By Andrew Chung and John Kruzel, Reuters
People hold flags outside the US Supreme Court, during oral arguments on whether states can ban certain gender transition medical treatments for young people. Photo: ROBERTO SCHMIDT/AFP
The US Supreme Court tackled a major transgender rights case, and its conservative justices asked tough questions of lawyers challenging the legality of a Republican-backed ban in Tennessee on gender-affirming medical care for transgender minors.
Some of the conservative justices signalled support for Tennessee's position during arguments in the case. The court has a 6-3 conservative majority.
The arguments were ongoing.
Democratic President Joe Biden's administration appealed a lower court's decision upholding Tennessee's prohibition on medical treatments such as puberty blockers and hormones for people under age 18 experiencing gender dysphoria. That is the clinical diagnosis for significant distress that can result from an incongruence between a person's gender identity and the sex assigned at birth.
Tennessee's law is one of 24 such policies enacted by conservative state lawmakers around the United States.
Conservative Justice Clarence Thomas told US Solicitor General Elizabeth Prelogar, arguing for the administration, that the law was not an outright ban but rather was focused on the age of a patient.
"So why isn't this simply a case of age classification when it comes to these treatments as opposed to a ban, as you suggested in your opening statement?" Thomas asked Prelogar.
"It's certainly true, Justice Thomas, that the statute classifies based on age," Prelogar responded. "But it packages that age classification with a sex restriction and says that for all adolescents you cannot take these medications if they're inconsistent with your sex."
The administration and other challengers have argued that the law discriminates against these adolescents based on sex and transgender status, violating the US Constitution's 14th Amendment promise of equal protection.
Chief Justice John Roberts and fellow conservative Justice Samuel Alito noted that there is a dispute over medical and scientific uncertainty surrounding the treatments.
"Doesn't that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?" Roberts asked.
Prelogar noted that the medications at issue have been safely prescribed for decades to treat many conditions.
But under Tennessee's law, Prelogar said, "It doesn't matter what parents decide is best for their children. It doesn't matter what patients would choose for themselves. And it doesn't matter if doctors believe this treatment is essential for individual patients. (The law) categorically bans treatment when, and only when, it's inconsistent with the patient's birth sex."
Liberal Justice Elena Kagan wondered whether the court should look beyond sex discrimination to how the law specifically treats transgender people differently. Prelogar said the law improperly discriminates against people based on their transgender status.
The case brings transgender rights, a major flashpoint in the US culture wars, to the Supreme Court as Republican US President-elect Donald Trump prepares to take office on 20 January. Trump vowed during his election campaign to restrict gender-affirming care and transgender sports participation.
Tennessee's law, passed in 2023, aims to encourage minors to "appreciate their sex" by prohibiting healthcare workers from prescribing puberty blockers and hormones to help them live as "a purported identity inconsistent with the minor's sex."
'Measured guardrails'
Prelogar said the law "restricts medical care only when designed to induce physical effects inconsistent with birth sex. Someone assigned female at birth can't receive medication to live as a male. But someone assigned male can."
"To be clear, states have leeway to regulate gender-affirming care. But here Tennessee made no attempt to tailor its law to the stated health concerns. Rather than impose measured guardrails, (the law) bans the care outright no matter how critical it is for an individual patient," Prelogar said.
Prelogar cited a West Virginia law on the issue as one that might stand up to legal scrutiny.
ACLU lawyer Chase Strangio, representing transgender adolescents who challenged the law, became the first openly transgender attorney to argue before the Supreme Court. The conservative justices asked Strangio tough questions as well.
Liberal Justice Sonia Sotomayor highlighted the need to subject the Tennessee law to more sceptical judicial review, as courts have done in gender discrimination cases in the past, to guard against legislatures adopting laws based on "personal judgements" about what is right or wrong.
Sotomayor noted high rates of suicide among minors with gender dysphoria and that some of them "suffer incredibly."
Questioned by conservative Justice Brett Kavanaugh, Prelogar said the court could find fault with the Tennessee law concerning this treatment in a ruling that would not weigh in on the legal questions involving the contentious issue of transgender participation in women's sports. Prelogar said there is a different set of state interests at play in the two issues.
Providers can be sued and face fines and professional discipline for violations under Tennessee's law. The law allows these medications to be used for any other purpose, including to address congenital defects, precocious puberty or other conditions.
The state has said it is banning "risky, unproven gender-transition interventions," pointing to "scientific uncertainty," tightened restrictions in some European countries and "firsthand accounts of regret and harm" from people who discontinue or reverse treatments.
Medical associations, noting that gender dysphoria is associated with higher rates of suicide, have said gender-affirming care can be life-saving, and that long-term studies show its effectiveness.
Before the arguments, a few hundred demonstrators - both opponents and supporters of Tennessee's law - gathered outside the court on a chilly morning. One Connecticut man held a sign that read, "I love my trans son." A Republican Tennessee lawmaker, Jason Zachary, spoke to a crowd about the need for the law, flanked by signs that read, "Stop the Harm" and "Kids' Health Matters."
Several plaintiffs - including two transgender boys, a transgender girl and their parents, as well as a doctor who provides the type of care at issue - sued to challenge the law's legality. They are represented by the American Civil Liberties Union and LGBT rights group Lambda Legal.
The US Justice Department subsequently intervened in the lawsuit.
A federal judge blocked the law as likely violating the 14th Amendment but the Cincinnati-based 6th US Circuit Court of Appeals later reversed the judge's preliminary injunction. The ruling by the Supreme Court is expected by the end of June.
- Reuters
