Washington — The Supreme Court is set to weigh for the first time Wednesday whether states can restrict access to gender-affirming care for minors experiencing gender dysphoria, stepping into the politically charged debate over health care for transgender youth.
Roughly half of the states have enacted laws that prohibit puberty blockers or hormone therapy for those under the age of 18, and the dispute brought by the Biden administration, three families and a doctor tests whether states cross a constitutional line when regulating medical care that transgender adolescents argue is crucial to their well-being.
The case before the Supreme Court, U.S. v. Skrmetti, involves a Tennessee law known as SB1 that was adopted in March 2023. It bars health care providers from administering puberty blockers or hormone therapy if they’re meant to enable “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” The state argued that it has a “compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty,” and in prohibiting treatments that “might encourage minors to become disdainful of their sex.”
Puberty blockers and hormones are allowed when prescribed to treat a congenital defect, precocious puberty or other disease. The law went into effect on July 1, 2023, but transgender adolescents who started treatment before then had until March 31 to phase out their medication.
Tennessee’s law is part of a wave of measures passed by GOP-led states in recent years prohibiting gender-affirming care for minors experiencing gender dysphoria. President-elect Donald Trump has also pledged to restrict medical treatments for transgender adolescents and prohibit transgender athletes from competing in women’s sports, another area where states have enacted bans.
U.S. v. Skrmetti
State lawmakers have argued that they are trying to protect young people from “the life-altering risks of uncertain gender-transition interventions,” and have said the treatments are “risky” and “unproven.” The law, Tennessee officials told the Supreme Court in filings, sets age- and use-based limits on medical care, and is a routine exercise of the state’s authority to regulate medicine.
“The government second-guesses elected lawmakers’ judgment and asks this court to do the same,” Tennessee Attorney General Jonathan Skrmetti argued in a filing with the high court. “But this court should not snuff out legislative developments in an evolving area by enshrining the government’s skewed science into the Constitution.”
But the Biden administration, along with the three Tennessee families and Memphis doctor, assert the state’s ban draws sex-based lines and discriminates based on transgender status, a violation of the Constitution’s guarantee of equal protection.
“An adolescent assigned female at birth cannot receive puberty blockers or testosterone to live and present as a male, but an adolescent assigned male at birth can. And vice versa, an adolescent assigned male at birth cannot receive puberty blockers or estrogen to live and present as a female, but an adolescent assigned female at birth can,” Solicitor General Elizabeth Prelogar wrote in a brief. “That is sex discrimination.”
Shortly before Tennessee’s law took effect, the families with transgender children and Dr. Susan Lacy, who provided gender-affirming care to patients diagnosed with gender dysphoria, challenged the ban in federal court, arguing it is unconstitutional. The Biden administration then intervened.
A federal district court blocked the law, finding that it discriminates based on sex and transgender status and is likely unconstitutional. The judge ruled that the “benefits of the medical procedures banned by SB1 are well-established,” and said the law bars treatments for “a tiny fraction of minors, while leaving them available to all other minors (who would be subjected to the very risks that the state asserts SB1 is intended to eradicate).”
A divided panel of judges on the U.S. Court of Appeals for the 6th Circuit then reversed that decision and allowed Tennessee’s ban to take effect while legal proceedings continued. The measure, the court found, regulates gender-affirming care for all minors, regardless of sex.
“Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate from the ebbs and flows of democracy by construing a largely unamendable Constitution to occupy the field,” Chief Judge Jeffrey Sutton wrote.
Both the Biden administration and the families, represented by the ACLU, separately asked the Supreme Court to review the 6th Circuit’s decision. The high court in June agreed to do so, but took up only the Biden administration’s appeal, which asked the justices to decide whether Tennessee’s law violated the Equal Protection Clause. The parents had argued the law infringed on their due process right to make decisions about their children’s medical care, but the justices are not considering that question.
Among the issues the Biden administration has asked the Supreme Court to consider is whether the 6th Circuit applied the wrong standard when evaluating the constitutionality of Tennessee’s law. The lower court held that the ban is subject to rational-basis review, the most deferential of the three tiers of scrutiny. But Solicitor General Elizabeth Prelogar has argued the law should be subject to a more stringent level of judicial review, known as heightened scrutiny, because it classifies based on sex and discriminates based on transgender status.
If the Supreme Court agrees with the Biden administration, it could send the case back to the lower court to apply that more demanding standard, as Prelogar is asking it to do.
Prelogar is set to argue on behalf of the U.S. on Wednesday, and she will share time with Chase Strangio of the ACLU, who will make history as the first openly transgender person to argue before the Supreme Court. Tennessee Solicitor General Matthew Rice will present the state’s case to the justices.
The case is the most significant involving transgender rights that the Supreme Court, now with a 6-3 conservative majority, has heard in years. In 2020, the high court divided 6-3 in finding that Title VII’s protections from discrimination in the workplace extend to gay and transgender employees. Justice Neil Gorsuch authored the majority opinion, which Chief Justice John Roberts and the four liberal members joined.
A decision from the Supreme Court in this case is expected by the end of June.