On Dec. 4, the U.S. Supreme Court heard oral arguments in the case of United States v. Skrmetti, which involves the Constitution’s equal protection clause, a key provision of the 14th Amendment. The SCOTUS had agreed to hear the legal challenge last June.
The case was brought by the United States Solicitor General Elizabeth Prelogar, Tennessee families and a medical provider against a 2023 Tennessee state law, S.B. 1, banning gender-affirming medical care for transgender youth. This case is historic in that it is the first time the SCOTUS will rule on the constitutionality of statewide bans to such care and could have the same impact as Bostock v. Clayton County, which argued for trans inclusion in sex discrimination cases involving employment.
This is also the first time a trans attorney — Chase Strangio — has argued a case before the high court. Strangio is Deputy Director for Transgender Justice and staff attorney with the American Civil Liberties Union (ACLU).
United States v. Skrmetti was initially brought by Samantha and Brian Williams of Nashville, Tennessee and their 15-year-old transgender daughter, two other plaintiff families filing anonymously and Memphis-based medical doctor Dr. Susan Lacy. All are challenging a Tennessee law banning gender-affirming care for transgender people under 18.
Tennessee is one of more than two dozen states that, over the past three years, have enacted laws that ban puberty blockers, hormones and other treatments for minors seeking gender-affirming care. Many families, including the ones involved in the Tennessee case, have been forced to travel out of state to maintain the health care of their trans children.
All the major medical associations including the American Medical Association, American Academy of Pediatrics and American Psychological Association support gender-affirming care for transgender and nonbinary youth. They all argue that the benefits of such treatment can be life-saving and gender-affirming care can improve the physical health and mental well-being of transgender individuals. Studies have shown that age-appropriate and evidence-based gender-affirming care can lead to improved mental-health outcomes.
Why this case was filed
The ACLU, the ACLU of Tennessee, Lambda Legal, and Akin Gump Strauss Hauer & Feld LLP asked the Supreme Court to review a September 2023 decision by the Sixth Circuit Court of Appeals allowing Tennessee’s ban to stay in effect. The U.S. intervened in the plaintiffs’ case at the district court and also asked the court to review the Sixth Circuit Court decision. The Tennessee law prohibits medical providers from treating transgender youth with evidence-based gender-affirming medical treatment and requires youth receiving gender-affirming care to end that care by March 31, 2024.
The ACLU said, “Applying the Supreme Court’s 2020 ruling in Bostock v. Clayton County and other long-standing precedents, trial courts have blocked such bans in Arkansas, Alabama, Florida, Georgia, Idaho, Indiana, Kentucky and Tennessee. In June 2023, a federal court in Arkansas struck down that state’s ban on gender-affirming care after a two-week trial in the first and only post-trial ruling on the constitutionality of such a law, finding it violated the Equal Protection and Due Process clauses of the Fourteenth Amendment as well as the First Amendment of the United States Constitution.”
In speaking for her trans daughter, who is unnamed in the suit, plaintiff Samantha Williams said, “It was incredibly painful watching my child struggle before we were able to get her the life-saving health care she needed. We have a confident, happy daughter now, who is free to be herself and she is thriving.”
Williams’ daughter said, “I don’t even want to think about having to go back to the dark place I was in before I was able to come out and access the care that my doctors have prescribed for me.”
What’s at stake?
Throughout his election campaign, president-elect Donald Trump said he will end a series of LGBTQ+ protections established by the Biden administration “on day one” of his presidency. He has argued that Congress should pass a law stipulating that there are only two genders. Trump has also said he will end gender-affirming care for minors.
Trump claimed at rallies and in interviews that kids were getting gender surgeries at school and that his Democratic opponent, Vice President Kamala Harris, was a supporter of this and was for “they/them, not you.”
Trans issues have also become a flashpoint in the House as incoming representative Sarah McBride, the first trans woman elected to Congress, was targeted for discrimination. After a campaign by Rep. Nancy Mace (R-SC), Speaker Mike Johnson declared that people must use the bathroom designated by their birth sex.
It is into this highly charged political and social maelstrom that the Dec. 4 arguments were held. At stake: the health and safety of trans youth.
What the justices heard
In addition to Strangio and Prelogar, Matt Rice, Tennessee’s state solicitor general, defended the law before the high court.
Over nearly three hours of arguments on both sides, the conservative justices seemed poised to reject the plaintiffs’ contention that they are being discriminated against on the basis of sex. Yet it was clearly stated that the same care of puberty blockers and estrogen and testosterone supplements are regularly provided for cisgender youth without issue but not trans youth.
Strangio argued that “these are very commonly used medications,” and Tennessee “bans them for one and only one purpose.”
“The government of Tennessee is displacing the decision-making of loving parents,” who follow the “recommendations of doctors. At the end of the day, the law is tailored to one and only one interest, which is to enforce Tennessee’s preference that adolescents conform to their birth sex.”
Arguing for the Biden administration for the plaintiffs, Solicitor General Elizabeth Prelogar said, “States have leeway to regulate gender-affirming care. But here, Tennessee made no attempt to tailor its law to its stated health concerns.”
Prelogar said if the Supreme Court accepted the state’s arguments, it would clearly enable a nationwide ban on gender-affirming treatment for trans youth. Prelogar also argued that the Tennessee ban, if supported by the SCOTUS, could be applied to all trans individuals in the state or become applicable nationally.
For liberal Justice Ketanji Brown Jackson, the case called to mind other discrimination cases in which a protected class has their rights violated based on the argument that there was no actual discrimination or even protection. She said it made her “very nervous.” Jackson argued repeatedly with Rice over his contentions that there was no discrimination based on sex in the case.
“Our fundamental point is there is no sex-based line here,” Rice said.
But Justice Sonia Sotomayor disagreed and supported Jackson citing a long history of laws discriminating against others. She said, “Blacks were a much larger part of the population [than trans people] and it didn’t protect them. It didn’t protect women for whole centuries.”
Justice Elena Kagan pushed back on the argument made by Tennessee.
“It’s a dodge to say that this is not based on sex,” Kagan said to Rice. “The medical purpose is utterly and entirely about sex.”
Justice Amy Coney Barrett asked Strangio if there were examples of “de jure,” or by law, discrimination against transgender people rather than private discrimination. Barrett said transgender people have not experienced the same long history of discrimination written into the law in the same way those other groups faced in racial and sex discrimination.
“All other suspect classes [the term used for protected groups who face historic discrimination] do have that long de jure history of discrimination,” Barrett said.
Strangio cited laws against cross-dressing and previous bans on military service by transgender people. (President Joe Biden in 2021 reversed a Trump-era policy that barred transgender people from serving in the military. Trump has said he plans to reinstate that ban.)
Chief Justice John Roberts tried repeatedly to suggest that the SCOTUS should not be addressing the issue as they are not doctors. (This is an argument Roberts never made in the Dobbs decision overturning Roe v. Wade.)
Roberts said to Strangio, “The Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor.”
Justice Brett Kavanaugh raised his concerns about girls’ sports and also about patients who later change their minds and detransitioned.
“How do we as a court choose which set of risks is more serious in deciding whether to constitutionalize this whole area?” Kavanaugh said.
Studies indicate detransitioning occurs in fewer than 1% of cases of transitioning.
Both Justices Clarence Thomas and Samuel Alito asked if states could have sex-based laws.
“We think the court just needs to recognize the sex-based classification and send this case back,” Prelogar said.
She asserted repeatedly that gender-affirming care has essential benefits that can be “critical, sometimes lifesaving, care to individuals with severe gender dysphoria.”
Justice Neil Gorsuch, who authored Bostock, asked no questions.
What it could mean
The SCOTUS decision to address the issue could impact 25 states that have enacted such restrictions. As PGN has reported extensively, Republican-led state legislatures have pushed to curtail transgender rights. Laws that target gender-transition care and that regulate other trans issues, including which bathrooms students and others can use and which sports they can play and with whom.
Speaking outside the Supreme Court after the case was heard, Tennessee Attorney General Jonathan Skrmetti said the state’s argument would allow other states to set their own policies on whether or not to restrict gender-affirming care.
“Each state is allowed to make its own decisions,” Skrmetti said.
Strangio, who said he was “honored and humbled” to speak before the court added that, “No matter what happens, we will keep fighting.”
Roberts and Gorsuch joined the court’s liberal justices (Sotomayor, Kagan and Jackson) in the 2020 Bostock workplace discrimination case. They could possibly vote with them again on this case, although Roberts seemed skeptical of the plaintiffs’ case. Conservative justices Alito, Kavanaugh and Thomas, dissented on Bostock. Barrett was not yet on the court for that case. A ruling in the case is expected at the end of the term in June.
Listen to the full Supreme Court discussion on YouTube at bit.ly/3ZCL9AJ.