The Supreme Court agreed on June 24 to hear a challenge by the federal government to a Tennessee law that prohibits the use of puberty blockers and medical treatments for minors who identify as transgender.
The decision comes as several states have enacted legislation regarding transgender individuals’ treatments, participation in school sports, use of gender-specific bathrooms, and drag shows.
“We fought hard to defend Tennessee’s law protecting kids from irreversible gender treatments and secured a thoughtful and well-reasoned opinion from the Sixth Circuit,” Tennessee Attorney General Jonathan T. Skrmetti said in a statement after the Supreme Court’s decision.
“This case will bring much-needed clarity to whether the Constitution contains special protections for gender identity.”
Lambda Legal, an LGBT group, also welcomed the Supreme Court’s decision to take up the case.
“This Court has historically rejected efforts to uphold discriminatory laws, and without similar action here, these punitive, categorical bans on the provision of gender-affirming care will continue to wreak havoc on the lives of transgender youth and their families,” Tara Borelli, senior counsel at Lambda, said in a written statement.
“We are grateful that transgender youth and their families will have their day in the highest court, and we will not stop fighting to ensure access to this life-saving, medically necessary care.”
The court didn’t explain its decision to review the case, but no justices dissented. At least four of the nine justices must vote to grant a petition for it to move forward.
U.S. Solicitor General Elizabeth Prelogar argued in the petition that the legislation violates the equal protection clause in the 14th Amendment to the U.S. Constitution.
The problem with the Tennessee law, according to Ms. Prelogar, is that it “does not merely ensure informed consent or otherwise regulate the covered treatments” but “categorically forbids them ... in explicitly sex-based terms.”
The affected treatments are banned if they are prescribed for the purpose of enabling a minor “to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat discomfort related to a conflict between the minor’s sex and asserted identity.
However, at the same time, the legislation doesn’t affect treatments if they are prescribed “for any other purpose.”
This means a teenager born male can be prescribed testosterone but a teenager born female cannot, she wrote in the petition.
A federal district court temporarily blocked enforcement of the law. Other courts have also held that similar laws trigger a more intensive level of judicial scrutiny because they discriminate based on “sex and transgender status,” she wrote.
The district court determined that Tennessee’s ban on “evidence-based treatments supported by the overwhelming consensus of the medical community” was unconstitutional. The court held that the statute violated parents’ “fundamental right to direct the medical care of their children.”
However, a divided panel of the Sixth Circuit disagreed and reversed. The circuit court overturned the injunction on July 8, 2023, and held that Tennessee’s appeal against the injunction was likely to succeed.
The court said the problem with the injunction was that it affected millions of residents of the state, instead of only the nine individuals who brought the original legal complaint.
“A court order that goes beyond the injuries of a particular plaintiff to enjoin government action against nonparties exceeds the norms of judicial power. Even if courts may in some instances wield such power, the district court likely abused its discretion by deploying it here,” the circuit court ruled.
Canadian-born actor Elliot Page, who was born Ellen Page, was one of 57 transgender adults who signed on to a brief last December urging the Supreme Court to take up the case.
The signers said in the brief that “early care relieved gender dysphoria and, for some, has even saved their lives.” They began “treatment as minors [and] have no regrets and are emphatic that a delay in treatment—with the resultant progression of permanent and unwanted changes to their bodies—would have caused needless suffering.”
At least 24 states have passed legislation banning transgender surgery for minors, according to the Movement Advancement Project. On the other hand, 15 states and the District of Columbia have approved legislation protecting youth access to transgender medical treatment, according to the group.
The Supreme Court has issued several rulings in transgender cases in recent years.
The court held 6–3 in 2020 that employees can’t be fired from their jobs because of their preferred gender identity. The landmark ruling in Bostock v. Clayton County brought an expanded meaning to the phrase “on the basis of sex,” which describes a kind of discrimination forbidden by the Civil Rights Act of 1964.
Before the ruling, “sex” had been interpreted to refer to biological sex and didn’t include gender identity.
The Supreme Court has sidestepped other cases involving transgender youth.
For example, in Gloucester County School Board v. Grimm in 2021, the justices declined to take up a Virginia case about requiring students to use the bathroom that corresponds to their sex after a lower court determined the policy was unconstitutional.
The student, Gavin Grimm, is female but began identifying as male. She has since graduated from high school and is now an activist in California.
Oral argument in the Tennessee case is expected to take place in the court’s new term that begins in October.
