Tennessee Ban on Gender Transition Care to Be Reviewed by Supreme Court

The Washington Post / Ann E. Marimow, Casey Parks

17:05 JST, June 25, 2024

The Supreme Court on Monday agreed to review a Tennessee law that bans gender transition care for people younger than 18. The case will be the first opportunity the justices have to consider the constitutionality of such restrictions, which more than 20 states have passed since 2021.

The Biden administration urged the court to decide whether states can prevent transgender children, in consultation with their parents and doctors, from seeking treatment such as puberty blockers, which major medical associations have said lower rates of depression and suicide in transgender individuals.

More than 100,000 transgender adolescents live in one of about two dozen states that have banned gender affirming medical care, an issue that has emerged at the forefront of the nation’s cultural and political divides in recent years.

The Supreme Court extended employment protections to lesbian, gay, bisexual and transgender workers in 2020, but has yet to rule on the constitutionality of lower court decisions involving transgender minors, bathroom access or athletes.

Solicitor General Elizabeth B. Prelogar, representing the Biden administration, told the justices that the uncertainty from conflicting lower-court decisions on gender-affirming care is “imposing grave consequences on families across the Nation who are being forced to make weighty decisions about whether to abandon their homes, jobs, schools, and communities in the hopes of preserving access to necessary medical care for their children without knowing whether the bans in their State and neighboring States will be upheld or enjoined.”

Lawyers defending the Tennessee ban told the court that the U.S. Constitution does not give parents the right to demand “medical interventions for children that a state has found to be unproven and excessively risky.”

“Tennessee, like many other States, acted to ensure that minors do not receive these treatments until they can fully understand the lifelong consequences or until the science is developed to the point that Tennessee might take a different view of their efficacy,” the office of Tennessee Attorney General Jonathan Skrmetti (R) said in a court filing.

Major American medical organizations are in agreement that gender-affirming care is safe, effective and can be medically necessary.

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

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

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

Skrmetti vowed to continue to defend the law, which he said is aimed at “protecting kids from irreversible gender 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 argument in the case during its next term, which begins in October. The justices are racing to finish their work for the current term, with 10 high-profile rulings still to come this week or next. Those cases will determine whether and when Donald Trump can be prosecuted for his actions around the Jan. 6 attack on the U.S. 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 eventually have to rule on 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 a separate one from Kentucky, had been on and off the Supreme Court’s list of cases for consideration at its private conference for several months before the announcement Monday. 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 the Idaho ban could not immediately apply to the two transgender teens who sued the state, did not address the overall constitutionality of prohibiting care. 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 when the issue at hand is of great significance and lower courts have issued contradictory rulings.

Last June, federal district courts blocked bans in both Tennessee and Kentucky, just a few months after the laws were enacted. The 6th Circuit reversed those injunctions, finding that the state bans did not violate the equal protection clause or the due process clause of the Fourteenth Amendment.

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

“This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments,” wrote Sutton, who was joined by Judge Amul Thapar.

“That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.”

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

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

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

The Supreme Court has handed several wins to transgender rights activists in recent years. In 2020, in Bostock v. Clayton County, the court ruled 6-3 that federal employment law protections apply to millions of lesbian, gay, bisexual and transgender workers. The court has also declined to review a number of cases where the lower courts had decided in favor of trans rights at school, in prisons and in disability protections.

Last year, it also denied West Virginia’s request to allow its law barring transgender girls from playing on girls’ sports teams at public schools to go into effect while legal challenges to it play out.