Supreme Court Justices Express Doubts About Challenge to Prohibition on Gender Procedures for Minors

WASHINGTON—On December 4, the U.S. Supreme Court held oral arguments regarding Tennessee’s prohibition on gender-altering treatments for minors, potentially setting a significant precedent on this matter.

Attorneys Chase Strangio from the American Civil Liberties Union (ACLU) and Elizabeth Prelogar, the U.S. Solicitor General, urged the court to remand Tennessee’s legislation back to a lower court for further consideration. Prelogar asserted that the law represented sex-based discrimination that merits heightened scrutiny under the equal protection clause of the 14th Amendment.

On the other hand, Tennessee Solicitor General Matthew Rice contended that the law does not classify based on sex but rather targets the purposes of cross-sex hormones and puberty blockers. He stated that the equal protection clause does not require states to ignore medical realities and drew a comparison between the acceptance of gender procedures in the medical community and the previous acceptance of eugenics and lobotomies.

During the oral arguments, several justices expressed concerns regarding the changing nature of the debate surrounding this issue and the appropriate level of scrutiny for laws like Tennessee’s. Some justices appeared reluctant to adopt the constitutional interpretation that Prelogar proposed while others suggested that the law was indeed drawing distinctions based on sex.

Justice Clarence Thomas questioned the notion of the law being a sex-based classification, asking instead why it shouldn’t be viewed as an age-based distinction and if there is a difference in the effects of testosterone on females versus males.

Prelogar acknowledged the differences between genders but argued that the state had not demonstrated the risks associated with administering cross-sex hormones.

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Chief Justice John Roberts appeared doubtful that this case was analogous to previous cases and questioned whether the justices should regard it differently in light of the medical complexities involved. Justice Samuel Alito pressed Prelogar on the evidence regarding her statement about the validity of using drugs to treat gender dysphoria, referencing the UK’s decision to limit prescriptions of puberty blockers.

Prelogar insisted that these medications may be essential for individuals experiencing “severe gender dysphoria.” Meanwhile, Strangio argued that Tennessee had barred treatment that alleviates suffering, claiming that the law fails to meet any standard of legal assessment.

Both Prelogar and Justice Sonia Sotomayor pointed out that the UK has not universally prohibited such procedures.

Sotomayor observed, “It is apparent that some children genuinely need this treatment,” highlighting the associated risks of suicide and other negative outcomes for those grappling with dysphoria.

Rice clashed with justices over whether the state was utilizing sex as a determinant in applying these procedures. Justice Elena Kagan argued that the medical intent behind the law was “entirely about sex.”

Sotomayor posed a scenario involving a girl consulting a doctor to prevent breast development, asserting that to address her concerns, the doctor must determine her sex.

Justice Brett Kavanaugh remarked that it appeared to him that the Constitution does not take sides in this matter, recognizing that both the Biden administration and the states that enforce bans on gender-altering treatments for minors had presented compelling arguments for and against such procedures.

“The challenge is that some individuals will suffer as a result,” he remarked to Strangio.

While addressing Prelogar, he expressed apprehension about “constitutionalizing this entire area” by referencing adverse outcomes for people who undergo treatments for gender dysphoria, including those who may reconsider their transition. Rice further argued that it is a question for policymakers rather than for the judiciary.

Prelogar reassured Kavanaugh that the court could produce a “narrow opinion” focused on prohibiting sex-based distinctions if that was a concern about moving too promptly in this area. She also underscored the importance of informed consent, but cautioned that denying procedures to minors may result in the development of physical traits congruent with their biological sex, such as a pronounced Adam’s apple, which could be difficult to reverse.

A district court had previously blocked the ban on cross-sex hormones and puberty blockers, though it concluded that the plaintiffs lacked standing to contest the surgeries section. The U.S. Court of Appeals for the Sixth Circuit later upheld Tennessee’s law, asserting that it was constitutional under the 14th Amendment’s equal protection clause.

Prelogar was at odds with the appeals court’s determination that the law should be evaluated under a rational basis review, where the state must provide a reasonable foundation for the legislation. She argued that the law should undergo heightened scrutiny instead.

The oral arguments included a discussion on the court’s 2020 ruling in Bostock v. Clayton County, where a majority opinion by Justice Neil Gorsuch concluded that discrimination based on sexual orientation and gender identity in the workplace constitutes sex-based discrimination.

During the arguments, Alito queried whether Bostock should be applied to this case. Kagan similarly contemplated whether the law should be interpreted as involving a sex-based classification or as imposing a classification based on “transgender status.”

Alito repeatedly questioned Strangio about the immutability of “transgender status,” stating that immutability is a legal criterion for acknowledging such classifications. Strangio maintained that the discordance between a person’s assigned sex at birth and their gender identity would meet the immutability standard.

In response to Kagan, Prelogar defended the perspective that the court could perceive the law as imposing a sex-based classification, noting that the law focused on procedures incongruent with an individual’s biological sex. She remarked that there should be “space” for states to navigate this medical realm more cautiously than Tennessee has done.

Justice Ketanji Brown Jackson expressed the view that the court should avoid concentrating on the associated risks and benefits, instead focusing on how the law should be defined. She proceeded to inquire about the distinctions the statute makes concerning sex and age.

She also drew a parallel to Loving v. Virginia, which deemed laws prohibiting interracial marriage unconstitutional, suggesting a similarity between Tennessee’s law and restrictions on interracial marriage. Jackson asserted that the Tennessee law was effectively “doing basically the same thing” as Virginia’s ban on interracial marriage, targeting activities deemed inconsistent with certain aspects of identity.

Sotomayor drew similar comparisons to rights struggles faced by African Americans and women.

“When you make up only 1 percent of the population or less, it’s challenging to see how the democratic process will safeguard your rights,” she remarked to Rice.

This story is developing and will be updated accordingly.