American Civil Liberties Union attorney Chase Strangio and U.S. Solicitor General Elizabeth Prelogar asked the court to remand or send Tennessee’s law back to a lower court for reconsideration. Prelogar said the law represented a form of sex-based discrimination that should be scrutinized more heavily under the equal protection clause of the 14th Amendment.
Tennessee Solicitor General Matthew Rice told the court that the law didn’t create a classification based on sex but instead was focused on the purpose of cross-sex hormones and puberty blockers. The equal protection clause, he said, doesn’t require states to “blind themselves to medical reality.” He also compared the medical community’s acceptance of gender procedures to previous acceptance of eugenics and lobotomies.
During oral argument, multiple justices raised concerns about the evolving nature of debate in this area, as well as the level of scrutiny that courts should apply to laws such as Tennessee’s. Some justices seemed hesitant about applying the Constitution in the way that Prelogar suggested the court should, while others indicated that they believed that the law was drawing a line based on sex.
Justice Clarence Thomas asked why the court shouldn’t see the law as an age-based classification rather than a sex-based classification. He also asked whether there was a difference between the effects of testosterone on a female versus a male.
Prelogar said that she recognized differences between males and females but suggested that the state hadn’t substantiated the risk involved in administering cross-sex hormones.
Chief Justice John Roberts seemed skeptical that this case was comparable to other cases and asked whether the justices should view it differently in light of the medical questions involved. Justice Samuel Alito confronted Prelogar about the evidence and a statement that she made about the appropriateness of using drugs to address gender dysphoria. He pointed to the UK’s decision to restrict prescriptions of puberty blockers.
Prelogar maintained that the drugs could be critical for individuals with “severe gender dysphoria.” Strangio told the court that Tennessee had prohibited treatment that relieved suffering, adding that the law failed under any standard of review.
Both Prelogar and Justice Sonia Sotomayor noted that the UK hasn’t completely banned the procedures.
Sotomayor said, “The evidence is very clear that there are some children who actually need this treatment,” noting the risk of suicide and other adverse consequences for individuals who experience dysphoria.
Rice disagreed with justices over whether the state was using sex to determine the use of procedures. Justice Elena Kagan, for example, told Rice that the medical purpose at issue was “utterly and entirely about sex.”
Sotomayor posed the example of a girl coming to a doctor with the intention of preventing herself from growing breasts. In order to address that patient’s concerns, the justice said, the doctor would need to know whether the patient was a girl or a boy.
Justice Brett Kavanaugh said it seemed to him that the Constitution doesn’t take sides on the issue, noting that both the Biden administration and the states that have banned transgender-related procedures for minors had presented “forceful” arguments for and against the procedure.
“The difficulty of the issue is that some people are going to be harmed,” he told Strangio.
While speaking to Prelogar, Kavanaugh also expressed concern about “[constitutionalizing] this whole area” while referencing adverse symptoms for people who undergo procedures for gender dysphoria—including those who change their minds about attempting a transition. Rice also contended that the issue was for policymakers rather than judges to decide.
Prelogar told Kavanaugh that the court could write a “narrow opinion” targeting the drawing of sex-based lines if he was concerned about the court “moving too fast” in this area. She also emphasized the role of informed consent, but warned that denying procedures to minors would allow them to develop physical characteristics consistent with their sex, such as a more prominent Adam’s apple, that are “hard to reverse.”
Prelogar disagreed with the appeals court’s conclusion that the law should be analyzed under a form of scrutiny known as rational basis review, whereby the state has to show a rational basis for having the law. Instead, she said in her petition that the law should be subject to heightened scrutiny.
Part of the oral argument featured discussion about the Supreme Court’s 2020 decision in Bostock v. Clayton County, whereby a majority opinion written by Justice Neil Gorsuch held that discrimination based on sexual orientation and gender identity in the employment context was a form of discrimination based on sex.
During oral argument, Alito questioned whether the court should apply Bostock to this case. Kagan similarly wondered whether the court should view the law as using a sex-based classification. She suggested instead that it should be viewed as imposing a classification based on “transgender status.”
Alito also asked Strangio multiple times whether “transgender status” was “immutable.” Immutability, he said, was part of the legal consideration for deciding whether to recognize such a classification. Strangio instead focused on whether “transgender status” implied a distinguishing characteristic that was subject to review but said the “discordance between a person’s birth sex and gender identity” would satisfy an immutability test.
In responding to Kagan, Prelogar defended the idea that the court could view the law as imposing a sex-based classification, stating that the law chose to focus on procedures related to goals inconsistent with an individual’s sex. At one point, Prelogar said she thought there was “space” for states to regulate this area of the medical field in a less sweeping way than Tennessee did.
Justice Ketanji Brown Jackson indicated that she didn’t think the court should focus on the risks and benefits but rather on how the court should characterize the law. She went on to ask about the lines that the statute drew based on sex and age.
She also referenced Loving v. Virginia, which held that laws barring interracial marriages were unconstitutional, and suggested a comparison between Tennessee’s law and bans on interracial marriage. Tennessee’s law, she told Rice, was “doing basically the same thing” as Virginia’s prohibition on interracial marriage. She said both were targeting activity that was purportedly inconsistent with aspects of someone’s identity.
Sotomayor similarly compared the issue to rights for African Americans and women.
“When you’re 1 percent of the population or less, it’s very hard to see how the democratic process is going to protect you,” she told Rice.
