Supreme Court considers Tennessee’s ban on gender-specific care for minors: NPR

Supreme Court considers Tennessee’s ban on gender-specific care for minors: NPR

The U.S. Supreme Court heard arguments in a challenge to Tennessee's ban on gender-affirming care for transgender youth.

The U.S. Supreme Court heard arguments in a challenge to Tennessee’s ban on gender-affirming care for transgender youth.

Saul Loeb/AFP via Getty Images


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Saul Loeb/AFP via Getty Images

The Supreme Court’s conservative majority appeared most likely Wednesday to uphold Tennessee’s ban on gender-specific care for minors.

In recent years, half of the states have passed similar bans, and Wednesday’s case represented the first test of those laws. Three Tennessee families — and the Biden administration — are challenging the ban, which restricts minors who say their Gender does not match their sex at birth, denying them access to puberty blockers and medications they need to transition to the opposite sex.

Attorney General Elizabeth Prelogar told the justices Wednesday that the state cannot eliminate medically approved treatments for gender dysphoria while allowing it to happen Same medical treatments for suffering minors other Diseases ranging from early puberty to endometriosis.

Prelogar said the state law highlights a specific use in its ban.

“It doesn’t matter what parents decide is best for their children,” she said. “It doesn’t matter what patients would choose for themselves. And it doesn’t matter whether doctors believe this treatment is essential for individual patients.”

It was immediately rejected by the court’s conservatives.

Justice Clarence Thomas went first, asking whether the law is “simply an age rating when it comes to these treatments, rather than a ban?”

Chief Justice John Roberts added that this ban includes medical judgments and studies conducted outside the United States

“Isn’t that a stronger argument for us leaving these decisions to the legislatures rather than trying to make them our own,” he asked.

Justice Samuel Alito listed a list of studies from Sweden, Finland and the United Kingdom that he said showed the harmful effects of these treatments on minors. With that in mind, he asked Prelogar if she would like to change her claim that there is “overwhelming evidence” of the benefits of gender-affirming treatment.

No, Prelogar replied, pointing out that while there is much debate about how this care should be provided, there is “a consensus that these treatments may be medically necessary for some minors.”

When asked by Justice Elena Kagan whether, according to her theory, all state laws should be repealed, Prelogar replied in the negative.

“We believe there is real regulatory scope for states here, and I point to the example of West Virginia,” Prelogar added. “West Virginia was considering a total ban like this, but then the Senate majority leader, a doctor, looked at the underlying studies, and the West Virginia legislature changed course and imposed a set of guardrails that were far more specific to that tailored to concerns about the provision of this care.

Judge Brett Kavanaugh expressed concerns about minors undergoing these transitional treatments, but later regretted it. Kavanaugh, who formerly coached his daughter’s basketball team, also asked Prelogar: “If you get your way here, what would that mean for women’s and girls’ sports?” These questions are different, Prelogar replied, because they concern the right of trans children to participate in sports to participate, against the right of cisgender children who fear that they will be disadvantaged on the playing field.

Both Justice Kavanaugh and Justice Amy Coney Barrett asked about parents’ rights to determine their children’s medical treatment, noting that even if the trans children lose this case, the parents will face a new challenge based on parental rights can come back.

Chase Strangio was next at the lectern representing the trans children, the first openly trans attorney to argue in court. He was also faced with the question of whether these were political and not legal questions. The chief justice focused on the question of whether the Supreme Court even has the authority to deal with such issues.

“It is my understanding,” Roberts said, “that the Constitution leaves this question to the representatives of the people, not nine people, none of whom are physicians.”

Strangio countered that the courts’ role is to determine whether the law is narrow enough. Strangio said the Tennessee Legislature passed “a blunderbuss ban that overrides the careful judgment of the parents who love and care for their children and the doctors who recommended the treatment.”

Tennessee Attorney General Matthew Rice defended the ban, saying the law “permits the use of drugs and surgery for some medical purposes but not for others.” Therefore, he claimed, the law is based on purpose, not purpose the gender.

But Justice Kagan didn’t buy that argument at all. “The forbidden purpose here is to treat gender dysphoria,” she replied. “The whole thing is permeated by sex… It’s a deception to say it’s not sex-based.”

The court’s other two liberals followed suit. Justice Sonia Sotomayor asked whether the state could also block gender-affirming treatment for adults, given Tennessee’s logic. Rice responded in the affirmative, saying that “democracy is the best check on potentially misguided laws.” Judge Sotomayor responded, “When you are 1% of the population or less, it is very hard to see how the democratic process is supposed to protect you.”

Justice Ketanji Brown Jackson raised concerns in his arguments about the broader consequences if the court upheld Tennessee’s law, saying, “I worry that we are undermining the foundations of some of our fundamental equal protection cases.”

Justice Neil Gorsuch, who is usually quick to answer questions, had no answer Wednesday. He is the author of the only court decision on trans rights upholding these rights in the context of employment.

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