Will the Supreme Court uphold a controversial Tennessee transgender law?

Wednesday, the Supreme Court appeared torn in a high-profile hearing, United States v. Skrmetti, the case determining whether the Tennessee trans law violates the equal protection clause under the 14th Amendment. 

The clause specifically states, “No state can deny equal protection of the laws to anyone within its jurisdiction.” 

Last year, Tennessee adopted a law that prohibits providers from delivering gender-affirming care such as puberty blockers and hormone therapy to transgender minors. Tennessee has a transgender population of over 25,000. The law was signed in March 2023, and it mirrored more than 20 other states with bans on gender-affirming care for transgender minors. 

Human rights groups and families of transgender youth sued the state. The case worked its way to the 6th Circuit, which upheld the ban, before the Supreme Court said it would hear the case.

U.S. Solicitor General Elizabeth Prelogar not only argued the impact of the ruling for other states, but warned ruling in favor of Tennessee could lead to nationwide restrictions on healthcare for transgender minors. 

Treatment risks vs. benefits

Throughout the oral arguments, some justices stressed concerns of irreversible side effects of gender-affirming care, such as impacts on fertility and bone density. However, such medical speculations have been debunked by professionals.

“Every medical treatment has a risk, even taking aspirin,” Justice Sonia Sotomayor said. “There’s always going to be a percentage of the population under any medical treatment that’s going to suffer harm.” 

Prelogar argued the Court should send the case back to the 6th Circuit to be reconsidered under a higher standard of scrutiny or strict scrutiny. 

That means the government must prove the law is narrowly tailored to achieve its result. The Court has applied strict scrutiny in several cases, such as Loving v. Virginia, which ended all racial restrictions on marriage. 

Prelogar also suggested an alternative approach, mentioning West Virginia’s law on the matter. Instead of a total ban on care for minors, the state requires two different doctors to diagnose treatment and a mental health screening. 

“The West Virginia legislature changed course and imposed a set of guardrails that are far more precisely tailored to concerns surrounding the delivery of this care,” Prelogar said. 

Conservative justices appeared skeptical to rule the law as unconstitutional. Chief Justice John G. Roberts and Justice Brett M. Kavanaugh repeatedly suggested that policies involving gender-affirming care should be determined by state governments. 

“Why isn’t that a choice for policymakers?” Kavanaugh asked. 

Liberal justices initially approached the argument with apprehension. After further discussion of potential harm – suicidal ideation, anxiety and depression to transgender youth, they seemed to favor overturning the law. 

Justice Elena Kagan challenged Matthew Rice, the Tennessee solicitor general defending the law, after he denied the law is based on sex. He argued that youth can use puberty blockers for medical reasons such as “precocious puberty,” but not for transitioning.

Kagan pushed back on such arguments. “Sounds to me like we want boys to be boys, and we want girls to be girls,” Kagan said. 

Transgender advocates argue the only way to provide support for people experiencing gender dysphoria is through trans-affirming healthcare.

Supporters outside agreed. “I have never been a more efficacious, proud and effective person in the world if it were not for medical transition,” Junes Romero said.  

Joan Cifredo, a 37-year-old transgender woman, said it was difficult to watch doctors who originally cared for transgender individuals now being pulled from providing such care. She says trans-affirming healthcare is a basic right they’re now fighting for.

“What makes the trans experience difficult is the inability of society to accept us and affirm us for who we are,” Cifredo said.

The justices are expected to issue their ruling before the end of the term.