The U.S. Supreme Court is considering a case about a Tennessee law that bans gender-affirming medical treatments for transgender adolescents.
The court heard arguments Wednesday in United States v. Skrmetti after the federal government sued Tennessee on equal protection grounds, arguing the law discriminates based on sex. A district court ruling in the government’s favor was overturned by the 6th U.S. Circuit Court of Appeals.
Tennessee Senate Bill 1 bans health care providers from performing or offering to perform “a medical procedure if the performance or administration of the procedure is for the purpose of … [e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or … [t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” The law provides some exceptions to this ban for procedures that address congenital defects, physical injuries, or are continuing a treatment plan that started before the ban took effect. It does not ban health care providers from performing gender-affirming medical procedures on cisgender minors, such as mastectomies for adolescent males diagnosed with gynecomastia.
The federal government, joined by the parents of a Tennessee transgender youth, sued Tennessee Attorney General Jonathan Skrmetti in federal court to overturn the law, arguing the statute violated the 14th Amendment’s guarantee of equal treatment under the law. Generally, in gender discrimination cases challenging laws under the 14th Amendment, the state must show the challenged law furthers an important government interest and does so with means that are substantially related to that interest. This standard of review is called heightened scrutiny.
The petitioners argued that a categorical ban on gender-affirming treatments for minors is not substantially related to the state interest of protecting minors from possible physical or emotional risks of the covered medical treatments. They supported this contention with medical reports asserting that common gender-affirming medical treatments, such as puberty blockers and hormone replacement therapy, do not pose serious risks to transgender adolescents.
Tennessee argued that medical reports, including the ones used as evidence by the petitioners, acknowledge some gender-affirming medical treatments can slightly increase risks of conditions such as infertility and blood clots. The state also argued that the existence of so-called detransitioners—individuals who regret transitioning and later in life realign with their gender assigned at birth—shows that transgender status is not an immutable characteristic such as sex. Accordingly, the state argued, the Supreme Court should not review the law under the heightened scrutiny standard, but instead should use the rational basis standard, which only requires the state to show the government’s actions are rationally related to a legitimate state interest. This level of scrutiny is much lower, and states often prevail when laws are reviewed under the rational basis standard.
At oral argument, the court’s conservative majority seemed poised to agree with the state of Tennessee and uphold SB1. On the matter of whether gender-affirming care is harmful to youths, Chief Justice John Roberts stated, “The Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor.” Justice Clarence Thomas did not seem to accept the petitioner’s argument that this law discriminates based on gender and asked U.S. Solicitor General Elizabeth Prelogar why this wasn’t “simply a case of age classification” because the law only applies to minors.
The liberal justices seemed to perceive the case differently. Justice Ketanji Brown Jackson expressed concern over the idea of leaving this issue to state legislatures. She compared the state’s scientific evidence with that presented on interracial marriage in Loving v. Virginia, which asked the court to “defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages”—an argument the court majority rejected. Justice Sonia Sotomayor discounted the weight the existence of detransitioners should be given as proof of the state’s interest in preventing gender-affirming treatments on minors. “Every medical treatment has a risk, even taking aspirin,” she said. “There’s always going to be a percentage of the population under any medical treatment that’s going to suffer harm.”
The court will issue its decision later this session.
Nicole Ezeh is an associate legislative director in NCSL’s State-Federal Relations Division.