The Supreme Court heard oral arguments on Wednesday over Tennessee’s law banning gender-affirming care for transgender children, and the decision could have an impact far beyond the kids at the center of the case.
The Supreme Court’s 6-3 conservative majority appeared supportive of Tennessee’s 2023 law, which banned gender-affirming care for minors. Chief Justice John Roberts, on multiple occasions, implied that he did not believe the Supreme Court should be getting involved in the issue and should instead leave it up to the states.
“We might think that we can do just as good a job with respect to the evidence here as Tennessee or anybody else, but my understanding is that the Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor,” Roberts said. “It seems to me that this is something where we are extraordinarily bereft of experience.”
Justice Neil Gorsuch, who is the author of a 2020 decision banning workplace discrimination against trans and gay employees and is considered to be the plaintiffs’ best chance at flipping a conservative justice, stayed silent throughout the entire proceeding.
Meanwhile, Justices Clarence Thomas and Samuel Alito both seemed skeptical of the science behind providing gender-affirming care for the health and well-being of trans kids. Alito, at one point, posed the question of whether or not transgender people are an “immutable class,” a requirement to be subject to the stricter scrutiny of the Equal Protection Clause of the Fourteenth Amendment.
“I acknowledge Justice Alito that there is a lot of debate happening here and abroad about the proper model of delivery of this care and exactly when adolescents should receive it and how to identify the adolescents for whom it would be helpful,” U.S. Solicitor General Elizabeth Prelogar said. “But I stand by that there is a consensus that these treatments can be medically necessary for some adolescents, and that’s true no matter what source you look at.”
Prelogar and ACLU attorney Chase Strangio contended that Tennessee’s law breaches the Equal Protection Clause by discriminating along the lines of sex.
One core argument is that by denying masculinizing treatments to children assigned female at birth but allowing those same treatments for children assigned male at birth and vice versa, Tennessee is discriminating based on sex.
“The problem with Tennessee’s law here is not that it’s just a little bit over-inclusive or a little bit under-inclusive, but that it’s a sweeping, categorical ban where the legislature didn’t even take into account the significant health benefits that can come from providing gender-affirming care, including reduced suicidal ideation and suicide attempts,” Prelogar said.
She referenced a similar debate in West Virginia, where legislators opted to require an extra diagnosis of gender dysphoria rather than ban treatment outright.
One of the most notable moments came during Justice Sonia Sotomayor’s questioning of Tennessee Solicitor General Matt Rice. Rice’s stance largely revolved around the idea that Tennessee’s law was not based upon the sex of the person at all but upon the application of the treatments being used, meaning it would not be subject to the Equal Protection Clause.
“Given your argument, you’re saying your state can block gender treatment for adults too,” Sotomayor said.
“Your Honor, we think that if we’re assuming a similarly-worded statute, that there still would not be a sex or a transgender-based classification,” Rice responded.
Justice Kentanji Brown Jackson’s questioning of Strangio opened a different area of concern when she said that she worried that a ruling on this case could undermine precedents that were set by cases such as the one that allowed interracial marriage. In the landmark Loving v. Virginia case, the state made a similar argument to the one posed by Roberts, that this is not a constitutional issue and, therefore, the Supreme Court should leave it up to the state.
“If we’re just sort of doing what the state is encouraging here in [Loving v. Virginia] where you just sort of say, well, there are lots of good reasons for this policy, and who are we as the court to say otherwise, I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases,” Brown said.
A ruling is expected sometime in the spring.