New Zealand no longer claims that puberty blocker drugs are a “safe and fully reversible” medicine for children; it has announced a “new precautionary approach” to treatment. Finally, last month, Chilean lawmakers voted to end public funding of hormonal treatments for minors.

A “concensus” that ignores these dissenting viewpoints is a “manufactured” one, the state argues convincingly.

Nor should the Tennessee legislature defer to the say-so of politically driven medical organizations like WPATH. Its credibility, like that of the AAP, is now “shot” by recent revelations its policies were driven “by ideology not science.”

Detransitioners, including those whose mounting lawsuits we’ve covered here, now realize they were the victims of those policies—treated like guinea pigs to test out a reckless, unscientific treatment protocol. Tennessee says the Constitution does not compel lawmakers to “shield their eyes from detransitioners’ experiences. And no amount of rose-colored ink overwrites the documented downsides of puberty blockers and cross-sex hormones.”

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