WASHINGTON — The Supreme Court is currently reviewing its second significant case regarding transgender rights, focusing on a Tennessee law that prohibits gender-affirming medical treatments for minors. The justices’ ruling, which is anticipated to take several months to be issued, may set a precedent for similar legislation across approximately 25 other states, alongside various initiatives affecting the regulation of transgender individuals, including participation in sports and access to restrooms.
This case comes before the Supreme Court, which has a conservative majority, following a presidential election where former President Donald Trump and his supporters expressed intentions to retract protections for transgender individuals. In a prior ruling four years ago, the court favored Aimee Stephens, who was dismissed from her position at a Michigan funeral home after announcing she was a transgender woman. The justices concluded that transgender individuals, along with gay and lesbian individuals, are safeguarded under a crucial federal civil rights statute that prohibits sex discrimination in employment.
The Biden administration, along with the families and healthcare providers challenging the Tennessee statute, is advocating for the justices to utilize the same analytic principles endorsed in the previous case, which emphasized that “sex plays an unmistakable role” in employment decisions regarding the punishment of transgender individuals. At the heart of the Tennessee case lies the question of whether the law contravenes the Equal Protection Clause of the 14th Amendment, which mandates equal treatment for people in similar situations.
Tennessee’s legislation prohibits puberty blockers and hormone treatments for transgender minors, though lawyers for the families argue that the ban is not applied universally. The lead counsel for the case, Chase Strangio from the American Civil Liberties Union, notably becomes the first openly transgender person to present arguments before the Supreme Court. The administration contends that determining if any treatments should be withheld from a specific minor necessitates consideration of that minor’s sex.
Solicitor General Elizabeth Prelogar stated in her court documentation, “That is sex discrimination.” The state of Tennessee admits that the treatments they have banned for transgender minors may still be prescribed for other medical reasons. However, it denies discriminating based on sex, arguing instead that lawmakers acted to safeguard minors from potential risks associated with “life-altering gender-transition procedures.”
Jonathan Skrmetti, Tennessee’s Attorney General, wrote in the state’s Supreme Court brief that the law establishes a distinction between minors seeking gender transition drugs and those seeking medications for other medical conditions, asserting that both boys and girls fall into each category. While the challengers reference the 2020 decision in Bostock v. Clayton County as supportive to their claim, Tennessee points to the court’s significant Dobbs ruling from 2022, which dissolved national protections for abortion and delegated the authority back to state control.
The two sides have contested in their legal documents what level of scrutiny the court should apply to this case. This distinction is crucial; the lowest level of scrutiny, rational basis review, often upholds most laws. Indeed, the federal appeals court in Cincinnati, which permitted the law to take effect, rationalized that lawmakers acted within their authority to oversee medical procedures. This appeals court overruled a lower trial court that invoked a higher standard of review known as heightened scrutiny, applicable in sex discrimination cases, which requires the state to outline a significant objective and demonstrate that the law effectively supports that aim.
If the Supreme Court opts for heightened scrutiny, they may remand the case back to the appeals court for further consideration. Gender-affirming healthcare for youths is endorsed by major medical organizations, such as the American Medical Association and the American Academy of Pediatrics. Despite this, Tennessee cites health authorities from countries like Sweden, Finland, Norway, and the United Kingdom, claiming that such medical treatments carry substantial risks with uncertain benefits.
It’s noteworthy that none of these countries have instituted bans akin to Tennessee’s, and individuals there continue to have access to treatment, as Prelogar pointed out in her response. Among those contesting the state law is the Williams family from Nashville. Brian Williams shared that due to puberty blockers and hormone treatments, his transgender daughter, L.W., is now a “16-year-old looking toward her future, creating her own music, and exploring college options.” However, due to the ban in Tennessee, she must travel to another state to access the healthcare that her family and doctors deem appropriate for her needs.