WASHINGTON — The conservative-majority Supreme Court on Wednesday dove into the culture war issue of transgender rights as it weighs whether states can restrict gender transition care for minors.
President-elect Donald Trump and his allies repeatedly pushed an anti-transgender rights message during the recently concluded election. Among other things, he has pledged to restrict access to gender-affirming health care and reimpose restrictions on transgender people serving in the military when he takes office in January.
Democrats, including the Biden administration in the case now at the court, have sought to increase protections for transgender people.
The court, which has a 6-3 conservative majority that includes three Trump appointees, is considering a challenge brought by the Biden administration and transgender teens and their families against a recently enacted law in Tennessee.
Conservative justices questioned whether the issue involved evolving standards of care rather than strictly medical regulation or sex discrimination considerations as arguments began.
Both Chief Justice John Roberts and Justice Samuel Alito raised questions about changing views and increasing uncertainty about some aspects of gender-affirming treatments in Europe and elsewhere.
“And of course, we’re not the best situated to address issues like that,” Roberts said, adding, “Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than trying to determine them for ourselves?”
Alito raised a question about the medical evidence for the efficacy of puberty blockers and hormone treatments, which the Biden administration has asserted is overwhelming.
Given the determinations by British and Swedish health authorities about the benefits of the treatments for adolescents could outweigh the risks, he asked whether the administration stood by its argument that the medical approach was warranted for minors in general.
Solicitor General Elizabeth Prelogar, representing the Biden administration, acknowledged there was “a lot of debate” about the proper model of treatment and for whom and at what age it would help, but she argued there was a consensus that the care can be medically necessary for some adolescents.
She pointed out that the United Kingdom and Sweden have not banned such treatments, “and I think that’s because of the recognition that this care can provide critical, sometimes life-saving, benefits for individuals with severe gender dysphoria,” referring to the clinical term given to the distress people can experience when their gender identities are in conflict with the genders assigned to them at birth.
The oral argument Wednesday morning is the most significant so far of the court’s latest term, which started in October and ends in June.
There was a boisterous scene with supporters on both sides outside the court ahead of arguments. “Every child deserves the chance to fly as their true self,” one sign held by a pro-transgender rights attendee said. “Stop transing kids” said another held by a woman supporting the state’s law.
The state measure enacted in 2023 bars gender transition surgery for minors as well as puberty blockers and hormone therapy. The surgery ban is not at issue in the Supreme Court case after a lower court judge said the plaintiffs did not have legal standing to challenge it.
No matter how the court rules, it will have a broad impact, as more than 20 other states have passed laws similar to Tennessee’s.
“Tennessee’s ban on gender-affirming medical care is an active threat to the future my daughter deserves,” Nashville-based Brian Williams, the father of a 16-year-old transgender girl who is one of the plaintiffs in the case, said on a call with reporters.
He recounted how L.W., as his daughter is named in court papers, had “shared openly and honesty the pain she was in not being able to live as the girl she truly is.”
L.W. started taking puberty blockers at 13, and hormone therapy a year later.
“Today she is happy and healthy, a 16-year-old planning for her future,” Williams said. But as a result of the ban, the family will now be forced to travel out of state to get necessary treatment, he added.
The challengers argue that the Tennessee law is a form of sex discrimination, violating the Constitution’s 14th Amendment, which requires equal treatment under the law. They say the law discriminates against transgender patients because there are other circumstances in which non-transgender patients can be treated with puberty blockers and hormone therapy for other reasons.
Among other things, Prelogar said in court papers that laws targeting transgender people should be considered by courts under a strict standard called “heightened scrutiny.” If the court were to adopt that approach, it would make it easier for legal challenges against restrictions affecting transgender people to succeed.
Prelogar also frequently referred to the court’s surprise 6-3 ruling in 2020 written by conservative Justice Neil Gorsuch. He concluded that federal law that bars sex discrimination in employment protected transgender and gay people, a ruling that angered conservatives.
In defending the Tennessee law, the state’s attorney general, Jonathan Skrmetti, emphasized in court papers the rapid change in approach on how to treat minors diagnosed with gender dysphoria.
Skrmetti pushed back against the Biden administration’s efforts to intervene and prevent states from acting on the issue.
“While the government is free to favor its transition-first, ask-questions-later approach, the Constitution does not bind Tennessee to that same choice,” Skrmetti wrote.
The state also argues that the law does not constitute sex discrimination, saying it is merely a form of medical regulation that applies equally to everyone.
Major medical organizations say gender-affirming treatments are an effective way to treat gender dysphoria.
But Alabama Attorney General Steve Marshall, whose state has a similar ban to Tennessee’s, is one conservative figure who has questioned those findings. He filed a brief describing what he called a “medical, legal and political scandal” led by activists to influence medical experts to help them win in court.
Those who back state restrictions also point to how some other countries that previously pioneered transition treatments for minors, including the United Kingdom and Sweden, have since revised their approach and tightened standards.
In a related case that could indicate where the justices are leaning, the Supreme Court in April allowed Idaho to mostly enforce a similar law. The court’s three liberal justices dissented.
The case being argued Wednesday reached the Supreme Court after the Cincinnati-based 6th U.S. Circuit Court of Appeals issued a ruling last year rejecting challenges to the Tennessee law and a similar measure in Kentucky. A district court judge had blocked the law, but the appeals court allowed it to go into effect.
One potential wrinkle in the Tennessee case is that the incoming Trump administration could change the federal government’s position in the case and come out in favor of the state’s law before the court rules. Such a move might not, however, have any impact on how the case is decided. A ruling is expected by the end of June.
