The U.S. Supreme Court on Dec. 4 took up a major case on medical care for transgender youth, with the potential implications for schools bubbling just below the surface—and at times coming up during the arguments.
“If you prevail here on the standard of review, what would that mean for women’s and girls’ sports in particular?” Justice Brett M. Kavanaugh asked U.S. Solicitor General Elizabeth B. Prelogar, who is challenging a Tennessee law that bars puberty blockers and hormone therapy if they are meant to help transgender minors transition to a gender identity that’s different from their sex assigned at birth.
Tennessee is one of 23 states with laws limiting such medical treatments, while many states also have laws that bar transgender women and girls from participating in female school sports. The issue in United States v. Skrmetti is whether the Tennessee medical law violates the 14th Amendment’s equal-protection clause. Some of the transgender athlete laws have been challenged on that same basis.
While schools do not perform medical interventions on students, despite false claims from President-elect Trump, separate court cases over whether schools need to notify parents that students have assumed different names or pronouns have effectively claimed that those social transitions could lead to medical ones—and the issue of sports teams that trans students may play on has become a red-hot matter of debate, one the justices addressed during the oral arguments.
“Would transgender athletes have a constitutional right, as you see it, to play in women’s and girls’ sports—basketball, swimming, volleyball, track, et cetera—notwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes?” Kavanaugh said.
Prelogar, who is part of the Biden administration that is also challenging some of those athletics laws, sought to walk a delicate line by suggesting the court could subject the medical law to a heightened standard of constitutional scrutiny, one that might lead to it being invalidated, while leaving the transgender athletes issue for another day.
“It’s obviously a different set of governmental interests that are being asserted there, and those would have to be analyzed in their own right,” Prelogar said. “But I think that this court, if it wants to preserve space to make clear that nothing here should be understood to affect the separate questions that are arising there, the court could very well do so.”
State argues that it is regulating medical procedures
The plaintiffs are arguing that the Tennessee law, known as SB 1, has created sex-based classifications that violate the equal-protection clause, because the state does not bar puberty blockers or hormone treatments for minors for purposes not related to gender dysphoria (such as a treatment for premature puberty).
“On its face, SB 1 bans medical care only when it is inconsistent with a person’s birth sex,” said Chase B. Strangio, an American Civil Liberties Union lawyer representing the private plaintiffs who challenged the law, and the first openly transgender lawyer to argue before the high court.
“Tennessee claims the sex-based line-drawing is justified to protect children,” Strangio said. “But SB 1 has taken away the only treatment that relieved years of suffering for each of the adolescent plaintiffs.”
The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, upheld the law by applying a rational-basis test, the lowest level of constitutional scrutiny, which requires only that a law be rationally related to a legitimate governmental interest.
Tennessee argues that its law is a legitimate regulation of medical treatment for transgender youth who may regret or be harmed by certain treatments.
“Tennessee lawmakers enacted SB 1 to protect minors from risky, unproven medical interventions,” said Tennessee Solicitor General J. Matthew Rice. “Half of the states, Sweden, Finland, and the [United Kingdom] all now restrict the use of these interventions in minors and recognize the uncertainty surrounding their use.”
Several of the court’s conservatives embraced some of the state’s arguments, with Justice Samuel A. Alito Jr. seizing on recent developments in those European nations to limit treatments for transgender youth. He said an independent review released in Britain earlier this year, known as the Cass Report, “found a complete lack of high-quality evidence showing that the benefits of the treatments in question here outweigh the risks.”
Kavanaugh called treatment for transgender minors “an obviously evolving debate.”
“If it’s evolving like that and changing and England’s pulling back and Sweden’s pulling back, it strikes me as, you know, a pretty heavy yellow light—if not red light—for this court to come in, the nine of us, and to constitutionalize the whole area,” he said.
Chief Justice John G. Roberts Jr. said he was concerned about the court deciding issues that were fraught with medical considerations.
“I understand there’s a dispute between both sides on how extensive any evolution or increase in uncertainty in Europe has been and elsewhere,” Roberts said. “And, of course, we are not the best situated to address issues like that. … Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?”
Among the court’s other conservatives, Justice Clarence Thomas seemed sympathetic to Tennessee’s arguments; Justice Amy Coney Barrett suggested that law’s challengers could still press their parental-rights claims if they lost on the equal-protection arguments; and Justice Neil M. Gorsuch said nothing. Gorsuch wrote the court’s landmark 2020 decision in Bostock v. Clayton County, which held that Title VII of the Civil Rights Act of 1964 protected workers on the basis of sexual orientation and gender identity.
The Bostock decision has been a critical point for those who argue that Title IX, which bars sex discrimination in public schools, should be read to cover sexual orientation and gender identity. President Joe Biden’s administration issued regulations to that effect, although his regulations have been blocked in 26 states and at least some schools in every other state. But the Title IX debate was not before the justices in the Tennessee medical case.
The court’s liberal bloc—Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—appeared solidly supportive of transgender rights generally and the view that the Tennessee law is a sex-based classification that violates the equal-protection clause.
“Some people rightly believe that gender dysphoria may be changed ... in some children, but the evidence is very clear that there are some children who actually need this treatment,” Sotomayor said.
Kagan said that while she agreed the Tennessee law was a sex-based classification in a formal sense, “what’s really going on here is discrimination against, a disregard for young people who are trans.”
The justices weighed the issue of transgender girls in school sports
The court returned several times to the question of transgender girls and women in school sports, likely motivated by the fact that several cases over such state laws are pending before them.
Kavanaugh cited with evident approval a friend-of-the-court brief filed by cisgender female athletes in support of Tennessee law and against heightened scrutiny of laws barring transgender girls from female sports.
Strangio, who is among those fighting to challenge the athletics laws, spoke carefully (as Prelogar had) when he said such athletics laws present “wholly different interests” than the medical restrictions and thus theoretically might survive heightened scrutiny.
Rice, the lawyer defending Tennessee’s medical law, said that in his view, the transgender athletes laws were not even being challenged as containing unconstitutional sex-based classifications because challengers are not “arguing that we don’t want there to be [separate] boys and girls sports.”
“We think [such cases are] fundamentally a transgender-based challenge and not a sex-based challenge,” Rice said.
Prelogar was making perhaps her last argument as solicitor general on behalf of Biden’s administration. There is some speculation among court observers that Trump’s administration will seek to reverse the U.S. position in the case, but there is a good deal of uncertainty around that since there are private plaintiffs challenging the Tennessee law.
Prelogar said applying only the basic rational-basis scrutiny to medical laws like Tennessee’s could lead states to ban such treatments for adults, or to ban adoptions by transgender people, “or not allow them to be teachers.”
She referred to one of the plaintiffs challenging the Tennessee law, identified in court papers as Ryan Roe, a 16-year-old transgender male who relied on testosterone treatments to deal with his gender dysphoria.
“Ryan’s gender dysphoria was so severe that he was throwing up before school every day,” Prelogar said. “He thought about going mute because his voice caused him so much distress. And Ryan has told the courts that getting these medications after a careful consultation process with his doctors and his parents has saved his life. His parents say he’s now thriving.”
But under the Tennessee law, the state “has come in and categorically cut off access to Ryan’s care,” Prelogar said. “And they say this is about protecting adolescent health, but this law harms Ryan’s health and the health of all other transgender adolescents for whom these medications are a necessity.”
A decision in the case is expected by next June.
