The U.S. Supreme Court on Dec. 4 took up a major case on medical care for transgender youth, with the potential implications for schools bubbling just below the surface鈥攁nd at times coming up during the arguments.
鈥淚f you prevail here on the standard of review, what would that mean for women鈥檚 and girls鈥� sports in particular?鈥� Justice Brett M. Kavanaugh asked U.S. Solicitor General Elizabeth B. Prelogar, who is challenging a Tennessee law that bars puberty blockers and hormone therapy if they are meant to help transgender minors transition to a gender identity that鈥檚 different from their sex assigned at birth.
Tennessee is one of 23 states with laws limiting such medical treatments, while many states also have laws that bar transgender women and girls from participating in female school sports. The issue in is whether the Tennessee medical law violates the 14th Amendment鈥檚 equal-protection clause. Some of the transgender athlete laws have been challenged on that same basis.
While schools do not perform medical interventions on students, despite false claims from President-elect Trump, separate court cases over whether schools need to notify parents that students have assumed different names or pronouns have effectively claimed that those social transitions could lead to medical ones鈥攁nd the issue of sports teams that trans students may play on has become a red-hot matter of debate, one the justices addressed during the oral arguments.
鈥淲ould transgender athletes have a constitutional right, as you see it, to play in women鈥檚 and girls鈥� sports鈥攂asketball, swimming, volleyball, track, et cetera鈥攏otwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes?鈥� Kavanaugh said.
Prelogar, who is part of the Biden administration that is also challenging some of those athletics laws, sought to walk a delicate line by suggesting the court could subject the medical law to a heightened standard of constitutional scrutiny, one that might lead to it being invalidated, while leaving the transgender athletes issue for another day.
鈥淚t鈥檚 obviously a different set of governmental interests that are being asserted there, and those would have to be analyzed in their own right,鈥� Prelogar said. 鈥淏ut I think that this court, if it wants to preserve space to make clear that nothing here should be understood to affect the separate questions that are arising there, the court could very well do so.鈥�
State argues that it is regulating medical procedures
The plaintiffs are arguing that the Tennessee law, known as SB 1, has created sex-based classifications that violate the equal-protection clause, because the state does not bar puberty blockers or hormone treatments for minors for purposes not related to gender dysphoria (such as a treatment for premature puberty).
鈥淥n its face, SB 1 bans medical care only when it is inconsistent with a person鈥檚 birth sex,鈥� said Chase B. Strangio, an American Civil Liberties Union lawyer representing the private plaintiffs who challenged the law, and the first openly transgender lawyer to argue before the high court.
鈥淭ennessee claims the sex-based line-drawing is justified to protect children,鈥� Strangio said. 鈥淏ut SB 1 has taken away the only treatment that relieved years of suffering for each of the adolescent plaintiffs.鈥�
The U.S. Court of Appeals for the 6th Circuit, in Cincinnati, upheld the law by applying a rational-basis test, the lowest level of constitutional scrutiny, which requires only that a law be rationally related to a legitimate governmental interest.
Tennessee argues that its law is a legitimate regulation of medical treatment for transgender youth who may regret or be harmed by certain treatments.
鈥淭ennessee lawmakers enacted SB 1 to protect minors from risky, unproven medical interventions,鈥� said Tennessee Solicitor General J. Matthew Rice. 鈥淗alf of the states, Sweden, Finland, and the [United Kingdom] all now restrict the use of these interventions in minors and recognize the uncertainty surrounding their use.鈥�
Several of the court鈥檚 conservatives embraced some of the state鈥檚 arguments, with Justice Samuel A. Alito Jr. seizing on recent developments in those European nations to limit treatments for transgender youth. He said an independent review released in Britain earlier this year, known as the Cass Report, 鈥渇ound a complete lack of high-quality evidence showing that the benefits of the treatments in question here outweigh the risks.鈥�
Kavanaugh called treatment for transgender minors 鈥渁n obviously evolving debate.鈥�
鈥淚f it鈥檚 evolving like that and changing and England鈥檚 pulling back and Sweden鈥檚 pulling back, it strikes me as, you know, a pretty heavy yellow light鈥攊f not red light鈥攆or this court to come in, the nine of us, and to constitutionalize the whole area,鈥� he said.
Chief Justice John G. Roberts Jr. said he was concerned about the court deciding issues that were fraught with medical considerations.
鈥淚 understand there鈥檚 a dispute between both sides on how extensive any evolution or increase in uncertainty in Europe has been and elsewhere,鈥� Roberts said. 鈥淎nd, of course, we are not the best situated to address issues like that. 鈥� Doesn鈥檛 that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?鈥�
Among the court鈥檚 other conservatives, Justice Clarence Thomas seemed sympathetic to Tennessee鈥檚 arguments; Justice Amy Coney Barrett suggested that law鈥檚 challengers could still press their parental-rights claims if they lost on the equal-protection arguments; and Justice Neil M. Gorsuch said nothing. Gorsuch wrote the court鈥檚 landmark 2020 decision in , which held that Title VII of the Civil Rights Act of 1964 protected workers on the basis of sexual orientation and gender identity.
The Bostock decision has been a critical point for those who argue that Title IX, which bars sex discrimination in public schools, should be read to cover sexual orientation and gender identity. President Joe Biden鈥檚 administration issued regulations to that effect, although his regulations have been blocked in 26 states and at least some schools in every other state. But the Title IX debate was not before the justices in the Tennessee medical case.
The court鈥檚 liberal bloc鈥擩ustices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson鈥攁ppeared solidly supportive of transgender rights generally and the view that the Tennessee law is a sex-based classification that violates the equal-protection clause.
鈥淪ome people rightly believe that gender dysphoria may be changed ... in some children, but the evidence is very clear that there are some children who actually need this treatment,鈥� Sotomayor said.
Kagan said that while she agreed the Tennessee law was a sex-based classification in a formal sense, 鈥渨hat鈥檚 really going on here is discrimination against, a disregard for young people who are trans.鈥�
The justices weighed the issue of transgender girls in school sports
The court returned several times to the question of transgender girls and women in school sports, likely motivated by the fact that several cases over such state laws are pending before them.
Kavanaugh cited with evident approval in support of Tennessee law and against heightened scrutiny of laws barring transgender girls from female sports.
Strangio, who is among those fighting to challenge the athletics laws, spoke carefully (as Prelogar had) when he said such athletics laws present 鈥渨holly different interests鈥� than the medical restrictions and thus theoretically might survive heightened scrutiny.
Rice, the lawyer defending Tennessee鈥檚 medical law, said that in his view, the transgender athletes laws were not even being challenged as containing unconstitutional sex-based classifications because challengers are not 鈥渁rguing that we don鈥檛 want there to be [separate] boys and girls sports.鈥�
鈥淲e think [such cases are] fundamentally a transgender-based challenge and not a sex-based challenge,鈥� Rice said.
Prelogar was making perhaps her last argument as solicitor general on behalf of Biden鈥檚 administration. There is some speculation among court observers that Trump鈥檚 administration will seek to reverse the U.S. position in the case, but there is a good deal of uncertainty around that since there are private plaintiffs challenging the Tennessee law.
Prelogar said applying only the basic rational-basis scrutiny to medical laws like Tennessee鈥檚 could lead states to ban such treatments for adults, or to ban adoptions by transgender people, 鈥渙r not allow them to be teachers.鈥�
She referred to one of the plaintiffs challenging the Tennessee law, identified in court papers as Ryan Roe, a 16-year-old transgender male who relied on testosterone treatments to deal with his gender dysphoria.
鈥淩yan鈥檚 gender dysphoria was so severe that he was throwing up before school every day,鈥� Prelogar said. 鈥淗e thought about going mute because his voice caused him so much distress. And Ryan has told the courts that getting these medications after a careful consultation process with his doctors and his parents has saved his life. His parents say he鈥檚 now thriving.鈥�
But under the Tennessee law, the state 鈥渉as come in and categorically cut off access to Ryan鈥檚 care,鈥� Prelogar said. 鈥淎nd they say this is about protecting adolescent health, but this law harms Ryan鈥檚 health and the health of all other transgender adolescents for whom these medications are a necessity.鈥�
A decision in the case is expected by next June.
