Conservative Justices Signal Skepticism In Case About Gender-Affirming Care For Minors

The landmark case could reshape transgender rights and sex-based discrimination laws nationwide.

The Supreme Court’s conservative majority expressed skepticism about a challenge to Tennessee’s ban on gender-affirming medical care for transgender youth during oral arguments on Wednesday, in what experts say is the most important transgender rights case the court has ever heard.

The case will determine whether a Tennessee law that bans gender-affirming care for transgender youth violates the Constitution and is a form of sex-based discrimination. U.S. v. Skrmetti, which was first brought by three families of trans children and a Memphis-based doctor, challenges Tennessee’s Senate Bill 1, a state law barring certain young people from receiving medications like puberty blockers or hormone replacement therapy. The law is meant to encourage minors to “appreciate their sex” and prohibits doctors from prescribing these medications in order to help them live as an “identity inconsistent with [their] sex.”

Elizabeth Prelogar, the United States solicitor general, argued that the law violates the equal protection clause of the Fourteenth Amendment because it bars trans youth from taking puberty blockers while allowing cisgender youth to take the same medications to treat different conditions, such as early puberty. (The scope of the case is limited to medication treatments, not surgery.)

“The law restricts medical care only when it induces physical effects inconsistent with birth sex. Someone assigned female at birth can’t receive medication to live as a male but someone assigned male can,” Prelogar said. “That’s a facial sex-classification — full stop — and a law like that can’t stand on bare rationality.”

The United States, which argued on behalf of the trans youth and their families, is hoping that the highest court rules to send the case back down to the 6th U.S. Circuit Court of Appeals with an instruction to apply “heightened scrutiny” — the highest legal standard, often used in civil rights cases. Such a move would force Tennessee to provide evidence as to why it has a compelling interest in upholding this law, posing another hurdle to its enforcement.