The case questions whether Tennessee’s prohibition violates the equal protection clause of the 14th Amendment.
The U.S. Supreme Court is expected to hear a potentially game-changing case on gender on Dec. 4 that could delve into the hotly-debated body of evidence surrounding medical care involving gender identity and how it informs state laws.
The case,
U.S. v. Skrmetti, focuses on Tennessee’s law prohibiting minors from undergoing so-called “gender-affirming care.” The Tennessee law in question forbids certain medical procedures, which includes administering cross-sex hormones and puberty blockers.
Major medical organizations have backed these procedures as ways to reduce distress children experience from believing they are a different gender from their biological sex. On the other side of the debate, conservatives and governments like Tennessee’s say the evidence is unclear or shows harmful effects to children.
“Our intent was to adhere to our compelling state interest to protect kids, and we do that in a myriad of ways,” Tennessee Senate Majority Leader Jack Johnson, who sponsored the law, told The Epoch Times. Meanwhile, U.S. Solicitor General Elizabeth Prelogar said laws like Tennessee’s prevent “medically necessary care” and increase risk of suicidality.
In taking the case, the Supreme Court has decided to take up a question that is fundamentally legal in nature rather than resolving whether the procedures themselves are effective. More specifically, it’s poised to address whether the law violates the Equal Protection Clause of the 14th Amendment.
Those legal questions may provoke the court’s consideration of the evidence as in the U.S. Court of Appeals for the Sixth Circuit. That
decision, to allow the implementation of Tennessee’s law, is the basis for Prelogar’s petition to the Supreme Court.
However the court rules, their decision could impact thousands of individuals and raise various related legal issues such as the constitutionality of laws designed to ensure men don’t participate in women’s sports. According to a
tracker by KFF, an organization formerly known as Kaiser Family Foundation, there are 26 states that restrict “gender affirming care” for youth.
In 2022,
Reuters analyzed insurance records and found that the number of children diagnosed with gender dysphoria tripled from 2017 to 2021, when it reached around 42,000 cases.
During that four-year timeframe, nearly 15,000 minors with a prior gender dysphoria diagnosis started using taking hormones, which affect secondary sex characteristics like the distribution of fat. In total, 17,683 individuals aged 6–17 with a prior diagnosis started either puberty blockers or hormones during that period.
Levels of Scrutiny
Alliance Defending Freedom Vice President of Appellate Advocacy John Bursch told The Epoch Times that the Supreme Court is dealing with legal questions that “shouldn’t require any balancing of evidence.”“Either the courts defer to a state legislative determination about the practice of medicine or they don’t,” he said. He added, however, that he thought it was “highly likely that the justices will be influenced by what they think the scientific evidence says in this case.”
Prelogar is asking the court to address whether Tennessee’s law violates the 14th Amendment, which courts have applied with varying levels of scrutiny for state laws.
In its decision last year, the sixth circuit held that Tennessee’s law, and a similar one from Kentucky, should only be subject to a rational basis review, which is a relatively low standard requiring that legislatures have a rational basis for the law. This is the same level of scrutiny the Supreme Court
said should apply to abortion restrictions in its decision overturning Roe v. Wade.
Rational basis, the majority said, didn’t require a debate about evidence, but “even if we account for the evidence submitted at the preliminary injunction hearing, Kentucky and Tennessee offered considerable evidence about the risks of these treatments and the flaws in existing research.”
It added, “The unsettled, developing, in truth still experimental, nature of treatments in this area surely permits more than one policy approach, and the Constitution does not favor one over the other.”
Prelogar said that the law should instead be subject to and fail under a higher standard known as heightened scrutiny. Sixth Circuit Judge Helen White penned a dissent in which she similarly said the law was subject to a higher level of scrutiny and that the laws in question “lack[ed] an exceedingly persuasive justification.”
She went on to state that major medical organizations supported the procedures. “Gender-affirming care is well accepted as a treatment for gender dysphoria,” White said.
The Evidence
Tennessee Attorney General Jonathan Skrmetti
said in his brief to the Supreme Court that the law could pass any level of scrutiny. “Tennessee’s law serves governmental interests that are not just important, but compelling,” he said, referring to two different levels of government interest involved in scrutinizing laws.
The law’s “prohibition of these risky and potentially irreversible medical interventions for minors was substantially related to the achievement of its goals,” he said, adding that the evidence didn’t support assertions about the benefits of these procedures.
A long list of medical organizations, including the American Academy of Pediatrics (AAP) and the American Medical Association, filed an amicus brief in September that joined others in claiming that so-called “affirming care” was beneficial and helped prevent distress.
“If untreated or inadequately treated, gender dysphoria may lead to depression, anxiety, self-harm, and suicidality,” they said. They pointed to studies like one from 2020 published in the journal Pediatrics that
found “a significant inverse association between treatment with pubertal suppression during adolescence and lifetime suicidal ideation among transgender adults who ever wanted this treatment.”
Meanwhile, Tennessee and others have questioned the evidentiary basis for those recommendations.
Many of the amicus briefs point to the United Kingdom, where the country’s health secretary restricted
prescriptions of puberty blockers following a report from pediatrician Dr. Hilary Cass.
Her
report, which reviewed existing evidence, stated that “there continues to be a lack of high-quality evidence in this area.” In January, the World Health Organization
said it would decline issuing guidelines for care for youth “because on review, the evidence base for children and adolescents is limited and variable regarding the longer-term outcomes of gender affirming care for children and adolescents.”
Harms
Critics also point to claims the Endocrine Society and World Professional Association for Transgender Health (WPATH) have made about the available evidence and potential harms to young people.
WPATH’s guidance
acknowledges “clinically significant” risks of infertility and blood clots. The procedures also carry risk of cardiovascular and cerebrovascular disease and Type 2 diabetes, among other conditions.
The Endocrine Society similarly
lists blood clots, coronary artery disease, cerebrovascular disease, and breast cancer as risks associated with cross-sex hormones. Its guidance says that “testosterone will result in ... temporary or permanent decreased fertility.”
AAP and others said in their brief that “puberty blockers can can make pursuing transition later in life easier, because they prevent irreversible bodily changes such as protrusion of the Adam’s apple or breast growth.”
Discussion of permanent changes could be especially significant given that some people have
changed their minds about attempts at transition and later brought legal action against their doctors and medical groups, alleging permanent harm.
Movie star Eliot Page and a long list of others submitted an
amicus brief stating that “a common sentiment that can be drawn from their stories is that they are glad they chose to benefit from gender-affirming care, with their only regret being that they did not receive that care earlier in their lives.”
A
brief from individuals of the “larger detransitioners community” stated that “pediatric gender affirming care negatively impacted their individual rights.” Part of their brief argued that informed consent wasn’t possible for minors in this area. “Minors may lack in capacity to consent because they may not to understand what is involved in a medical decision,” the brief read.
AAP and other organizations have emphasized the role of professionals in managing an incremental approach to these procedures in order to mitigate potential harms.
