A conservative U.S. Supreme Court appeared ready to side with Tennessee in upholding the state’s ban on gender-affirming care for minors, a case likely to set legal precedent on equal protection for transgender children in Kentucky and other states.
A decision from the court isn’t expected until June 2025, but Republican-appointed justices such as Samuel Alito, Clarence Thomas, and Brett Kavanaugh tipped their hands on how they would rule during three hours of oral arguments in Washington, D.C.
They were countered by the court’s liberal justices, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson, who are outnumbered 6-3.
Conservative justices appeared leery of creating a protected class, but Jackson, for instance, indicated the law clearly discriminates on the basis of sex. Jackson used the Loving v. Virginia case that allowed racially integrated marriages to show that similar arguments were made against those types of unions some 50 years ago.
Three families with transgender children and Memphis Dr. Susan Lacy sued the state, then the federal government intervened on behalf of the plaintiffs who are challenging Tennessee’s ban on puberty blockers and hormone therapy to allow minors to make a sex transition.
Thomas, for instance, asked the federal government’s attorney why the case would be a matter of age classification, as opposed to sex. Alito and Kavanaugh raised questions about the United Kingdom and European countries dialing back support for gender-affirming care.
In addition, Chief Justice John Roberts said the court is “not the best situated to address issues” such as gender-affirming care and should allow legislatures to make those types of decisions.
Tennessee lawmakers passed Senate Bill 1 in 2023 following an uproar over reports by a right-wing radio commentator that Vanderbilt University Medical Center was performing surgeries and administering puberty blockers and hormone therapy to children. Surgical procedures are not part of the question, and Vanderbilt said it wasn’t performing them when the issue erupted.
The bill that was signed into law Gov. Bill Lee says Tennessee has a “compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty,” and in blocking treatments “that might encourage minors to become disdainful of their sex.
The American Civil Liberties Union, ACLU Tennessee, Lambda Legal and Akin Gump Strauss Hauer & Feld filed suit against Tennessee, claiming the equal protection rights of children seeking to change sexes were violated. The law was struck down in U.S. District Court, but that decision was overturned by the 6th Circuit U.S. Court of Appeals, and the U.S. Supreme Court agreed to hear it.
In Kentucky, the legislature also in 2023 enacted a similar ban on gender affirming medical care for minors, as part of a sweeping anti-LGBGT bill. Democratic Gov. Andy Beshear vetoed the measure but the legislature’s Republican supermajority easily overrode the veto. Kentucky’s law also was blocked at the federal district court level. The 6th Circuit U.S. Court of Appeals then combined the Tennessee and Kentucky cases and upheld both states’ bans.
Tennessee’s legal strategy is based on the premise that the 2023 law prohibiting puberty blockers and hormone therapy for youths is based on “medical purposes,” not a child’s sex.
In contrast, attorneys for the plaintiffs said Senate Bill 1 creates a blanket ban on gender affirming care based entirely on a child’s desire to change sexes. They pointed out children suffering from gender dysphoria could be prone to suicide if they don’t receive puberty blockers or hormone treatments that enable them to start the transition toward a sex different from their birth sex.
Attorneys for the plaintiffs say the Supreme Court should give the matter “heightened scrutiny,” or a closer examination, because it involves discrimination against transgender children rather than review it under standard “rational basis,” which is typically used when a law doesn’t involve a constitutional right.
Elizabeth Prelogar, solicitor general for the Department of Justice, told the justices the state of West Virginia enacted a law that set up requirements for undergoing gender affirming care, whereas Tennessee passed a blanket ban affecting children seeking to transition to another sex.
Justice Kagan made the point that the law is based on “transgender status” and not sex alone. She also said Tennessee appears to want to “conform to sex stereotypes.”
Kavanaugh stuck with the argument that some transgender people want to switch back to their original sex when they get older but are physically unable to make the change.
“How do we as a court choose which set of risks is more serious when we constitutionalize?” Kavanaugh said.
This story is republished from the Tennessee Lookout, a sister publication to the Kentucky Lantern and part of the nonprofit States Newsroom network.
