As soon as Thursday justices may vote behind closed doors on whether to grant an appeal that seeks to block a new Tennessee law prohibiting medical treatments that enable a “minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.”
They have been in no hurry to act, however, and it’s possible they will put off the issue again. For weeks, they have repeatedly delayed a vote on the case, likely reflecting a division — either between liberals and conservatives, or perhaps inside the conservative majority.
At stake is the fate of a wave of a new state laws in the South and Midwest that bar transgender teens and their parents from obtaining puberty blockers and other hormones prescribed by a doctor.
Some 24 conservative states have passed restrictions on treatment for transgender youth, potentially affecting about 114,000 minors, or more than a third of transgender youth in the United States, according to The Williams Institute at the UCLA Law School. Many of those state laws have been blocked temporarily by judges.
If the court turns down the Tennessee appeal and says nothing more, it could signal that treatment bans for transgender youth are likely to take effect in about half of the nation. Then the map of the states would largely match the red state-blue state divide on abortion.
If justices agree to hear the appeal, it could put the issue on track for arguments later this year.
Progressive advocates for transgender youth are looking to the Supreme Court for help.
“This is a crisis and the only court that can weigh in to remedy it is the Supreme Court,” said Chase Strangio, the ACLU’s deputy director for transgender justice. “This is wreaking havoc with families who have to leave their homes to protect their children.”
The ACLU and Lambda Legal sued to challenge the Tennessee law on behalf of three transgender adolescents and their parents who had been obtaining hormones from the Vanderbilt University Medical Center.
A federal judge initially blocked the new law. But last July, the Ohio-based 6th Circuit Court in a 2-1 decision became the first appeals court to rule such a law may go into effect.
The state’s lawmakers had questioned the safety and effectiveness of hormone treatments for teens, and 6th Circuit Chief Judge Jeffrey Sutton said “states may reasonably exercise caution in these circumstances.”
Biden administration Solicitor Gen. Elizabeth Prelogar said the state laws impose “a categorical ban on evidence-based treatments supported by the overwhelming consensus of the medical community.” The high court’s “intervention is warranted now,” she said.
Conservative skepticism toward “gender affirming care” was bolstered by a recent report prepared for the National Health Service in England. Dr. Hilary Cass, who led the four-year review, called for caution in treating young people who have gender distress.
“This is an area of remarkably weak evidence,” she wrote. “The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.”
So far, the justices have avoided a clear ruling on the rights of transgender students. When pressed, they have handed down narrow decisions.
Last year, they turned down an emergency appeal from West Virginia’s attorney general and allowed a 12-year-old transgender girl to compete on the girl’s track team at her middle school. The court issued no opinion, but Justices Clarence Thomas and Samuel A. Alito Jr. dissented.
Last month, the court handed down a procedural decision that allowed Idaho’s law to take effect restricting care for transgender youth, but not for the children and parents who sued to challenge it.
The court’s majority in the Idaho case focused on the question of whether a federal judge has the power to block an entire state law if two people sue over one provision. Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson dissented and said the state’s appeal should have been denied.
The conservatives may be divided among themselves on rights for transgender students.
Four years ago, the court surprised many on the right when it ruled that the Civil Rights Act of 1964 forbids employers from discriminating against workers based on their sexual orientation or gender identity.
Justice Neil M. Gorsuch, joined by Chief Justice John G. Roberts Jr., said that because the law forbids job discrimination on the basis of sex, it must be read to include discrimination against LGBTQ+ employees.
“An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex,” Gorsuch wrote in the case of Bostock vs. Clayton County.
Three conservatives dissented from that opinion, and the court has yet to rule on whether this anti-discrimination principle extends to the Constitution’s guarantee of equal protection of the laws.
That legal question is at the heart of the appeals now before the court. The ACLU, Lambda Legal and the Biden administration argue that a law “targeting transgender individuals for disfavored treatment” is a form of sex discrimination and should be struck down as unconstitutional.
They also raise the issue of parents’ rights. The laws in Tennessee, Kentucky and elsewhere should be struck down because they “violate the fundamental right of parents to make decisions concerning the medical care of their children,” they told the court.
Samantha Williams and her husband Brian had sued in Nashville on behalf of their daughter who was identified as L.W.
“It’s hard to overstate the difference that our daughter’s medical treatment has made in her life and our family’s life,” Samantha Williams said when the appeal went to the Supreme Court. “Before coming out and starting to receive this medical care she struggled to make friends, keep her grades up, or even accept hugs from her family. Now, we have a confident, happy daughter who is free to be herself. I want the Justices to see and understand my daughter and recognize her rights under the Constitution like any other person, and to see that if parents like me don’t have the right to determine what’s best for our children, then no parent does.”
In defense of his state’s law, Tennessee’s Atty. Gen. Jonathan Skrmetti described it as a measure “to protect children from unproven medical interventions.”
He said the number of minors receiving gender-dysphoria diagnoses has “exploded” in recent years, and states have “seen a corresponding surge in unproven and risky medical interventions for these underage patients.”
He said state lawmakers had “reasonably concluded that the well-documented risks of cross-sex hormones outweigh any purported benefits” and that “minors lack the maturity to fully understand and appreciate the life-altering consequences of such procedures.”
But the American Academy of Pediatrics, joined by 21 other medical and mental health organizations, filed a friend-of-court brief at the Supreme Court to dispute Tennessee’s contention that the hormone treatments are experimental or ineffective.
About 1.4 million persons in the United States are transgender, they said, and about about 10% of them are teenagers aged 13 to 17. They said “research shows that adolescents with gender dysphoria who receive puberty blockers or hormone therapy experience less depression, anxiety and suicidal ideation … Banning such care can put patients’ lives at risk.”
While the state law also forbids surgical interventions for minors, those provisions are not being challenged in the cases under appeal.
At the 6th Circuit Court, the key question was who should decide on care of minors: parents and their doctors, state legislators or federal judges.
Speaking for the court, Sutton argued for judicial restraint. “Life-tenured federal judges should be wary of removing a vexing and novel topic of medical debate — over the use of innovative, and potentially irreversible, medical treatments for children — from the conventional place for dealing with new norms, new drugs, and new public health concerns: the democratic process.”
In dissent, Judge Helene White said the court should be wary of deferring to the government. “Our nation’s constitutional history teaches that, when a treatment option remains otherwise available to the public, legislatures should not decide whether that treatment is right or wrong for minor children. Parents should make these decisions.”