With trans care — and lives — in the balance, justices debate Tennessee ban

After nearly two-and-a-half hours of arguments, the Supreme Court was deeply divided in the case over state bans on gender-affirming medical care for trans minors.

Elliot Page speaks in front of the U.S. Supreme Court on Wednesday, Dec. 4, 2024, after oral arguments in U.S. v. Skrmetti.

The U.S. Supreme Court faced an easy case, in some ways, on Wednesday when it heard oral arguments in U.S. v. Skrmetti.

The question: Does Tennessee’s law that bans transgender minors, categorically, from receiving gender-affirming medical care — in the form of puberty blockers or hormones therapy — classify based on sex?

It does, Solicitor General Elizabeth Prelogar explained repeatedly in representing the view of the Biden administration in over more than an hour of questioning.

Whether the Supreme Court agrees, however, likely will depend on Justice Neil Gorsuch — who was silent Wednesday — and Justice Amy Coney Barrett — who left her ultimate position unclear.

If the law does classify based on sex, then the Supreme Court would most likely send the case back to the U.S. Court of Appeals for the Sixth Circuit to consider whether the law passes heightened scrutiny — the test that laws that classify based on sex must pass. That is so because the Sixth Circuit previously only considered the law under rational basis — the lowest level of scrutiny.

As Chase Strangio explained during the roughly 45 minutes in which he responded to the justices’ questions on behalf of the trans teens and their parents who sued to block enforcement of the law, when a lower court makes a wrong decision on such a “threshold question,” the proper step for the Supreme Court is to remand the case so that the lower courts can examine the case under the proper test.

Under heightened scrutiny, Tennessee would need to show that its law advances an “important governmental objective” and that the classifications are “substantially related to the achievement” of that objective. Under rational basis review, which is extremely deferential, it need only show that the classification is “reasonably related” to a “legitimate governmental objective.”

Responding to questions from Justice Brett Kavanaugh, Strangio — the first openly trans lawyer to argue before the justices — noted that the Supreme Court could include in its opinion “guidance” as to how the lower courts should apply the test as well.

Tennessee Solicitor General Matthew Rice, in his roughly 30 minutes of time arguing, insisted that the law, passed as S.B. 1, does not classify based on sex at all. Instead, he insisted that the law’s “application turns entirely on medical purpose, not a patient's sex.”

The problem is, that’s not what the law says.

The law — on its face — does not distinguish among many different medical purposes. Although other laws might render certain purposes legal or not, the question of whether a “medical procedure” is legal or not under S.B. 1 — the only law before the court — is answered by knowing whether the procedure helps “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or not. To do that, you need to know the minor’s biological sex assigned at birth.

That’s it.

Although Rice tried to talk around it in a confused, confusing exchange with Justice Ketanji Brown Jackson, that is in the words of the law itself — and those words are not what Rice instead insisted was how the law is applied.

Justice Elena Kagan summed it up when she told Rice, “The whole thing is imbued with sex. I mean, it’s based on sex. You might have reasons for thinking that it’s an appropriate regulation, and those reasons should be tested and respect given to them, but it’s a dodge to say that this is not based on sex, it’s based on medical purpose, when the medical purpose is utterly and entirely about sex.“

The only real question now is whether a majority of the conservative-majority court will care.

Unfortunately, there were signs on Wednesday that enough of them might not — although for differing reasons.

If the justices decide that such bans are only subject to rational basis, as the Sixth Circuit held, then the bans are almost certain to be upheld — although Strangio and the private plaintiffs do make an argument that S.B. 1 should fail even that minimal review.

A decision in the case is expected by the end of June (or early July), although the change in presidential administrations could speed up or delay resolution of the case.

What did the justices say?

Three justices had dissented in 2020 when the Supreme Court ruled in Bostock v. Clayton County that Title VII’s ban on sex discrimination included gender identity discrimination — the court’s first significant decision supporting transgender rights. All three of those dissenters remain on the court today and were skeptical of the challenge to the Tennessee law.

Justice Sam Alito was the most clearly opposed to the provision of gender-affirming medical care for transgender minors. As is becoming a regular expectation, he often sounded more like a Fox News host than a justice. His first question to Prelogar was about European responses to trans care — discussing the “Swedish National Board of Health and Welfare” and the Cass Report in the United Kingdom. Although Prelogar and Strangio both noted that none of the European countries in question have banned care for minors completely like Tennessee has done, Alito steamed ahead.

Alito also provided the main attempt at pushing a doctrinal shift at the court. Instead of treating this case as one in which Bostock signaled how to consider whether there is a sex-based classification, Alito instead said that the court previously addressed “how an equal protection claim should be analyzed when the law in question treats a medical condition or procedure differently based on a characteristic that is associated with just one sex. And that was Geduldig in 1974, reaffirmed in Dobbs in 2022.“ This was the dismissive one-paragraph aside in Alito’s opinion overturning Roe v. Wade that I discussed on Tuesday. Now, Alito is explicitly trying to expand that to transgender people’s medical care, even though Prelogar explained how that isn’t applicable here. Alito’s argument, on its face, would apply no less to a wholesale ban on gender-affirming medical care even for trans adults, as Tennessee’s lawyer basically admitted.

Justice Clarence Thomas was, in comparison, mild, asking questions around the edges about whether there are “physiological difference[s]” between “testosterone and its reaction in a male as opposed to in a [biological] female“ and the remedies that the plaintiffs were seeking in the case and whether that fit with a “normal[]” equal protection case where “there's a difference between one group and another” in whether there is a remedy or what it would look like.

Justice Brett Kavanaugh was not mild — but he was not particularly deep in thought either. His “who decides” approach was, essentially, a statement that equal protection is worthless when needed most. Talking with Prelogar, he said, “[I]t seems to me that we look to the Constitution, and the Constitution doesn't take sides on how to resolve that medical and policy debate. The Constitution's neutral on the question. At least that's one way to look at it.” Prelogar’s response — “Well, I do think that the Constitution takes a position that individuals are entitled to equal protection of the law.” — was just a basic statement of law, but it also starkly showed how far afield Kavanaugh’s musing could take us.

Kavanuagh also focused repeatedly on concerns about people who “de-transition,” asking both Prelogar and Strangio to acknowledge their existence — despite the fact that neither the United States nor the plaintiffs have ever denied their existence. This was, for Kavanaugh, more evidence that this is just a policy question and not a legal issue. “[S]o there are risks both ways in here,” Kavanaugh told Strangio, “allowing the treatment or not allowing the treatment, and how to choose there is a very difficult judgment call, it seems to me, but it's a difficult judgment call as a matter of policy.”

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Two Republican appointees joined the then-four Democratic appointees on the court in 2020’s Bostock decision majority.

Chief Justice John Roberts appeared aligned with Kavanaugh on Wednesday, if with slightly more nuance. Literally, his initial questioning to Prelogar focused on how this case involved “medical nuances” that he said were not present in past equal protection cases relied upon the Biden administration and private plaintiffs. Later, when he followed up with Strangio, Roberts said that, unlike those other cases, this is “quite a distinct type of inquiry that involves medical expertise, predictive judgments in medical area.”

Strangio responded that there would be “particular considerations that involve the underlying medical evidence” in the application of heightened scrutiny to the law, but that it would not “break new ground to apply heightened scrutiny here.”

Justice Neil Gorusch, who wrote the Bostock decision, asked no questions on Wednesday. Normally a substantial questioner at arguments, he sat quietly throughout the nearly two-and-a-half hours of arguments without asking a single question of any of the three lawyers.

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Two more justices — both Democratic appointees — were in the Bostock majority, and both appeared likely to side with the challengers in Wednesday’s case.

Justice Sonia Sotomayor, as the former trial judge often does, connected the justices — literally sitting higher in the courtroom on a raised platform at the bench than the rest of us — to the actual people who will be affected by the ruling in Wednesday’s case: “One of the Petitioners in this case described throwing up every day” before beginning medical treatment for gender dysphoria that is banned by S.B. 1.

Justice Elena Kagan displayed her familiarity with the issues, talking about “trans young people” and “cis young people” in discussing with Prelogar how she was looking at the case.

“I understand the formal ways in which this is a sex-based classification,” Kagan said, “but I'm wondering whether that's not a little bit formal, and what's really going on here is a discrimination against, a disregard for young people who are trans, and why we shouldn't think of the law in that way.” This reflected the second equal protection arguments raised by the parties. In addition to arguing that S.B. 1 created a sex-based classification, the U.S. and private plaintiffs also argued that the law discriminated against trans people — an argument that also asks the court to hold that such classifications would themselves be subject to heightened scrutiny.

Prelogar agreed that it does discriminate on the basis of transgender status, echoing the government’s brief, but added, “I don't think it's unduly formal to look at this as a sex classification.”

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Finally, two justices were new to the court since the Bostock decision — one Democratic appointee and one Republican appointee.

Justice Ketanji Brown Jackson was clearly aligned with the other Democratic appointees. She also directly responded to Kavanaugh’s seeming dismissal of the protection provided by equal protection, repeating his “who decides” language when she told Prelogar that “some of these questions about sort of who decides and the concerns and legislative prerogatives, et cetera, sound very familiar to me. They sound in the same kinds of arguments that were made back in the day, '50s, '60s, with respect to racial classifications and inconsistencies.” Jackson went on to discuss Loving v. Virginia, the case that ended Virginia’d anti-miscegenation law, for the first of several times Wednesday.

Telling Strangio that she was “suddenly quite worried about … the constitutional allocation of authority concerns” raised by Kavanaugh, Jackson said, “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.”

Later, Jackson spent significant time going back and forth with Rice over the question of whether the law creates a sex classification at all.

Justice Amy Coney Barrett appeared to be a little skeptical of everything. She sounded skeptical of the dismissiveness of some of her fellow Republican appointees, instead open and willing to take the case as it was. But, early in the arguments, she also asked a question in a way that suggested she might agree with Tennessee’s purpose for the law. Telling Prelogar that the legislature was saying “we want girls to be girls and boys to be boys at least until they're old enough to decide otherwise,” it wasn’t quite clear whether that was a distillation from her of what she thought the legislature was saying or whether that last part was her characterization of the law. Nonetheless, given that a significant point of the challengers’ argument is that these teens — in consultation with their parents and medical providers — are “old enough to decide otherwise,” it was concerning.

Barrett also didn’t say much about the sex-classification argument that otherwise was central on Wednesday, instead asking — as Kagan had — about “head-on confront[ing]“ the question of discrimination based on transgender status. Discussing the factors that the court has used to decide whether classifications are subject to heightened scrutiny, Barrett focused on whether trans people can point to a history of “de jure” discrimination — or, discrimination in the law or by government more broadly. Although Prelogar suggested that “historical discrimination” against trans people “may not have been reflected in the laws,” Strangio pointed to bans on cross-dressing and the ban on trans people serving in the military. Barrett also asked Strangio to discuss the Sixth Circuit’s discussion of one of the other factors: political powerlessness.

In Strangio’s response, he summed up Wednesday’s arguments, a problem with Tennessee’s law, the problem with Kavanaugh’s approach, and the country today.

“I think looking out at the country at the moment, that there is a significant challenge for transgender people to protect themselves in the political process where you do have laws excluding transgender people from places where they need to go in all aspects of life, and there is a difficulty in that type of majoritarian protection,” Strangio said. “I think that's precisely what the political powerlessness prong of the test accounts for.”