(Bloomberg) -- The US Supreme Court suggested it’s likely to uphold laws that ban gender-affirming treatments for minors as the justices considered a case that could determine the rights of transgender children in two dozen states.
Hearing arguments in Washington, five of the court’s conservatives voiced skepticism at contentions by the Biden administration and affected families that a Tennessee law violates the Constitution’s equal protection guarantee.
“It 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,” Justice Brett Kavanaugh said.
The case comes at a fraught time for transgender Americans, following a presidential election campaign that helped put them at the center of the nation’s cultural divide. Donald Trump and his allies spent tens of millions on anti-trans ads, and the candidate at his rallies repeatedly raised the specter of transgender athletes overwhelming their female competitors.
Tennessee bans puberty blockers, hormone therapy and surgery for those under 18. Opponents say the law and similar measures around the country fly in the face of clinical guidelines for treating gender dysphoria, the condition characterized by distress over the incongruence between one’s gender identity and birth-assigned sex. Supporters say the laws protect vulnerable children from risky and dangerous medical procedures.
Key justices expressed reluctance to second-guess the judgments of state lawmakers. “It seems to me that it is something where we are extraordinarily bereft of expertise,” Chief Justice John Roberts said.
Roberts is likely to be a pivotal vote. He was one of two conservatives, along with Justice Neil Gorsuch, who in 2020 joined the court’s 6-3 ruling that federal law bars job discrimination based on sexual orientation and gender identity. Gorsuch asked no questions during Wednesday’s session, which spanned almost two and a half hours.
Another conservative, Justice Amy Coney Barrett, was more muted in her criticisms than some of her colleagues. On two occasions, she asked lawyers to clarify that the court wasn’t considering a separate line of argument that parents have a constitutional right to make medical decisions for their children.
“You agree that the parental rights question is not before the court, so it would be open to parents to continue to press that point in other cases?” she asked Tennessee Solicitor General Matthew Rice, who responded that he did.
Suicide and Drugs
The court’s liberals were pointed in their criticism of the law. Justice Sonia Sotomayor reacted strongly when Rice said the democratic process was “the best check” against bad laws.
“When you’re 1% of the population or less, very hard to see how the democratic process is going to protect you,” she said. “Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”
Sotomayor said children with gender dysphoria were at high risk of suicide and drug addiction. “The evidence is very clear that there are some children who actually need this treatment,” she said.
Another liberal, Justice Ketanji Brown Jackson, said Tennessee’s arguments threatened to undercut the legal basis of landmark constitutional rulings, including the 1967 decision that said states couldn’t ban interracial marriage.
“I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases,” she said.
The argument itself marked a historic moment, as American Civil Liberties Union lawyer Chase Strangio became the first transgender attorney ever to argue a case in the Supreme Court.
Strangio, who represents transgender youths and their families, told the justices the law “has taken away the only treatment that relieved years of suffering for each of the adolescent plaintiffs.”
Alito Pushback
Tennessee says it enacted the law last year amid a sharp rise in the number of diagnoses of gender dysphoria among minors. Of Americans 13 to 17 years old, about 1.4% identify as transgender, according to a 2022 study by the Williams Institute.
“Politically accountable lawmakers, not judges, are in the best position to assess this evolving medical issue,” Rice argued.
US Solicitor General Elizabeth Prelogar, the Biden administration’s top Supreme Court lawyer, told the justices that Tennessee “has completely decided to override the views of the parents, the patients, the doctors who are grappling with these decisions and trying to make those tradeoffs.”
She got pushback from Justice Samuel Alito, who said some European countries have moved to restrict use of treatments for minors in recent years. He pointed to the UK’s Cass Review, a government-commissioned report that recommended mental health care over medications and other gender-affirming treatments.
“For the general run of minors, do you dispute the proposition in fact that in almost all instances the judgment at the present time of the health authorities in the United Kingdom and Sweden is that the risks and dangers greatly outweigh the benefits?” he asked Prelogar.
Prelogar said that, unlike Tennessee, those countries haven’t issued blanket bans.
A federal appeals court upheld the Tennessee law, along with a similar Kentucky measure.
The Supreme Court is scheduled to rule by July in the case, United States v. Skrmetti, 23-477.
(Updates with comments from Sotomayor, Jackson starting in 11th paragraph.)
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