The Supreme Court's conservative justices have shown deep skepticism toward calls to overturn Tennessee's ban on transgender surgeries on minors, with several moderates on the bench appearing to hint at a tilt toward state deference during oral arguments.
Potential swing members appeared to be divided largely along ideological lines by Tennessee's blanket ban on sex-change operations on minors in United States v. Scrimetti, and potential swing members seemed wary of thwarting the law.
“We may think we can do as good a job on the evidence here as Tennessee or anyone else, but my understanding is that the Constitution leaves that question to the representatives of the people,” Chief Justice John Roberts said at one point.
“It seems to me that this is something in which we are extraordinarily inexperienced.”
Wednesday was the first time an openly transgender attorney — Chase Strangio, deputy director of transgender justice at the American Civil Liberties Union — presented arguments before the Supreme Court.
Strangio represented respondents who supported the Biden administration's petition against the ban, which was argued by U.S. Attorney Elizabeth Prelogar.
During oral arguments, Roberts introduced counsel as “Mr. Strangio,” which sparked backlash from some conservatives on social media for recognizing the attorney's identified gender. The Supreme Court also used Strangio's preferred pronouns in its docket.
“The underlying science and evidence showed that Tennessee's assertion of harm and its prevalence was not supported. “The district court made factual findings to that effect, which Tennessee did not argue were clearly wrong,” Strangio said in response to Roberts' point, referring to the lower court's finding.
“What they have done here is to impose a gross ban that goes beyond the very careful judgment of the parents who love and care for their children, and the doctors who recommended the treatment.”
Justice Brett Kavanaugh echoed Roberts' sentiment, holding that “the Constitution does not take sides on how to resolve this medical and political controversy.”
“It's just a difficult governance issue as a political issue… for us to come in and pick one side of this, knowing that either way people are going to be hurt by this. There's no kind of perfect way out,” Kavanaugh said. “Why wouldn't this be considered?” An option for policy makers?
Strangio argued that Tennessee was “protecting those who might regret this treatment, much less those who would benefit from it and find it medically necessary.”
When Prelogar was presented with a similar question about boating in the states, she argued that courts should apply intermediate scrutiny. She said the ban went further and that minors who do not feel their gender matches their “birth sex” should have options.
“You need to weigh the risks and benefits. But the state has stepped in here, and in a sharp departure from the way it normally approaches this issue, it has decided to completely override the views of parents, patients and doctors who are grappling with these decisions and trying to make this trade,” she argued.
Other conservative justices on the bench, such as Clarence Thomas and Samuel Alito, took turns trying to poke holes in her arguments.
“I'm not sure this is more than a play on words,” Alito chided at one point.
Predictably, Matthew Rice, the Tennessee attorney general who championed the ban, almost immediately took umbrage with the liberal judges sitting on the bench.
“How many minors must have their bodies subjected to irreparable damage to gain unproven benefits?” he asked, prompting Justice Sonia Sotomayor's dismissal.
“Every medical treatment has risks. “Even with aspirin — there will always be a percentage of the population who undergoes any medical treatment that will suffer harm,” Sotomayor interrupted before conducting a thought experiment in which she suggested that children with chromosomal abnormalities could have such These treatments.
Rice responded with sharp distinction to her point: “We don't agree that a medical condition is the same.”
The Tennessee law in question requires the exclusion of children with birth defects or chromosomal abnormalities.
Rice also stressed that there have been “multiple instances in fairly recent history where we have things like lobotomy, eugenics that have gained widespread acceptance among the medical community and the state has had to step in as a regulator to protect children.”
Several conservative justices, including Alito, Roberts and Kavanaugh, also pointed to developments in Europe where some countries have imposed restrictions on transgender surgeries for minors.
Prelogar and Strangio enjoyed some expected support from several liberal justices including Sotomayor and Elena Kagan.
“I mean no offense, but we all have gut reactions,” Sotomayor said. “For decades, women have been unable to obtain licenses…as lawyers because lawmakers thought we were not strong enough to practice these professions.”
“Some people rightfully believe that gender dysphoria may change in some children, but the evidence is very clear that there are some children who actually need this treatment.”
Kagan strongly implied that the ban on transgender treatment for minors discriminates against them and “disregards transgender youth.” This was something Judge Ketanji Brown Jackson reconsidered as well.
“They look like [like] “The same types of arguments that were made in the 1950s and 1960s, in terms of racial classifications and inconsistencies,” Jackson mused of Tennessee's arguments defending the law.
“It seems to me that we want boys to be boys, and we want girls to be girls, and that is an important goal behind the law,” Kagan urged Rice on the basic intent of the law.
“There is interest in ensuring that minors have enough time to appreciate their gender before undergoing life-altering changes,” Rice responded.
Kavanaugh and later Justice Amy Coney Barrett appeared to disagree with Kagan's points on discrimination, asking whether “the burdens of the law fall equally on boys and girls because neither can transition.”
“I think it would be a mistake to overlook the fact that even apart from any concern for conformity here or sexual stereotypes, this law on its face does not subject boys and girls to equal treatment,” Prelogar said.
Prelogar appears to agree with Barrett's suggestion that “we have no history of legal discrimination against transgender people” in the law.
“I think you may be right,” she acknowledged. She acknowledged that historical discrimination against transgender people may not have been reflected in the laws.
In previous Supreme Court cases that revolved around discrimination, the CJEU has relied on statutory discrimination to help determine the categories of people who faced discrimination. Barrett also noted that courts have been reluctant to classify the elderly and disabled as a “suspect class” because “such rulings are difficult for courts to make.”
At one point, Kavanaugh inquired about the implications for women's sports if Prelogar prevailed, and also noted potential harms from “allowing these treatments,” such as the loss of fertility she later acknowledged.
“I want to be clear that when it comes to access to gender-segregated spaces like gyms and bathrooms, the courts already recognize that these are facial sex classifications that lead to length and scrutiny,” she said.
About halfway through the oral arguments, Jackson admitted she was “kind of nervous” about the questions her bench colleagues were asking that strayed from precedent used to deal with such cases.
“I get that…we're not just starting to evaluate the evidence or why the state says they're doing it, or the scientific basis for it — we're looking at something else when we're trying to determine what classification is being made,” she fretted at one point. .
One noticeably quiet voice during the oral arguments was Justice Neil Gorsuch, who has been a dissident among conservative justices in cases involving the LGBT community in the past — including the landmark 2020 Bostock v. Clayton County opinion that added discrimination protections for people based on sexual orientation or identity. Nationality.
Attorneys on both sides of the case also acknowledged that the issue of parental rights at issue was not before the court in United States v. Scrimetti. This means the case could theoretically find its way to the Supreme Court in the future.
Last year, the volunteer state enacted its ban on health care providers “from performing a medical procedure on a minor or administering to a minor if performing or administering the procedure is for the purpose of enabling the minor to know or live with it.” An alleged identity that does not match the gender of the minor.
This law has sparked a challenge from the Biden administration and led to mixed decisions in lower courts, the latest of which – the US Court of Appeals for the Sixth Circuit – sided with Tennessee.
Other countries have enacted similar policies and achieved mixed results in various legal challenges against them. Recently, for example, a lower court affirmed a similar ban in Missouri.
Before the oral arguments, Tennessee Senate Majority Leader Jack Johnson told The Washington Post that he was “cautiously optimistic” that the Supreme Court would side with the state.
“I would in no way be so arrogant as to predict what the Supreme Court will do. “I have great respect for the court,” he added. “What is really at stake is the rights of states to regulate these types of medical procedures.”
