Supreme Court Latest: Justices hear arguments on gender-affirming care for minors

The Supreme Court is hearing arguments on Wednesday in just its second major transgender rights case, a challenge to a Tennessee law that bans gender-affirming care for minors.

The nation’s top court will be weighing whether Tennessee’s law violates the equal protection clause of the 14th Amendment, requiring that people in similar circumstances be treated the same under the law. Both sides in the case say they are acting to protect minors from harm.

At least 26 states have adopted laws restricting or banning such care for minors, and most of those states face lawsuits.

Here’s the latest:

Kavanaugh asks about sports participation

Justice Brett Kavanaugh, who has coached his daughters’ youth basketball teams, asked about the impact of a ruling on gender-affirming care in that realm.

“If you prevail here on the standard of review, what would that mean for women and girls sports?” he asked. “Would transgender athletes have a constitutional right to participate in girls’ sports?”

At least 24 states have adopted restrictions on transgender women and girls in women’s and girls’ sports competitions. There have also been legal challenges to those laws, with mixed verdicts so far.

Prelogar said that’s a different issue and suggested the court could say in an opinion that sides with her argument that the Tennessee law would not impact the sports issue.

Kavanaugh expresses concern about patients who later change their minds

“How do we as a court choose which set of risks is more serious in deciding whether to constitutionalize this whole area?” Kavanaugh said.

Research and reports from individual doctors and clinics suggest that detransitioning is rare.

Kagan asks if all bans on such care for minors would need to be struck down

Twenty-six states have passed versions of bans.

Prelogar said some might stand up to heightened scrutiny by courts than others.

“We do think there is a real space for states to regulate here,” Prelogar said.

She pointed to West Virginia’s as one that might fare better because it gives a path for treatment for teens who are considered by medical providers to be at risk for self-harm or suicide.

‘Some children suffer incredibly with gender dysphoria’

During questioning by Justice Sonia Sotomayor, Prelogar noted that every major medical organization has supported gender-affirming care for transgender youth, and many have filed briefs supporting the challenge to Tennessee’s law.

“Some children suffer incredibly with gender dysphoria, some attempt suicide,” Sotomayor said.

The groups include the American Medical Association and the American Academy of Pediatrics.

Prelogar is focusing on the sex-based nature of Tennessee’s law

Justices Thomas and Alito both asked about when the states can and cannot have sex-based laws.

“We think the court just needs to recognize the sex-based classification and send this case back,” Prelogar said, adding that the treatments can be “critical, sometimes lifesaving, care to individuals with severe gender dysphoria.”

Tennessee’s law bars puberty blockers and hormone treatment only for transgender minors.

A reminder of the Justices to watch

The votes of Chief Justice John Roberts, Justice Neil Gorsuch and Justice Amy Coney Barrett probably will decide this case.

Here’s a look at where the Justices stand:

Roberts and Gorsuch joined the court’s liberal justices (Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson) in the 2020 workplace discrimination case won by LGBTQ+ plaintiffs.

Three conservative justices, Samuel Alito, Brett Kavanaugh and Clarence Thomas, dissented on that case.

Barrett has no high court track record on transgender issues, although she votes with the other conservatives in most of the high-profile cases.

If the parties challenging the Tennessee law hope to win, they need at least two conservative justices on their side, along with the three liberal members of the court.

Alito suggests this case diverges from the 2020 case

Alito, who seems likely to vote to uphold the Tennessee ban, is using his questioning of Prelogar to persuade his colleagues that this case is different from the one four years ago where the court sided with LGBTQ+ people.

The Bostock decision in 2020 found that the landmark Civil Rights Act of 1964 banned discrimination against LGBTQ+ people in the workplace.

That “involved the interpretation of particular language in a particular statute,” Alito said.

This case involves the Constitution’s equal protection clause, a key provision of the 14th Amendment.

Alito zeroes in on European policies

Alito focused on where European countries stand on gender-affirming care for minors, noting that Finland, Norway and Sweden have policies discouraging it from being available routinely to minors.

Prelogar noted that those countries don’t go as far as Tennessee’s outright ban on the treatments for transgender minors.

Alito asks about a UK report that questioned such care for minors

The report asserts there is “no good evidence on the long-term outcomes of interventions to manage gender-related distress.”

But advocates for transgender people have a lot of questions about the report.

▶The AP delved into it here

Roberts asks whether the issue is better left to elected lawmakers

Chief Justice John Roberts, who is one of the most closely watched justices in this case and previously voted in favor of transgender rights in the workplace, is asking whether this question might be best left to state legislatures.

Prelogar responds that the state does have regulatory powers, but argues Tennessee’s law is too broad.

Court is in session and arguments are underway

Supreme Court arguments have begun over Tennessee’s ban on health care for transgender minors. The first attorney to argue is U.S. Solicitor General Elizabeth Prelogar, arguing against the ban.

Tennessee has become an eager adopter of anti-trans legislation over the years

The Republican-controlled Statehouse and GOP Gov. Bill Lee have signed off on legislation banning transgender athletes from participating in girls’ sports.

Republicans have also blocked businesses from setting their own rules about bathroom access — a move that critics have warned targets transgender people.

This year, they placed a ban on the spending of state money on hormone therapy or sex reassignment procedures for prisoners and required public school employees to out transgender students to their parents.

Tennessee’s Republican lawmakers didn’t stop at banning care for minors

Shortly after enacting the ban on gender-affirming care, the Republican-dominant Legislature also passed legislation penalizing adults who help minors receive gender-affirming care without parental consent.

Supporters of the proposal couldn’t point to any examples of minors leaving the state to receive gender-affirming care without their parent’s consent, but said it was needed anyway to protect children.

Republican Gov. Bill Lee later signed off on the first-in-the-nation proposal.

Tennessee passes more anti-LGBTQ+ legislation than any other state

Over the years, Republican-dominant Tennessee has not only been among the top states to introduce the most anti-LGBTQ+ legislation but also the top state to enact such legislation.

According to the Human Rights Campaign, Tennessee has enacted more anti-LGBTQ+ laws than any other state since 2015, identifying more than 20 bills that advanced out of the Legislature earlier this year. That includes Gov. Bill Lee signing off on bills banning the spending of state money on hormone therapy or sex reassignment procedures for prisoners — though it would not apply to state inmates currently receiving hormone therapy — and requiring public school employees to out transgender students to their parents.

Here’s some of what is at stake

Attorneys for the families challenging Tennessee’s law have warned a ruling upholding the measure could open the door for more attempts to restrict the care for transgender adults as well as youth.

Florida is the only state that has enacted a law restricting gender-affirming care for transgender adults, though similar restrictions have been attempted in at least two other states.

Ohio Gov. Mike DeWine’s administration earlier this year proposed and then backed off rules that advocates said would have blocked access to gender-affirming care provided by independent clinics and general practitioners.

Missouri’s Republican attorney general last year pushed for an emergency rule that would have placed limits on care for adults, but state officials abruptly dropped it. Missouri later this year enacted a law banning some gender-affirming care for minors.

Most adults still are allowed to access gender-affirming health care under the Missouri law, but Medicaid won’t cover it.

Today may be the solicitor general’s last major case

Arguing for the Biden administration is U.S. Solicitor General Elizabeth Prelogar. She’s the second woman to serve in the role in the country’s history, and this could be the last major case she argues as solicitor general — essentially the federal government’s top lawyer before the Supreme Court.

Matt Rice, Tennessee’s state solicitor general, will defend the law before the high court. He served in 2019 as a clerk for Justice Clarence Thomas, who dissented from a ruling that term that a landmark civil rights law protects LGBTQ+ workers.

Tennessee isn’t trying to ban all uses of puberty blockers

The treatments at the heart of today’s arguments are also used by minors who are not transgender, including intersex people. Tennessee and other states have not tried to ban puberty blockers or hormone treatments for those uses.

Puberty blockers can be used to delay sexual development in children who go through puberty before age 8 or 9. Adolescents with delayed puberty can be treated with hormones.

Justice Clarence Thomas will ask the first question

Thomas was famously silent during arguments for years at a time because he said he relied on written briefs and thought his colleagues interrupted too much.

But when the court started hearing cases remotely during the COVID-19 pandemic, the justices altered their practice and asked questions one by one, instead of the usual free-for-all. Even after they returned to the courtroom, the justices have informally agreed to allow Thomas, the longest-serving member of the court, to go first.

He has asked questions at every argument session he’s attended since the court’s first remote arguments in May 2020.

How long will arguments last?

Don’t be fooled by the hour the court has allotted. The session could easily go twice as long.

Gone are the days when Chief Justice William Rehnquist would cut lawyers off mid-sentence when the red light went on at their podium. Chief Justice John Roberts was more lenient even before the coronavirus pandemic forced changes to the structure of the arguments.

The Biden administration is supporting the challenge to Tennessee’s law

But the administration’s position seems likely to change after Trump takes office.

He campaigned against transgender rights, using demeaning language and misrepresentations as he pledged to remove “transgender insanity” in schools and restrict participation in women’s sports.

A father and his and transgender daughter travel out of state to receive care

Brian Williams of Nashville, Tennessee, says his transgender daughter, L.W., has to travel to another state to receive the health care that “we and her doctors know is right for her.”

Williams, speaking on a Zoom call arranged by the legal team representing the family and others at the Supreme Court, said L.W. approached him and his wife, Samantha, several years ago to share “honestly and openly her pain” over her gender identity.

She began taking puberty-blocking drugs at age 13 and started hormone therapy a year later, Williams says.

Today, her father says, she is a “16-year-old planning for her future, making her own music and looking at colleges.”

Williams says he’s not expecting people to understand everything about the family. But he asks others to “open your hearts and listen.”

What are Biden and Trump’s stances on the case?

President-elect Trump backed a national ban on such care as part of his 2024 campaign in which he demeaned and mocked transgender people. Trump and his allies also promised to roll back protections for transgender people throughout the campaign.

Meanwhile, in its waning days, the Biden administration, along with families of transgender adolescents, will appeal to the justices to strike down the Tennessee ban as unlawful sex discrimination and protect the constitutional rights of vulnerable Americans.

Earlier this year, the administration and Democrat-led states extended protections for transgender people, including a new federal regulation that seeks to protect transgender students.

The scene outside the Supreme Court

People on both sides of the issue are gathered outside the court for demonstrations that are increasing in volume ahead of arguments.

They carried signs reading “Champion God’s Design” and “Kids Health Matters” on one side and “Fight like a Mother for Trans Rights” and “Freedom to be Ourselves” on the other.

Speeches and music filled the air on the sidewalk outside the court’s marble steps.

More than 500 bills restricting the rights of LGBTQ+ people were introduced in statehouses this year

Multiple bills related to transgender youth have already been filed in Texas’ legislature ahead of its session next year.

The proposals include a bill that would make it easier to sue providers of gender-affirming medical care for children.

Other bills include restrictions on which public restrooms transgender people can use, and limits on how topics related to sexual orientation and gender identity are taught in schools.

While this case is about a Tennessee law, it holds national significance

At least 26 states have adopted laws banning gender-affirming medical care for transgender minors. Federal judges in Arkansas and Florida have struck down the bans in those states as unconstitutional, though an appeals court has put the Florida ruling on hold. The ban in New Hampshire is to take effect on Jan. 1.

Several Democratic-controlled states have policies seeking to protect access to gender-affirming care.

Additionally, at least 24 states have bans barring transgender women and girls from competing in certain women’s and girls’ sports competitions. And at least 11 have laws barring transgender women and girls from using girls’ and women’s bathrooms at public schools — and in some cases, in other government facilities.

Level of scrutiny: A legal issue that could play a decisive role in the case

Most laws are reviewed and upheld under the lowest level of scrutiny, known as rational basis review. Indeed, the federal appeals court in Cincinnati that allowed the Tennessee law to be enforced held that lawmakers acted rationally in adopting the law to address the risks they perceived in gender-affirming care for minors.

But when discrimination is present, judges take a closer look.

Sex discrimination gets heightened scrutiny, which requires states to identify an important objective and show that the law helps accomplish it. Racial discrimination, not at issue here, is reviewed under strict scrutiny — the highest level — and laws rarely survive such a demanding examination.

The votes of Roberts, Gorsuch and Coney Barrett probably will decide this case

Roberts and Gorsuch joined the court’s liberal justices in the 2020 workplace discrimination case won by LGBTQ+ plaintiffs. Three conservative justices, Samuel Alito, Brett Kavanaugh and Clarence Thomas, dissented.

If the parties challenging the Tennessee law hope to win, they need at least two conservative justices on their side, along with the three liberal members of the court. Barrett has no track record on transgender issues, although she votes with the other conservatives in most of the high-profile cases.

When is a decision expected on this case?

The Supreme Court almost always issues its decisions by early summer, usually before the end of June. The transgender health case could be one of the last cases decided, which is typical of highly contentious issues. One additional potential cause for delay is the Trump administration could weigh in soon after he takes office. It’s not clear how that might affect the case.

The first transgender attorney ever to argue before the Supreme Court

Chase Strangio will be the first openly transgender attorney to argue before the nation’s highest court, representing families who say Tennessee’s ban on health care for transgender minors leaves their children terrified about the future.

Strangio will bring months of intense legal preparation to the case as well as hard-won lessons from his own experience.

“I am able to do my job because I have had this health care that transformed and, frankly, saved my life,” he said. “I am a testament to the fact that we live among everyone.”

Strangio grew up outside of Boston and came out as trans when he was in law school. Now 42, he’s an American Civil Liberties Union attorney whose legal career has included representing former Army intelligence analyst Chelsea Manning, challenging a ban on transgender people serving in the military and helping win an LGBTQ+ worker-discrimination case at the Supreme Court. He’s also the father of a 12-year-old, the son of a father who supports Trump, and has a close relationship with his Army veteran brother.

▶ Read more about Strangio and his history as a transgender advocate

When was the last time the Supreme Court took up a case on transgender rights?

The Supreme Court’s only other major case on transgender rights was in 2020 when the court ruled that workplace discrimination against LGBTQ+ people was sex discrimination in violation of the federal civil rights law commonly known as Title VII.

The court concluded in separate cases involving a gay man and a transgender woman that they were discriminated against because of their sex. Justice Neil Gorsuch, an appointee of Donald Trump’s in his first term in the White House, wrote the 6-3 opinion for the court. Chief Justice John Roberts was the only other conservative member of the court in the majority.

What is being argued before the court?

The nation’s top court will be weighing whether Tennessee’s law violates the equal protection clause of the 14th Amendment, requiring that people in similar circumstances be treated the same under the law. Both sides in the case claim they are acting to protect minors from harm.

Transgender attorney Chase Strangio will represent families who say Tennessee’s ban leaves them terrified for the future and that access to this kind of care is life-saving.

Tennessee, meanwhile, will argue before the Supreme Court that treatments like puberty blockers and hormones carry risks for young people and its law protects them from making treatment decisions prematurely.

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