The Supreme Court on Wednesday heard oral arguments in a high-profile case regarding whether states can ban minors from receiving gender transition medical care under the Equal Protection Clause of the 14th Amendment, a closely-watched case that could impact the care and treatment for young people in at least half of U.S. states.
The case, United States v. Skrmetti, centers on a Tennessee law that bans gender-transition treatments for adolescents in the state. The law, passed in March 2023, also takes aim at health care providers in Tennessee who continue to provide gender-transition treatments to transgender minors, opening them up to fines, lawsuits and other liability.
At issue in the case is whether Tennessee’s Senate Bill 1, which “prohibits all medical treatments intended to allow ‘a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex’ or to treat ‘purported discomfort or distress from a discordance between the minor’s sex and asserted identity,'” violates the Equal Protection Clause of the Fourteenth Amendment.
Wednesday’s oral arguments marked the first time the Supreme Court considered restrictions on puberty blockers, hormone therapy and surgery for minors. However, it also comes as many other states have moved to ban or restrict medical treatments and procedures for transgender adolescents, placing outsize focus on the case and on oral arguments Wednesday, as observers closely watched the back-and-forth for clues as to how the court might rule.
A student leads a group of demonstrators in Knoxville, Tennessee, in protest of the state’s 2022 transgender athlete ban. (Saul Young/Knoxville News-Sentinel /USA Today)
Petitioners in the case were represented by the Biden administration and the ACLU, which sued to overturn the Tennessee law on behalf of the parents of three transgender adolescents and a Memphis-based doctor.
At issue during Wednesday’s oral arguments was the level of scrutiny that courts should use to evaluate the constitutionality of state bans on transgender medical treatment for minors, such as SB1, and whether these laws are considered discriminating on the basis of sex or against a “quasi-suspect class,” thus warranting a higher level of scrutiny under the Equal Protection Clause of the Constitution.
Both sides continued to battle over the level of scrutiny that the court should apply in reviewing laws involving transgender care for minors, including SB1.
Petitioners argued that the court should use the test of heightened scrutiny, which requires states to identify an important objective that the law helps accomplish, while the state of Tennessee reiterated its claim that the rational basis test, or the most deferential test that was applied by the 6th Circuit Court in reviewing SB1, is sufficient.
Petitioners, represented by U.S. Solicitor General Elizabeth Prelogar, argued that SB1 discriminates against individuals on the basis of sex, which itself warrants a heightened level of scrutiny under the Equal Protection Clause. They argued that SB1 “categorically bans treatment when, and only when, it’s consistent with the patient’s birth sex.”
In Tennessee, petitioners argued, the way that the sex-based classification works is that, “from the standpoint of any individual who wants to take these medications, their sex determines whether SB1 applies.”
Prelogar cited one of the unnamed petitioners in the case, whom she referred to only as John Doe. Doe “wants to take puberty blockers to undergo a typical male puberty. But SB1 says that because John sex at birth was female, he can’t have access to those medications,” Prelogar argued. “And if you change his sex, then the restriction under SB1 lifts, and it changes the result.”
Petitioners also sought to assuage concerns raised by justices about the ability of states to pass legislation protecting minors, so long as the test meets a higher standard of scrutiny.
Pressed by Justice Brett Kavanaugh on the impact the ruling could have on other states, Prelogar responded by noting that the court could write a very narrow opinion that states only that when a law prohibits conduct that is “inconsistent with sex, that is a sex baseline, so you do have to apply heightened scrutiny.”
“But the court has made clear that that’s an intermediate standard,” Prelogar said. “And if the state can come forward with an important interest and substantiate that it needed to draw those sex baselines to substantially serve the interest,” it would still be permitted.
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The U.S. Supreme Court building in Washington, D.C. (AP Photo/Mariam Zuhaib)
Respondents for the state of Tennessee argued Wednesday that SB1 was designed to protect minors from what they described as “risky and unproven medical interventions.”
The state, represented by Tennessee Solicitor General Matthew Rice, argued that SB1 draws a “purpose-based line, not a sex-based line,” thus failing to meet the necessary requirement to trigger heightened scrutiny.
The law, Rice said, turns “entirely on medical purposes, not a patient’s sex.” The only way petitioners can point to a sex-based line, he argued, “is to equate fundamentally different medical treatments.”
“Giving testosterone to a boy with a deficiency is not the same treatment as giving it to a girl who has psychological distress associated with her body,” Rice said.
Still, respondents faced tough questioning from justices on the classification and application of SB1.
On issues of classification, Justice Kentaji Brown Jackson cited parallels to the race-based case of Loving v. Virginia, which overturned Virginia’s law forbidding marriage between persons of different racial categories; in that case, a White man and a Black woman.
A flag supporting LGBTQ+ rights decorates a desk on the Democratic side of the Kansas House of Representatives during a debate on March 28, 2023 at the Statehouse in Topeka, Kansas. The U.S. Supreme Court agreed Monday to consider whether a Tennessee ban on gender transition care for minors is constitutional. (AP Photo/John Hanna, File)
She noted that under SB1, an individual can be prescribed puberty blockers or hormone treatments if doing so is consistent with their sex, but not if it is inconsistent, asking Rice, “So how are they different?”
Justice Elena Kagan asked Rice about the application of SB1, noting the text of SB1 and one of its articulated purposes, which is to “encourag[e] minors to appreciate their sex and to ban treatments ‘that might encourage minors to become disdainful of their sex.’”
“You’re spending a lot of time talking about what the classification is here,” Kagan told Rice. “And I think we’ve talked a good deal about that. But what produced this classification might be relevant to understanding what the classification is about.”
Tennessee has argued that its law can still withstand even the test of heightened scrutiny, contending in its court brief that it does have “compelling interests” to protect the health and safety of minors in the state and “in protecting the integrity and ethics of the medical profession.”
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The controversial case comes at a time in Washington when Republicans are set to take control of the White House, hold the House and regain the Senate, giving them a greater influence on the composition of the federal courts.
The court is expected to rule on U.S. v. Skrmetti before July 2025.
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