Supreme Court struggles with state ban on gender-transition treatments for trans youth

The Supreme Court warily waded into transgender rights on Wednesday as the justices struggled to decide whether a state law barring the use of puberty blockers and other drugs for transgender children amounts to sex discrimination.

Justices across the ideological spectrum worried about the implications of the case. Democratic appointees fret they could be upending fundamental rulings on interracial marriage if they side with the state, and Republican appointees worry that they might pave the path for transgender athletes to compete in women’s sports or transgender students to claim rights to women’s bathrooms.

Chief Justice John G. Roberts Jr. said the issues and science are evolving so quickly that he wonders if the courts should intervene.

“It seems to me something where we are extraordinarily bereft of expertise,” he said.

Nearly half the states have moved to restrict what supporters call “gender-affirming” treatments for minors.

A 2023 Tennessee law, S.B. 1, bans puberty blockers, hormone therapy and gender transition medical procedures for minors looking to change their birth gender.

The Biden administration and the American Civil Liberties Union say the law amounts to sex discrimination and is discrimination against transgender people.

U.S. Solicitor General Elizabeth Prelogar said the law allows a boy to take testosterone to speed the onset of puberty but a girl wanting to take it to help transition to male is barred.

“It’s a sweeping categorical ban where the legislature didn’t even take into account the significant health benefits that can come from providing gender-affirming care,” she said.

Tennessee Solicitor General J. Matthew Rice said the law is aimed not at sex but rather at the use of the drug. He said it’s not uncommon for medications to be regulated based on use, such as allowing morphine as a pain reliever but barring it for medically assisted suicide.

He said states should be free to make those decisions based on their view of science.

“It becomes a pure exercise of weighing benefits to risks,” he told the court. “All that matters is the medical purpose.”

He denied any sex discrimination.

“If you’re a boy and you go in to get puberty blockers, you can get the puberty blockers if you’re going to use them for precocious puberty. You cannot get the puberty blockers if you’re going to use them to transition. That is not a sex-based line. That is a purpose-based line,” Mr. Rice said.

A federal appeals court has rejected the sex discrimination claims and allowed Tennessee’s law to take effect.

If the justices decide that the law doesn’t implicate sex discrimination, Tennessee has a lower burden in justifying the ban. If the justices rule that the law does discriminate based on sex, the case will go back to the 6th U.S. Circuit Court of Appeals for another review, and Tennessee would be required to meet a higher burden for justifying its policy.

It was the first major transgender rights case that the justices have agreed to hear since 2020, when they decided a civil rights case in favor of LGBTQ challengers, granting them protection from workplace discrimination.

Justice Neil M. Gorsuch, a Trump appointee who authored that 2020 ruling, did not pose any questions to counsel during Wednesday’s arguments.

Other justices worried about where to draw lines.

Justice Ketanji Brown Jackson said if Tennessee is correct about its law not triggering discrimination claims, that could upend the landmark 1967 ruling in Loving v. Virginia that struck down laws against interracial marriage.

“I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases,” she said.

Justice Brett M. Kavanaugh wondered whether a ruling against the state would shut down attempts to keep transgender athletes out of women’s sports or restrict access to bathrooms.

Like Chief Justice Roberts, he pointed to a shifting scientific consensus, with some European nations at the forefront of treatments stepping back.

“It’s obviously an evolving debate,” he said. “England’s pulling back and Sweden’s pulling back. It strikes me as a pretty heavy yellow light, if not a red light, for this court, the nine of us, to come in and constitutionalize the area.”

Ms. Prelogar said the court doesn’t need to tackle those big questions now. She said the justices are deciding only what sort of scrutiny state laws on transgender policies will face, arguing for a heightened standard to protect sex discrimination.

She faulted Tennessee’s law for being too strict. She pointed to a law in West Virginia that allows treatments for transgender youths but only in cases where multiple doctors diagnose gender dysphoria. They must conclude there is a risk of self-harm, rule out other diagnoses and gain parental agreement.

“I think a law like that is going to fare better,” she said.

The court’s liberal-leaning justices complained that Tennessee’s law seemed to pressure minors to embrace their birth sex.

Justice Sonia Sotomayor raised troubling statistics about suicide, drug abuse and other self-harming behaviors in children who struggle with gender dysphoria.

“Some children suffer incredibly,” she said.

Chase Strangio, counsel for the ACLU, who made history as the first transgender lawyer to argue before the justices, said, “S.B. 1 has taken away the only treatment that has helped years of suffering.”

Justice Kavanaugh highlighted those on the other side of the debate who went through a transition and regretted it.

“You can’t ignore the risks on the other side of the balance,” he said.

Ms. Prelogar acknowledged that “maybe a small number” will regret it.

Karen L. Loewy, senior counsel with the pro-LGBTQ Lambda Legal, which teamed up with the ACLU on the case, said they made a persuasive argument against the state law.

“No court should be allowed to disregard the overwhelming evidence supporting both the safety and efficacy of this health care for transgender youth simply because a state legislature passed a mean-spirited bill,” she said. “Politicians have no business interfering with health care decisions for transgender youth, particularly when they, their parents, and their doctors all agree on a medically necessary course of treatment.”

Jonathan Skrmetti, Tennessee’s attorney general, was in the courtroom for nearly three hours of arguments and was admitted to the Supreme Court bar before the hearing.

He said the case goes beyond a “culture war” issue and is based on evidence showing risks to these types of gender transitioning treatments to children.

“I left thinking the justices are very thoughtful about this case and recognize that as the first constitutional case addressing gender identity issues, there is the potential for significant presidential impact, and I thought they were asking thoughtful questions indicating a concern for the bigger picture and I think the length of the argument also indicates this is a case they are paying particular attention to and they want to make sure they get it right,” Mr. Skrmetti said.

The transgender youth medical ban case, United States v. Skrmetti, is one of the blockbusters of the court’s term, which began in October and runs through June.

A decision is expected by the end of June.

• Stephen Dinan contributed to this report.