The Supreme Court’s conservative justices displayed deep skepticism towards pleas to quash a Tennessee ban on transgender surgeries for minors, with several moderates on the bench seemingly hinting at an inclination toward state deference during oral arguments.
Appearing to largely splinter along ideological grounds over Tennessee’s sweeping ban against performing operations on minors to alter their sex in the case United States v. Skrmetti, potential swing members sounded wary of scuttling the law.
“We may think that we can do just as good a job with respect to the evidence here as Tennessee or anybody else but my understanding is that the Constitution leaves that question to the people’s representatives,” Chief Justice John Roberts contended at one point.
“It seems to me that is something where we are extraordinarily bereft of expertise.”
Wednesday marked the first time an openly transgender attorney — Chase Strangio, the deputy director for transgender justice at the American Civil Liberties Union — delivered arguments before the high court.
Strangio represented respondents that buttressed the Biden administration’s petition against the ban, which was argued by US Solicitor General Elizabeth Prelogar.
During oral arguments, Roberts introduced to the attorney as “Mr. Strangio,” drawing blowback from some conservatives on social media for acknowledging the gender with which the attorney identifies.
The Supreme Court also utilized Strangio’s preferred pronouns on its docket sheet.
“The underlying science and the evidence showed that Tennessee’s assertion of harm and their prevalence were not supported. The district court made factual findings to that effect, of which Tennessee has not argued were clearly erroneous,” Strangio argued in response to Roberts’ point, referring to a lower-court finding.
“Here what they’ve done is impose a blunderbuss ban overriding the very careful judgment of parents who love and care for their children, and the doctors who have recommended the treatment.”
Justice Brett Kavanaugh echoed Roberts, contending that “the Constitution doesn’t take sides on how to resolve that medical and policy debate.”
“It’s just a difficult judgment call as a matter of policy … for us to come in and to choose one side of that, knowing that either way people are going to be harmed this. There’s no kind of perfect way out,” Kavanaugh surmised. “Why isn’t that a choice for policymakers?”
Strangio argued that Tennessee was “protecting those who may come to regret this treatment which are much, much smaller than those who benefit and find it medically necessary.”
When Prelogar was presented with a similar question about punting to the states, she contended that the courts should apply intermediate scrutiny. She argued that the ban went too far and that minors who don’t feel their gender aligns with their “birth sex” should have options.
“You need to weigh risks and benefits. But the state has come in here, and in a sharp departure from how it normally addresses this issue, it has completely decided to override the views of the parents, the patients, the doctors who are grappling with these decisions and trying to make those trade-offs,” 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 that’s anything more than a play on words,” Alito chided at one point.
Predictably, Matthew Rice, Tennessee Solicitor General, who defended the ban, almost immediately chafed with the liberal justices on the bench.
“How many minors have to have their bodies irreparably harmed for unproven benefits?” he asked, setting off Justice Sonia Sotomayor.
“Every medical treatment has risk. Even taking Aspirin — there is always going to be a percentage of the population under any medical treatment that’s going to suffer harm,” Sotomayor interjected before turning thought experiment in which she noted that children with chromosomal anomalies could get such treatments.
Rice hit back, drawing a sharp distinction with her point: “We do not agree that the medical condition is the same.”
The Tennessee law in question entails a carveout for children with congenital defects or chromosomal anomalies.
Rice also underscored that there have been “multiple instances in somewhat recent history where we have stuff like lobotomy, eugenics that had widespread acceptance among the medical community and the state had to intervene as a regulator to protect children.”
Several conservative justices, including Alito, Roberts and Kavanaugh, also pointed to developments in Europe in which some countries were enacting restrictions on transgender surgeries for minors.
Prelogar and Strangio enjoyed some predictable backup from several liberal justices including Sotomayor and Elena Kagan.
“I’m not intending to insult, but we all have instinctual reactions,” Sotomayor argued. “For decades, women couldn’t hold licenses … as lawyers because legislatures thought that we weren’t strong enough to pursue those occupations.”
“Some people rightly believe that gender dysphoria may be changed in some children, but the evidence is very clear that there are some children who actually need this treatment.”
Kagan heavily insinuated that the ban on transgender treatments for minors was discrimination against them and a “disregard for young people who are trans.” This was something Justice Ketanji Brown Jackson revisited as well.
“They sound [like] the same kinds of arguments that were made back in the day, 50s, 60s, with respect to racial classifications and inconsistencies,” Jackson mused about Tennessee’s arguments defending the law.
“Sounds to me like we want boys to be boys, we want girls to be girls and that’s an important purpose behind the law,” Kagan pressed Rice about the underpinning intention of the law.
Rice countered that “there is an interest in making sure that minors have enough time to appreciate their sex before undergoing life-altering changes.”
Kavanaugh and later Justice Amy Coney Barrett appeared to push back on Kagan’s points about discrimination, asking whether “the burdens of the law fall equally on boys and girls because neither can transition.”
“I think it would be wrong to overlook the fact that even separate and apart from any interest in conformity here or sex stereotyping, this is a law on its face that does not subject boys and girls to equal treatment,” Prelogar contended.
Prelogar appeared to agree with Barrett’s suggestion that “we don’t have a history of de jure discrimination against transgender people” in law.
“I think you may be right. Historical discrimination against transgender people may not have been reflected in the laws,” she admitted.
In past Supreme Court cases revolving around discrimination, the bench leaned on de jure discrimination to help identify classes of people who faced discrimination. Barrett also noted that the courts had been reluctant to classify the elderly and disabled as a “suspect class” because “those are judgments that are pretty hard for courts to make.”
At one point, Kavanaugh inquired about the implications for women’s sports if Prelogar were to prevail and also took note of the potential harms from “allowing these treatments,” such as lost fertility which she later acknowledged.
“I want to be clear that when it comes to access to sex-separated spaces like sports and bathrooms, courts already recognize that those are facial sex classifications that trigger height and scrutiny,” she said.
Almost halfway through oral arguments, Jackson conceded that she was “getting kind of nervous” about questions from her colleagues on the bench that were straying away from precedents used in handling such cases.
“I understood that … we don’t just kind of launch into an assessment of the evidence or why the state is saying that they’re doing this, or the scientific basis for it — that we’re looking at something else when we’re trying to determine is a classification, being made,” she fretted at one point.
One noticeably quiet voice during oral arguments was Justice Neil Gorsuch, who has been something of a maverick among conservative justices on LGBTQ-related cases in the past — including the landmark 2020 opinion Bostock v. Clayton County that added discrimination protections for people on the basis of sex orientation or gender identity.
Attorneys on both sides of the case also acknowledged that the parental rights question in the matter was not before the court in United States v. Skrmetti. Meaning that the issue could theoretically find its way back to the high court in the future.
Last year, The Volunteer State enacted its ban on health care providers “from performing on a minor or administering to a minor a medical procedure if the performance or administration of the procedure is for the purpose of enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.”
That law had triggered a challenge from the Biden administration and drew mixed decisions in the lower courts, the most recent of which — the US Court of Appeals for the Sixth Circuit — sided with Tennessee.
Other states have enacted similar policies and drawn mixed results in various legal challenges against them. Recently, for example, a lower court affirmed a similar ban in Missouri.
Ahead of oral arguments, Tennessee Senate Majority Leader Jack Johnson told The Post that he was “cautiously optimistic” the Supreme Court would side with the state.
“By no means would I be so presumptuous as to predict what the Supreme Court will do. I have tremendous respect for the court,” he added. “What’s at stake is effectively the rights of states to regulate these types of medical procedures.”
