Supreme Court leans toward upholding Tennessee’s restrictions on gender-affirming care

The Supreme Court’s conservatives appeared to lean toward upholding Tennessee’s ban on gender-affirming care for minors in a blockbuster showdown over transgender rights Wednesday.

Over 2 1/2 hours of arguments, several conservative justices questioned the Biden administration’s assertion of “overwhelming” evidence that the benefits of giving some adolescents experiencing gender dysphoria puberty blockers and hormone treatments outweigh the risks.

“I wonder if you would like to stand by this statement, or if you think it would now be appropriate to modify that and withdraw the statement,” said Justice Samuel Alito,repeatedly referencing several European countries that have recently moved to restrict some gender-affirming care

“If it’s evolving like that and changing, and England is pulling back and Sweden is pulling back, it strikes me as a pretty heavy yellow light, if not red light, for this court to come in, the nine of us, and constitutionalize the whole area,” Justice Brett Kavanaugh similarly noted.
 

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Opponents of U.S. laws banning gender-affirming care for trans youth have said prohibitions imposed by Republican-led states go much further than European policies, which limit but do not categorically ban care. 

“This is no ordinary medical regulation,” Pratik Shah, head of Supreme Court and appellate practice at Akin Gump, said of Tennessee’s law.

Tennessee’s law, S.B. 1, prohibits medical providers from administering puberty blockers or hormone treatments for the purpose of enabling a transgender minor to live consistent with their gender identity. The law also bans gender-affirming surgeries, though that provision is not at issue before the high court.  Providers who violate the law can face $25,000 civil fines. 

The administration’s challenge of Tennessee’s restrictions stands to impact similar laws passed in roughly half the country, setting up a high-stakes battle that has attracted national attention and demonstrations outside the courthouse Wednesday.

Here’s my speech outside SCOTUS. As expected the trans activists tried to sabotage us by being loud and obnoxious. That’s all they can do now. They’re losing on every front. They can only scream impotently into the void while we burn their ideology to the ground. Fine with me. pic.twitter.com/ZU9Xj0oxRj

— Matt Walsh (@MattWalshBlog) December 4, 2024

The dispute comes as Republicans increasingly lean into anti-transgender messaging, with millions spent on related campaign ads this cycle and a blitz of recent legislation restricting the bathrooms transgender Americans use, sports teams they join and medical care they receive. 

At the heart of the current battle is what level of scrutiny the law should receive.

The Biden administration asserts Tennessee’s ban should be treated as a form of sex discrimination. For decades, the court has subjected such cases to “intermediate scrutiny,” which requires the government to show the law is substantially related to an important interest.

“S.B. 1 regulates by drawing sex-based lines and declares that those lines are designed to encourage minors to appreciate their sex,” U.S. Solicitor General Elizabeth Prelogar said.

Tennessee said its law classifies by medical purpose, not sex, so it only needs to clear a lower level of scrutiny, known as “rational-basis review.”

“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,” Tennessee Solicitor General J. Matthew Rice began his argument.

“Why isn’t this simply a case of age classification?” conservative Justice Clarence Thomas pressed the government, sympathizing with Tennessee’s position.

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LGBTQ advocates are holding out hope for a repeat surprise victory at the conservative-majority Supreme Court after Justice Neil Gorsuch, President-elect Trump’s first appointee, wrote the court’s majority opinion in 2020 ruling that an employer firing someone based on their sexual orientation or gender identity violates Title VII of the Civil Rights Act of 1964.  

The Biden administration insists the same reasoning applies to the Equal Protection Clause and Tennessee’s gender-affirming care ban should be invalidated. 

But during Wednesday’s arguments, Gorsuch didn’t ask a single question. He spent most of the time reading documents or holding a pen to his chin as he listened to the attorneys.

The court’s liberals, meanwhile, sympathized with the Biden administration’s citation of major medical organizations that consider gender-affirming care safe and medically necessary. 

“The evidence is very clear that there are some children who actually need this treatment, isn’t there,” Justice Sonia Sotomayor said.

The Justice Department is challenging the law, alongside three transgender adolescents in the state, their parents and a Tennessee doctor who treats gender dysphoria.

The case’s high stakes have attracted significant attention, with dozens of outside groups filing briefs backing each side. 

The Justice Department’s challenge drew support from Democratic attorneys general in 19 states and Washington, D.C.; various LGBTQ advocacy groups; 164 Democratic lawmakers; Rep.-elect Sarah McBride (D-Del.), who is set to become the first openly transgender member of Congress; actor Elliot Page; and the American Bar Association.  

Tennessee officials are backed by 25 Republican state attorneys general; various conservative legal groups; the United States Conference of Catholic Bishops; and dozens of athletes who oppose against transgender women competing in women’s competition, including former swimmer Riley Gaines and former tennis star Martina Navratilova. 

Competing rallies — one organized by conservative organizations including the Alliance Defending Freedom and Do No Harm, and one held by the American Civil Liberties Union and Lambda Legal — drew upward of 1,000 people outside the court Wednesday.
 

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