Supreme Court Hears Trans Medication Case

Outside the U.S. Supreme Court building Wednesday afternoon, lawyers supporting state bans on hormonal treatments for young people suffering gender dysphoria spoke more bluntly than they did in front of the justices during oral arguments.

Inside the courtroom, they said the Tennessee law that bans puberty blockers and hormonal treatment for people under 18 was all about "protecting children." They spoke of the need to prevent kids from suffering irreversible changes to their bodies —like loss of fertility, increases in heart troubles, bone loss, and other issues.

Outside the courtroom, their arguments sounded more like the culture wars of 4o to 50 years ago, when Anita Bryant's "Protect the Children" campaign was making its rounds. It echoed the cultural war over state bans 10 years ago over marriage for same-sex couples. Opponents said those bans were to protect children, too.

"The evidence shows that a large majority of [minors suffering from gender dysphoria] will grow out of it, unless they are put on these medications," said J. Matthew Rice, solicitor general for Tennessee. He defended Tennessee's SB 1 before the Supreme Court.
Alabama Attorney General Steve Marshall, who joined Rice at the impromptu post-argument reporter cluster, said the litigation to retain the ability to access medical treatment for minors with gender dysphoria was just an effort "to push a transgender agenda." South Carolina Attorney General, who also jumped in, said the laws of his state and 24 other states passed during the past three years are about "trying to prevent a 12-year-old from using chemical castration."

"We can tell parents when they have to keep their kids in the backseat of a car, and we can restrict kids from buying cigarettes," said SC AG Alan Wilson. These new laws, he said, were no different.

The court heard argument for well over the one hour it had allotted to the case, U.S. v. Skrmetti (Jonathan Skrmetti is the Tennessee attorney general). As so often happens with LGBTQ-related cases, the nine justices seem to be operating from two distinct camps:

The three more progressive justices asking the most questions that challenged the controversial law, and the six more conservative justices asking questions to defend it.

U.S. Solicitor General Elizabeth Prelogar, who spoke on behalf of the Biden administration's opposition to Tennessee's law, spelled out the government's arguments against the Tennessee ban: It violates the U.S. Constitution by discriminating on the basis of sex, in violation of the equal protection clause; because of sex discrimination, the court should scrutinize the law at a heightened level (greater than the easy requirement of simple rational basis); and the Supreme Court should send the case back to the Sixth Circuit U.S. Court of Appeals with instructions to examine the ban with that heightened level of scrutiny.

ACLU attorney Chase Strangio, the first openly transgender person to advocate before the nine justices (and who Chief Justice John Roberts addressed as Mr. Strangio), said the Tennessee law (known as SB 1) had "taken away only the only medicine that has provided relief for patients."

"And do you maintain that these medicines reduce the risk of suicide?" asked Justice Samuel Alito, notoriously hostile to anything LGBTQ.

"I do," said Strangio.

Alito suggested he had not seen any evidence that the treatments for gender dysphoria had "reduced the risk of suicide."

Interestingly, in a press conference on Monday, Rick Colby, a longstanding Republican lobbyist and father of a transgender son, said his child had been "near suicide" when he was finally able to get the hormonal treatment needed.

"It's a real thing," said Colby. Today, he said, his son is thriving."

The case before the court Wednesday originated with one transgender girl and two transgender boys, whose parents filed suit after the Tennessee legislature banned medical treatment for young people diagnosed with gender dysphoria. (Gender dysphoria is defined by the medical profession as clinically significant discomfort that one's sexual identity is different than one's documented gender at birth.) A Memphis doctor, Susan Lacy, joined the lawsuit, which was successful at at the district court. The federal district court judge ruled that the bans enabled "disparate treatment on the basis of sex." But the Sixth Circuit U.S. Court of Appeals disagreed. Both the transgender youth and the U.S. government appealed the Sixth Circuit decision to the U.S. Supreme Court. At least four of the nine justices agreed to hear the U.S. appeal.

The question:

The DOJ petition asked whether the Tennessee law violated the right of transgender youth to equal protection. The petition filed by the ACLU and Lambda Legal on behalf of the transgender youth asked the equal protection question, plus two others: Should the state law be given heightened scrutiny because it discriminates based on sex, and does the state law violate the "fundamental right of parents to make decisions concerning the medical care of their children guaranteed by the Fourteenth Amendment's Due Process Clause"?

In agreeing to hear the appeal, the justices accepted only the U.S.'s petition and defined the question without mentioning equal protection, heightened scrutiny, or parents' rights. And some might say the court's wording of the question was somewhat prejudicial:

"Whether Tennessee Senate Bill 1 (SB l), which prohibits all medical treatments intended to allow 'a minor to identify with, or live as, a purported identity inconsistent with the minor's sex' or to treat 'purported discomfort or distress from a discordance between the minor's sex and asserted identity.'"

According to Tennessee's briefs, SB 1 is needed to "protect children" from receiving medications to block the hormones of puberty and "cross-sex hormones" to enable them to develop attributes of the sex to which they are transitioning. The state says these drugs have the potential to cause infertility, bone loss, sexual dysfunction, and "unknown effects on brain development" during critical brain development years.

The state brief acknowledged that the U.S. Food and Drug Administration has approved puberty blockers to treat young children with hormonal imbalances caused by "precocious puberty" but has not approved them for "gender dysphoria."

While states passing the bans suggest that the diagnosis of gender dysphoria is easily obtained, the official diagnostic manual of the psychiatric profession says a patient must exhibit "clinically significant distress or impairment in social, occupational, or other important areas of functioning" to warrant the diagnosis. In order for a child to obtain such a diagnosis, a doctor must determine that the child is experiencing "a marked incongruence between [their] experienced/expressed gender and assigned gender, lasting at least 6 months," and six additional criteria, including a "strong desire" to be the other sex or an "insistence that one is the other gender."

In challenging the Tennessee law, plaintiffs and the U.S. government rely on the U.S. Constitution's guarantee that each citizen has a right to equal protection of the law. Specifically, Amendment 14 states that "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

In its first brief to the court, Tennessee said the case was about whether equal protection "prohibits States from enacting laws protecting children from sex-transition medical interventions with risks of lifelong harm." Tennessee also sought to examine the rights of parents in the matter, asking "Whether the substantive component of the Due Process Clause gives a parent a right to demand crosssex medical interventions for children that a State has found to be unproven and excessively risky."

A decision is expected by next June.

Below the surface facts:

The brief for the young plaintiffs indicated there are about 1.5 million Americans who identify as transgender.

Chase Strangio, 42, came out as a transgender man while in law school at Northeastern University in Boston. With this case, he became the first transgender attorney to argue before the U.S. Supreme Court. Strangio has worked on some of the most visible legal challenges involving LGBTQ, including Obergefell v. Hodges and Bostock v. Clayton County.

Arguing on behalf of Tennessee at the oral argument in U.S. v. Skrmetti was a former clerk to Justice Clarence Thomas: J. Matthew Rice, 35, who became Tennessee's Solicitor General in March of this year.

In an online press conference two days before argument, Susan Lacy, a Memphis doctor who is part of the legal challenge against SB 1 estimated she has treated more than 800 "kids and adults," and added that treatment for minors already requires parental consent.

Two fathers of transgender youth also spoke at the press conference December 2: Brian Williams, father of lead plaintiff L.W., and Rick Colby, a life-long Republican who said the treatment save his transgender son from suicide.

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