The Supreme Court’s conservative majority appears prepared to uphold Tennessee’s law banning gender-affirming healthcare for transgender minors, after more than two hours of wide-ranging arguments and questions on whether trans people can be constitutionally protected from discrimination.
Justice Samuel Alito grilled ACLU attorney Chase Strangio, the first-ever openly trans attorney to present at the high court, to repeatedly cast doubt on whether being transgender is “immutable” and thus protected by anti-discrimination laws.
“I think that the record shows that the discordance between a person’s birth, sex and gender identity has a strong biological basis and would satisfy an immutability test,” Strangio replied.
Justices have been asked to decide whether barring trans kids from medically recommended healthcare qualifies as unconstitutional sex discrimination under the 14th Amendment’s equal protection clause.
During Wednesday’s oral arguments in United States v Skrmetti, several conservative justices suggested they should leave a decision on standards for trans healthcare up to individual states, echoing similar arguments from the landmark ruling that revoked a constitutional right to abortion care.
“The Constitution leaves that up to the people’s representatives, rather than to nine people, none of whom is a doctor,” said Chief Justice John Roberts, referencing the nine-member panel, which includes three justices appointed by Donald Trump, who has vowed to prosecute doctors who prescribe gender-affirming care treatments to minors.
A frustrated Justice Ketanji Brown Jackson said she is “suddenly quite worried” and “getting kind of nervous” that the court is “undermining some of its bedrock equal protection cases” and abandoning its responsibility to hear them.
Tennessee has argued that the state doesn’t discriminate against sex because its ban impacts both boys and girls. The law targets the intended medical purpose to prevent minors from “risky, unproven medical interventions,” according to Tennessee Solicitor General J. Matthew Rice.
Rice compared affirming healthcare to lobotomies and eugenics to argue the state has a duty to intervene.
“Giving testosterone to a boy with a deficiency is not the same treatment as giving it to a girl who has psychological distress associated with her body,” he argued.
But Jackson and Sotomayor repeatedly pointed out that such a distinction is “utterly and entirely about sex” if the law denies the same medical treatment prescribed by a doctor — such as puberty blockers or hormone therapy — for one group because of their gender identity.
“It’s a dodge” to say it’s not about sex, Sotomayor said.
“So the question in my mind is not do policymakers decide whether one person’s life is more valuable than the millions of others who get relief,” she said. “The subject is: can you stop one sex over another from receiving that benefit.”
In her opening statements, Solicitor General Elizabeth Prelogar argued that such a distinction is “facial sex classification — full stop — and a law like that can’t stand on bare rationality.”
