Supreme Court to review Tennessee law banning gender transition care for minors

More than 100,000 transgender teens live in one of the roughly two dozen states that have banned gender-affirming medical care, an issue that has emerged at the forefront of the country’s cultural and political divisions in recent years.

The Supreme Court expanded labor protections to lesbian, gay, bisexual and transgender workers in 2020, but has not yet ruled on the constitutionality of lower court decisions involving transgender minors, bathroom access or athletes.

Attorney General Elizabeth B. Prelogar, representing the Biden administration, told the justices that the uncertainty of conflicting lower court rulings on gender-affirming care is “imposing serious consequences on families across the country who are being forced to make decisions important questions about whether to leave their homes, jobs, schools, and communities in hopes of preserving access to needed medical care for their children, without knowing whether prohibitions in their state and neighboring states will be maintained or prohibited.”

Lawyers defending Tennessee’s ban told the court that the U.S. Constitution does not give parents the right to demand “medical interventions for children that a state deems unproven and unduly risky.”

“Tennessee, like many other states, acted to ensure that minors did not receive these treatments until they could fully understand the lifelong consequences or until the science was developed to such a degree that Tennessee could take a different view of its effectiveness,” the office of Tennessee Attorney General Jonathan Skrmetti (R) said in a court filing.

Leading American medical organizations agree that gender-affirming care is safe, effective and may be medically necessary.

The justices’ decision to take up the issue comes as Republican state lawmakers across the country have introduced a record number of measures targeting gay and transgender Americans, including bills to regulate which bathrooms transgender people can use and whether gay and lesbian flags Pride can be flown in public buildings.

Transgender youth, their families and medical providers asked the court last fall to reverse a decision by the 6th U.S. Circuit Court of Appeals that allowed the Tennessee law to take effect. The law prohibits transgender minors in the state from accessing puberty blockers and hormones.

Civil rights advocates say it violates the constitutional right to equal protection and have urged judges to overturn it. “It is crucial to recognize that for trans youth and their families, this is not about politics – it is about the fundamental freedom to access vital, life-saving health care,” said Lucas Cameron-Vaughn, staff attorney at the ACLU of Tennessee. in a statement.

Skrmetti promised to continue defending the law, which, according to him, aims to “protect children from irreversible gender-based treatments”.

“This case will bring much-needed clarity to whether the Constitution contains special protections for gender identity,” Skrmetti said in a statement on X.

The court is expected to hear oral arguments in the case during its next term, which begins in October. The justices are racing to finish the work of the current term, with 10 high-profile decisions still to come this week or next. Those ones cases will determine whether and when Donald Trump could be prosecuted for his actions surrounding the January 6th attack on the US Capitol, access to emergency abortion care, the future of free speech on social media platforms, and more.

Legal experts have long thought the Supreme Court would ultimately have to decide whether state bans on gender-affirming care violate the Constitution, but the court has great flexibility in deciding when and how to take cases.

The Tennessee case, along with another from Kentucky, had been on and off the Supreme Court’s list of cases for consideration at its private conference for several months before Monday’s announcement. The delay suggested that the justices were debating behind closed doors how the high court should handle the issue.

In a separate action in April, the high court allowed Idaho to broadly enforce its ban on gender-affirming medical care for minors while litigation continues before the U.S. Court of Appeals for the 9th Circuit. The Supreme Court’s brief order, which said Idaho’s ban could not immediately apply to the two transgender teenagers who sued the state, did not address the general constitutionality of the grooming ban. The court’s three liberal justices objected to the timing of the court’s intervention. The 9th Circuit is scheduled to hear the case in August.

Historically, the Supreme Court has taken cases where the issue at hand is of great importance and lower courts have issued contradictory rulings.

Last June, federal district courts blocked bans in Tennessee and Kentucky, just months after the laws were enacted. The 6th U.S. Circuit Court of Appeals reversed these injunctions, concluding that the state bans did not violate the equal protection clause or the due process clause of the Fourteenth Amendment.

In a split decision, Judge Jeffrey S. Sutton said courts should not second-guess state lawmakers in this case.

“This is a relatively new diagnosis, with care approaches constantly changing over the past two decades. In these circumstances, it is difficult for anyone to be certain about predicting the long-term consequences of abandoning any type of age limit for these treatments,” wrote Sutton, joined by Justice Amul Thapar.

“This is precisely the kind of situation in which life-long judges interpreting a difficult-to-amend Constitution should be humble and careful in announcing new substantive due process or equal protection rights that limit the elected officials responsible for solving these medical, social and , and political challenges.”

Also last year, the 11th U.S. Circuit Court of Appeals in Atlanta ruled that an Alabama ban could go into effect. In February, the 7th U.S. Circuit Court of Appeals in Illinois temporarily allowed Indiana’s ban to go into effect while litigation continued.

In urging the Supreme Court to take up the issue, the Biden administration said Tennessee law discriminates based on transgender status, prohibiting care only for transgender individuals who suffer from gender dysphoria, while allowing exactly the same treatments when prescribed for any other purpose.

States cannot justify a ban on care that is “consistent with medical consensus and that affected adolescents, their parents and their doctors have concluded is appropriate and essential to their well-being,” Prelogar said in court documents .

The Supreme Court has handed several victories to transgender rights activists in recent years. In 2020, in Bostock v. Clayton County, the court ruled 6-3 that federal labor law protections apply to millions of lesbian, gay, bisexual and transgender workers. The court also declined to review a series of cases in which lower courts ruled in favor of trans rights in schools, prisons and the protection of people with disabilities.

Last year, it also denied West Virginia’s request to allow its law banning transgender girls from playing on girls’ public school sports teams to take effect while legal challenges unfold.

Tobi Raji contributed to this report.