The Supreme Court last week appeared likely to support a contentious Tennessee law banning gender-affirming care for minors after more than two hours of oral argument in one of the most pivotal cases for transgender rights in the nation's history.
Most of the conservative justices signaled concerns, with the court questioning state legislatures that have approved bans on hormone therapy and puberty blockers as well as the possibility of a young person regretting gender-affirming medical treatment in the future. Those sentiments raised alarm about what it could mean for transgender Americans if the court sides with the Tennessee law and denies the potential for sex discrimination, anti-discrimination law experts said.
If the court were to conclude that "this is not sex discrimination, that will have enormous impact, not just in the transgender field, but in all sex discrimination litigation," Ruth Colker, a law professor at Ohio State University specializing in constitutional law and LGBTQ rights, told Salon. "There's a lot more at stake in terms of the whole field of sex discrimination."
The case, U.S. v. Skrmetti, concerns Tennessee Senate Bill 1, which banned access to gender-affirming care for minors in the state. The law, which the Sixth Circuit Court of Appeals allowed to take effect after a lower court blocked it, allows for children whose gender identity aligns with their sex assigned at birth to receive hormone therapy or puberty blockers for conditions like precocious puberty. At the same time, the law bars children whose gender identity differs from their birth-assigned sex from receiving those same treatments to transition.
U.S. Solicitor Gen. Elizabeth Prelogar, who represented the Biden administration and the trans youth it filed the suit on behalf of, argued Wednesday that such a distinction between recipients of those treatments is sex-based and thus opens the law up to consideration on a higher standard of review per the anti-discrimination protections of the Constitution's Equal Protections Clause.
Referred to as "intermediate scrutiny," that higher standard of review would require the state to provide greater justification for the sex-based distinction in the law to ensure it doesn't violate the 14th Amendment's anti-discrimination provision.
"We think it would be sufficient for the Court to recognize that a law that on its face says you can't have medications inconsistent with sex is a sex classification," Prelogar told the justices, requesting that they "send this case back and have the Sixth Circuit do the heightened scrutiny analysis in the first instance.”
But the state of Tennessee, represented by state Solicitor Gen. J. Matthew Rice, argued that the law doesn't draw a sex-based line, instead barring access to hormone therapies and puberty blockers based "entirely on medical purpose" of the treatments. The court, he argued, should affirm the Sixth Circuit's ruling and allow the decision on gender-affirming care legislation to be made by "politically accountable lawmakers."
"Will Congress decide to get into the game and ban this treatment nationally for both youth and possibly adults as well? Those are scary thoughts."
The justices appeared split along ideological lines as they pelted the attorneys with questions about the merits of the case and the medical evidence both for and against gender-affirming care — a focus Colker argued wasn't relevant to the scrutiny question they are meant to resolve.
The court's three liberal justices seemed more accepting of the argument that SB1 made a classification based on sex. They also sympathized with the mental and emotional toll gender dysphoria had on trans youth and seemed to align in favor of the trans challengers' who advocated for heightened constitutional protections.
"When you're 1% of the population or less, [it's] very hard to see how the democratic process is going to protect you," Justice Sonia Sotomayor told Rice during the proceedings. "Blacks were a much larger part of the population, and it didn't protect them. It didn't protect women for whole centuries."
Meanwhile, the conservative flank of the high court appeared ready to all but endorse the Sixth Circuit's lower standard evaluation of the Tennessee ban. Chief Justice John Roberts and Justice Brett Kavanaugh raised concern over whether the issue of deciding on gender-affirming treatments for minors fell within their constitutional authority. The justices suggested the decision should be left to legislatures rather than determined by the courts.
Throughout the proceedings, Kavanaugh raised concerns about how the court's decision in the case would impact legislation and litigation related to trans Americans' participation in sports. He also frequently described the issue at hand as asking the court to weigh the harm to one group of individuals — minors who suffer under the ban because they would benefit from treatments — against the harm to another group — those who, if the law is stricken, would receive treatments they later regretted.
“How do we, as a court, choose which set of risks is more serious in deciding whether to constitutionalize this whole area," he asked Prelogar, who acknowledged the "small number that will regret this care" while countering that experiencing such regret can happen with "any other medical care."
Colker said in a phone interview that Kavanaugh's focus was "frustrating" because he neglected to acknowledge that the Equal Protection clause is "clearly implicated."
"The way he asked that question is like he thought there'd be this handbook where you go into the index and look up transgender and see, 'Oh, yes, the Constitution specifically says X, Y, Z about transgender [status]," she said. "That's not the way the Constitution works."
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Justice Samuel Alito's questioning also focused heavily on "detransitioners," or those who regret receiving gender-affirming treatments, alongside the issue of whether transgender identity was immutable, an aspect of a group's characteristics that the court often considers when determining if that group should receive more legal protection.
"I think that the record shows that the discordance between a person's birth sex and gender identity has a strong biological basis and would satisfy an immutability test," countered Chase Strangio, an ACLU attorney supporting the petitioners who became the first known transgender person to make oral arguments before the highest court.
Jessica Clarke, a USC Gould professor of anti-discrimination law with a focus on sex, gender and sexuality, told Salon that the oral argument has a "performativeness" to it that she found "discouraging." She singled out Alito's questioning in particular as primarily "making political points" and his concern with "gender fluidity" as "jarring."
"Gender fluidity is a word you hear conservatives use," she said, adding: "Conservatives are often concerned about people who change their gender identity, and this is a worry because, if you think society is built around binary genders, gender fluidity seems very destabilizing."
Conservative Justice Neil Gorsuch remained silent throughout Wednesday's proceedings, a twist Clarke found notable given his previous rulings in favor of trans rights. In 2020, Gorsuch authored the majority opinion for Bostock v. Clayton County, a landmark 2020 decision that Title VII of the 1964 Civil Rights Act protects LGBTQ Americans from workplace discrimination on the basis of sexual orientation and gender identity.
At one point during the proceedings, Justice Ketanji Brown-Jackson said she was "suddenly quite worried" and "nervous" about the implications of her conservative colleagues' questions about their authority to address the issue before them.
"I had understood that it was bedrock in the Equal Protection framework that there was a constitutional issue in any situation in which the legislature is drawing lines on the basis of a suspect classification, that it's a constitutional question that is being raised when that is happening as a threshold matter," she said. "And then you may get into why is it happening, what is the justification.”
Throughout the hearing, Jackson drew parallels between U.S. v. Skrmetti and the 1967 Loving v. Virginia case, which held that the state's anti-miscegenation laws were unconstitutional. In that case, the court ruled that the laws made a racial classification subject to higher standards of review by outlawing interracial marriage under the Equal Protection Clause even if it had applied to all races equally. Prelogar agreed that the Tennessee gender-affirming care ban before the court had a sex classification that works similarly to the distinction in Virginia's anti-miscegenation law.
“If, instead, we're just sort of doing what the state is encouraging here in Loving, 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,” Jackson said.
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The justices' line of questioning during oral argument left the impression that the court is more likely than not to side with Tennessee; the decision appears to no longer be a matter of whether they will, but how, experts said.
But Clarke cautioned that, though she's not optimistic, the justices' questions aren't always indicative of their leanings on the constitutional problem they must answer, nor are they completely predictive of the final outcome.
"It's dangerous to read too much into questions that justices ask in oral argument because sometimes they do change their minds and sometimes they ask for questions for reasons other than trying to make points," she said.
Still, Clarke added that she's "worried" that the logic that comes from the Supreme Court's decision in the case is "creeping into other areas and allowing legislatures to do more and more to enforce regressive, sometimes religious views about the appropriate behavior and conduct and appearance of men and women."
Against a virulently anti-trans social and political landscape, a Supreme Court decision in U.S. v. Skrmetti, which is expected by July 2025, in favor of Tennessee could also have broader impacts on the trans community as a whole, Colker argued.
"There's nothing to stop a state from banning this kind of medical treatment for all transgender people. There's nothing special about youth," she said, adding: "Will we start seeing more and more of these restrictions for adults, and then will Congress decide to get into the game and ban this treatment nationally for both youth and possibly adults as well? Those are scary thoughts."
Transgender Americans were pulled to the center of this year's presidential election as more than $200 million in ads attacking Democratic candidates over their support of issues affecting the community flooded the airwaves. PBS News Hour reported that President-elect Donald Trump's campaign and pro-Trump groups spent upwards of $38 million on anti-trans ads in the final stretch of the election cycle in October.
Meanwhile, the community's rights and freedoms remain in flux and at risk of further rollbacks as state legislatures ramp up the number of proposals aiming to curtail youth access to gender-affirming care, limit participation in sports and restrict bathroom usage by sex assigned at birth. According to Trans Legislation Tracker, more than 650 anti-transgender bills, including 274 carried over from 2023, are under consideration in state legislatures this year.
Twenty-six states have passed bans on gender-affirming care for trans youth, and some states have considered banning care for trans people up to 26 years of age, according to the Human Rights Campaign.
The threat of national anti-trans policies also looms in the wake of Trump's win. The president-elect made promises to prohibit minors from obtaining gender-affirmation surgeries on his first day in office, and his campaign platform proposed striking Medicare or Medicaid eligibility from healthcare providers offering gender-affirming care to youth.
The implications of a ruling in favor of Tennessee could also extend to sex discrimination cases at large if the logic that biology rules the day prevails, Colker added. Trump Defense Secretary nominee Pete Hegseth's openly stating that women shouldn't serve in combat roles makes that concern much greater, she noted.
"It's part of the broader path of cruelty," Colker added of the harm anti-trans legislative efforts like Tennessee's have on the community. "It's like abortion, it's about the cruelty."
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