By Adam Liptak and Emily Bazelon
Members of the Supreme Court’s conservative majority seemed ready Wednesday to uphold a Tennessee law denying transition care to transgender youth, with some of them saying that judgments about contested scientific evidence should be made by legislatures rather than judges.
“The Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor,” Chief Justice John Roberts said.
Justice Ketanji Brown Jackson responded that leaving the question to the states was an alarming abdication of responsibility. “I’m suddenly quite worried,” she said.
The Tennessee law prohibits medical providers from prescribing puberty-delaying medication, providing hormone therapy or performing surgery to treat what the law called “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” But the law allows those same treatments for “a congenital defect, precocious puberty, disease or physical injury.”
More than 20 other states have similar laws. The court’s decision, expected by June, will almost certainly yield a major statement on transgender rights against the backdrop of a fierce public debate over the role gender identity should play in areas as varied as sports, bathrooms and pronouns.
The wide-ranging argument, which lasted 2 1/2 hours, touched on the approaches of other nations, the relevance of a previous ruling protecting transgender workers from workplace discrimination and the rights of parents.
But the core question the justices focused on was whether the Tennessee law made distinctions based on sex, which would subject it to a demanding form of judicial scrutiny and make it harder for the law to survive.
Three families and a doctor sued to challenge the law, and the Biden administration intervened on their side. The challengers said the law violated the Constitution by denying equal protection to transgender people, primarily by discriminating against them based on sex.
J. Matthew Rice, Tennessee’s solicitor general, disagreed, arguing that the law was passed for medical purposes, and several of the conservative justices appeared to agree that it did not amount to sex discrimination.
“The burdens of the law fall equally on boys and girls, because neither can transition,” Justice Amy Coney Barrett said, repeating and seeming to endorse a point made by Justice Brett Kavanaugh.
Some conservative justices also seemed inclined to follow the court’s approach in overturning Roe v. Wade in 2022. In that case, the majority said regulating abortion was a matter for the states.
So, too, Kavanaugh said, is gender transition care.
“The Constitution doesn’t take sides on how to resolve the medical and policy debate,” he said. “The Constitution is neutral on the question.”
Assessing the court’s ultimate direction was complicated by the silence of one justice in the conservative majority, Justice Neil Gorsuch, who wrote the opinion in the employment discrimination case. But it seemed probable that there were at least five votes for rejecting the equal protection challenge to the law.
Over the past decade, as the number of adolescents identifying as transgender has risen sharply, doctors around the world have weighed the risks and benefits of what is called gender-affirming care, or treatments like puberty blockers, hormones and surgeries that align their bodies with their gender identities.
Most doctors in the United States support gender treatments for adolescents, based on guidelines written by professional medical groups. But in Europe, countries including Sweden, Finland, Norway and Britain have limited gender-related medical treatments for teenagers after scientific reviews that found weak evidence of long-term benefits.
No European country has categorically banned gender medications for minors as Tennessee and more than 20 other states have done, almost entirely under Republican leadership. In Britain, for example, young people can get prescriptions for puberty blockers in clinical trials. And in contrast with states in the United States where bans extend until the age of 18, teenagers can have access to hormone treatments at the age of 16.
Several justices noted that some European countries have become wary of some kinds of transgender care.
“England’s pulling back and Sweden’s pulling back,” Kavanaugh said. “It strikes me as a pretty heavy yellow light if not red light for this court to come in, the nine of us, and constitutionalize the whole area when the rest of the world, or at least the countries that have been at the forefront of this, are pumping the brakes.”
The Tennessee law is different from the European responses, said Elizabeth B. Prelogar, the U.S. solicitor general, who argued on behalf of the Biden administration. “It’s a sweeping categorical ban,” she said.
Most of the argument concerned whether the Tennessee law drew distinctions based on sex.
Justice Elena Kagan said a more straightforward approach was available. “There’s another way of looking at a law like this, maybe a more obvious way,” she said, “which is that it’s a classification based on transgender status.”
Among the factors the court has used to determine whether to grant protected status to groups warranting heightened scrutiny are whether their traits are immutable and whether they have political power.
Justice Samuel Alito said gender identity is not always fixed and so cannot be said to be immutable.
“There are individuals who are born male, assigned male at birth, who at one point identify as female, but then later come to identify as male,” he said.
Chase B. Strangio, a lawyer with the American Civil Liberties Union representing the families challenging the law, said that “the discordance between a person’s birth sex and gender identity has a strong biological basis and would satisfy an immutability test.”
Kavanaugh asked questions about sports, suggesting that it may not be “logically and legally possible” to strike down the Tennessee law but to uphold “laws that limit women’s and girls sports to exclude transgender athletes.”
Prelogar responded that the two kinds of laws are different. Letting transgender women play on sports teams affects the other players, she said.
“There’s nothing like this here,” she added. “Allowing transgender individuals who have carefully thought about this and consulted with their parents and their medical team to access these medications that have health benefits recognized here and abroad in no way affects the rights of other people.”
The Supreme Court has only once before heard arguments in a case on transgender rights. The question in that case, Bostock v. Clayton County, decided in 2020, was whether a federal civil rights law protected transgender people from employment discrimination.
The court said yes, relying on the law’s prohibition of discrimination “because of sex.”
“It is impossible,” Gorsuch wrote for a six-justice majority, “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
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