Sounds to me like ‘we want boys to be boys”: Kagan chides Tennessee for dodging true purpose of transgender medical prohibition at SCOTUS arguments

In a case that might establish a new legal precedent for transgender people’s access to gender-affirming medical care, the US Supreme Court heard oral arguments on Wednesday.

A 2023 Tennessee statute is at the heart of the case. SB1 forbids the prescription of hormone blockers for children with gender dysphoria as well as the use of surgery to address the condition. The protection of kids’ health and welfare is the stated goal of the law.

SB1 only applies to patients who would utilize hormone therapy or medication that delays puberty to change a minor’s designated sex; it does not, however, forbid all patients from receiving such treatments.

Young people who take drugs to treat early or delayed puberty are allowed to keep taking them under the law.

“The state has a legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty,” the Tennessee legislature wrote in the language of the measure.

Similar legislation now forbids gender-affirming healthcare in 26 states. These restrictions’ detractors claim that transgender youngsters are particularly harmed by them, pointing to studies that demonstrate the limitations have a detrimental effect on their mental health.

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The legal dispute

L.W. v. Skrmetti was a lawsuit brought by three transgender kids and their parents against a number of state officials in Tennessee. The statute’s ban on hormone therapy and puberty blockers is the only part of the law that is being challenged in this action; the part that forbids gender-affirming surgery is not.

The main problem is that the statute is being challenged under the Equal Protection Clause, which opponents claim prevents medical care because of a person’s gender.

The challengers prevailed at the district court level. The prohibition was temporarily delayed after U.S. District Judge Eli Richardson, a Donald Trump appointee, determined that SB1 probably violates the right to equal protection.

According to Richardson’s ruling, hormone treatment and puberty blockers are safe, effective, and have risk profiles and efficacies that are comparable to those of many other pediatric medications that Tennessee allows.

Using the rational basis test, the least stringent degree of constitutional review, the United States Court of Appeals for the Sixth Circuit reversed and maintained the prohibition after an appeal.

Limitations on transgender medical care nationwide may result from the case’s conclusion.

In a statement regarding the lawsuit, Chase Strangio, co-director of the ACLU’s LGBTQ & HIV Project, said that laws such as Tennessee’s are discriminatory attempts to deny transgender individuals the protections of the Constitution, not harmless standards of medical care.

The welfare of transgender youth nationwide and their constitutional right to equal protection under the law are being threatened by these prohibitions, which are also discriminatory.

Depending on the classification in question, state regulations that apply differently to various groups of persons are subject to one of three levels of constitutional scrutiny under the Equal Protection Clause of the 14th Amendment to the Constitution.

The validity of laws that define boundaries based on national origin, ethnicity, or religion must be closely examined.

While all other distinctions must pass inspection based on logical grounds, gender distinctions must pass intermediate scrutiny. A statute must pass intermediate scrutiny or be repealed unless it significantly relates to a significant state interest.

Strangio, the first openly transgender attorney to do so, made the argument on behalf of the ACLU before the Supreme Court on Wednesday.

Oral Debates

For over two hours on Wednesday, the justices disputed the statute, with one from Tennessee arguing in favor of it and attorneys from the Biden administration and the ACLU against it.

Only the Court’s liberal minority seemed inclined to give the Tennessee statute further constitutional examination during the protracted proceedings.

Throughout the morning, Justice Neil Gorsuch, who authored the historic Bostock v. Clayton County ruling that supported transgender rights in 2020, said nothing.

The right wing of the Court asked U.S. Solicitor General Elizabeth Prelogar a number of questions including whether SB1 categorizes individuals based on their sex, which would lead to further scrutiny.

Justice Samuel Alito asked Prelogar about how other nations have managed transgender medical treatment, while Chief Justice John Roberts voiced reservations regarding the role of judges in instances with changing standards and medical complexities.

Alito questioned the challengers’ assertion that there is substantial proof that puberty blockers enhance the mental health of teenagers with gender dysphoria.

The justice pointed to research from Sweden and the United Kingdom as proof that this finding is dubious.

Additionally, Alito argued that the Tennessee Act should be seen as a response to the physical disparities between men and women rather than as a sex-based classification.

He continued by drawing comparisons between the current argument and earlier pregnancy cases, where Alito said that there was no issue with equal protection because of the unequal treatment of the sexes.

In order to clarify the meaning of intermediate scrutiny and its purpose, Justice Sonia Sotomayor intervened.

She noted that lawmakers formerly prohibited women from pursuing careers in law or butchery because they thought they were not strong enough. Sotomayor continued by enumerating a few of the grave repercussions of ongoing gender dysphoria, such as substance abuse, suicide, and physical ailments.

In order to ensure that laws that draw boundaries based on gender are scrutinized more thoroughly and that the children who will be subjected to all of these consequences are only forced to do so when it is absolutely necessary, Sotomayor contended that the goal of intermediate scrutiny is to ensure that neither legislatures nor this court make subjective judgments based on gender.

Another possibility put forth by Justice Elena Kagan was for the court to treat the legislation as discriminatory against transgender individuals rather than as one that presents an equal protection issue between men and women.

But while the rest of the world is putting a stop to transgender medical care, Justice Brett Kavanaugh cautioned the Court against constitutionalizing the matter.

When Kavanaugh brought up the issue of transgender girls’ eligibility to play on girls’ sports teams, Prelogar retorted that there are distinct state interests involved in situations involving gender-segregated areas.

Throughout the proceedings, Justice Ketanji Brown Jackson brought up a related topic multiple times: are Tennessee’s reasons for its act comparable to those made in favor of antimiscegenation laws in the 1950s and 1960s?

“If Virginia had only argued what Tennessee is arguing here, I wonder if it could have gotten away with what it was doing,” Jackson pondered.

In an interview with Strangio, Alito argued that being transgender is not always irreversible and resisted the notion of classifying transgender people under a new quasi-suspect classification.

Discordance between birth gender and gender identity does, according to Strangio, satisfy the legal need for immutability, even though people’s gender identities can alter over time.

Strangio added that given the nature of the trait and the history of prejudice, there are strong arguments for giving transgender people suspect or quasi-suspect status, a designation that dictates the degree of scrutiny a legislation governing that status would undergo.

No matter how closely the statute is examined, Kavanaugh contended, Tennessee would be forced to defend it on the grounds of public health and safety concerns, which are difficult to balance because both advantages and disadvantages must be taken into account.

In Loving v. Virginia, Jackson reminded her colleague justice that Virginia had used the same scientific concerns regarding the risk of transgender medical care to support its antimiscegenation law.

Tennessee Solicitor General J. Matthew Rice was questioned harshly by the Court’s liberal side when he sought to maintain the ban.

Rice was talking about the dangers of puberty blockers when Sotomayor cut her off, stating, “I’m sorry, but every medical treatment has a risk, even taking aspirin.”

I don’t think officials decide that one person’s life is worth more than the millions of others who benefit from this treatment,” Sotomayor added. Can you prevent someone of one sex from getting that benefit from someone of another sex?

Kagan nodded, yelling, Saying that this isn’t dependent on sex is a dodge.

Additionally, Kagan contested Tennessee’s stated intent behind the law, which Rice asserted was to shield children from permanent health effects.

“It seems to me that we want boys to be boys and girls to be girls,” Kagan remarked, quoting the language of the act.

The complete oral arguments are available to listen to here.

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