WASHINGTON — Conservative Supreme Court justices raised doubts about the challenge to Tennessee’s ban on gender-affirming medical care for transgender minors during oral arguments for United States v. Skrmetti Wednesday.
Enacted in 2023, Tennessee’s Senate Bill 1 bars health care providers from prescribing puberty blockers and hormone therapy to minors with gender dysphoria, even with parental consent. The condition causes distress even with parental consent. The condition causes distress because of a mismatch between their biological sex and their gender identity.
Advocacy groups, including the ACLU and Lambda Legal, challenged the law on behalf of affected families, such as Nashville parents Samantha and Brian Williams and their transgender daughter.
Solicitor General Elizabeth Prelogar, representing the challengers, argued that Tennessee’s blanket ban is both overbroad and harmful, failing to account for health risks tied to untreated gender dysphoria, such as elevated suicide rates among transgender youth.
“Rather than impose measured guardrails, SB1 bans the care outright no matter how critical it is for an individual patient, and that approach is a stark departure from the State’s regulation of pediatric care in all other contexts,” Prelogar said.
Hundreds rally as Supreme Court hears case on gender-affirming care for transgender youth (Emma Richman/MNS)
West Virginia, which requires procedural steps including a psychological evaluation to receive medications for gender dysphoria, was cited as an alternative to the law.
Chief Justice John Roberts rigorously questioned Prelogar asking whether the court should leave health care regulations to state legislative bodies.
“The Constitution leaves that question to the people’s representatives rather than to nine people, none of whom is a doctor,” Roberts said.
Other justices echoed similar concerns, including Justices Clarence Thomas and Brett Kavanaugh.
Justice Kavanaugh also voiced concerns about the medical risks posed to transgender youth, pointing out that some European countries’ research revealed concerns about the effects of hormone therapy on transgender youth.
“If it’s evolving like that and changing and England’s pulling back and Sweden’s pulling back, it strikes me as a pretty heavy yellow light, if not red light, for this court,” Kavanaugh said.
Justice Samuel Alito echoed a similar sentiment, citing Swedish data that appeared to be contrary to the solicitor’s claims that the treatment is more beneficial than risky.
Prelogar pushed back, citing both that Tennessee has not “substantiated those risks” in court and despite those research findings, European countries have not categorically banned medication for transgender youth.
“There has been no change in the law that I’m aware of in Sweden, Finland and Norway. Each of the medical authorities in those states has called for an individualized approach to care,” Pelogar said. “But they have not changed their laws to do anything like what Tennessee is doing here.”
William Eskridge, a Yale law professor who wrote an amicus brief opposing SB1, told the Medill New Service that the WPATH standards of care, transgender therapy guidelines, is approved by the American Medical Association.
“The medical consensus is still in favor of very cautious, medically supervised treatments for adolescents who have serious gender dysphoria,” William Eskridge said, a Yale law professor who wrote an amicus brief opposing SB1. “Name me one significant medical procedure that does not have risks and side effects.”
Matthew Rice, Tennessee’s solicitor general, defended the law by asserting that its focus is on medical intent rather than a patient’s sex, and that the law’s wording, “Inconsistent with sex” was solely used to “describe a single prohibited medical purpose.”
He argued that the measure was designed to protect minors from risk-heavy medical treatments that could have “irreversible and life-altering consequences.” Therefore, the law was not intentionally discriminatory based on sex.
“Just as using morphine to manage pain differs from using it to assist suicide, using hormones and puberty blockers to address a physical condition is far different from using it to address psychological distress associated with one’s body,” Rice said.
The law blocks minors from accessing gender-affirming treatments while still permitting the same medications to be used for other conditions for cisgender youth, such as early-onset puberty. This inconsistency forms part of the critique against the law, which opponents argue is vague and grounded in outdated gender stereotypes.
Yale Law Professor Issa Kohler-Hausman, who co-authored an amicus brief with Yale philosophers and lawyers, described Tennessee’s defense as deeply flawed. Despite the defense’s argument that medications are risky for transgender youth, she said the law aims to enforce gender norms, with SB1 encouraging minors to “appreciate their sex.”
“[Tennessee’s] argument is literally incoherent unless, you’re already packing in social expectations and roles and cultural assumptions into the word ‘sex’, because what the Republican justices and conservative legal activists want to always do, is pretend that they’re using sex in this a purely biological way,” Kohler-Hausman said. “That’s nonsense.”
Justice Sonia Sotomayor pushed back against the state’s argument, noting the high rates of suicide among minors with gender dysphoria.
“One of the Petitioners in this case described throwing up every day, going almost mute because of their inability to speak in a voice that they could live with,” Sotomayor said.
Justice Ketanji Brown Jackson also expressed concern about the court siding with Tennessee, noting that similar reasoning was once used to defend state bans on interracial marriage, which the Supreme Court struck down in 1967.
Jackson cautioned that doing so could erode the principles underpinning key equal protection rulings, questioning whether the court risked weakening its foundational precedents.
“A law is drawing lines on the basis of some suspect classification,” Jackson said.
The Court is expected to release a decision this summer.
