Oral arguments at the Supreme Court hearing in the case of United States v. Skrmetti challenging a Tennessee law (SB 1) prohibiting transgender medical treatments on minors played out as expected Wednesday, with comments made and questions asked falling along traditional ideological lines. But, there was one surprise: what wasn’t said.
Conservative Justice Neil Gorsuch who, ironically, authored the majority opinion in a previous Supreme Court case affirming transgender employment rights was silent throughout the hearing and was the only member of the court who did not ask even a single question.
In 2020, Gorsuch sided with the majority in Bostock v. Clayton County, which ruled that a federal civil rights law protected transgender people from employment discrimination.
While Gorsuch’s silence on Wednesday was conspicuous to legal analysts, it didn’t tip them off to which way the court will ultimately rule. Due to a 6-3 conservative majority in the court, Tennessee’s law will likely be upheld, even if Gorsuch once again sides with the three liberal justices.
At Wednesday’s hearing, Biden Administration Solicitor General Elizabeth Prelogar and ACLU lawyer Chase Strangio presented arguments on behalf of the plaintiffs. Their lawsuit asks the Supreme Court to either strike down Tennessee’s law banning transgender medical procedures, such as hormones and puberty blockers, on minors or at least send it back down to a lower court for further scrutiny.
Much of the two-and-a-half hour session was consumed by Prelogar and Strangio laboring to make a strained argument that the Tennessee law discriminates on the basis of sex and, thus, violates the 14th Amendment.
They said their rational was that SB 1 allows some treatments in the case of “a congenital defect, precocious puberty, disease or physical injury,” but denies them to minors who want to transition to a different gender. Furthermore, the law indiscriminately bans the treatments regardless of how vitally necessary they might be, they said.
Liberal justices occasionally chimed in with commentary criticizing the Tennessee law:
- Justice Elana Kagan panned the Tennessee law for discouraging minors from being “disdainful of their sex. “We want boys to be boys and girls to be girls,” she chided.
- Justice Sonia Sotomayor said that the law would exacerbate the high suicide rate among minors with gender dysphoria.
- Justice Ketanji Brown Jackson went so far as to liken Tennessee’s law to those against interracial marriage previously struck down by the court.
In its defense, Tennessee lawyer Matthew Rice explained that SB1 "draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes," like a congenital defect or precocious (premature) puberty.
"Its application turns entirely on medical purpose, not a patient's sex. That is not sex discrimination," Rice said.
"Just as using morphine to manage pain differs from using it to assist suicide, using hormones and puberty blockers to address a physical condition is far different from using it to address psychological distress associated with one's body," Rice said.
The law is designed to "protect minors from risky, unproven medical interventions" that often carry "irreversible and life-altering consequences," Rice explained, noting that the state has an interest in preventing regret and detransitioning, by giving minors time to mature intellectually and appreciate their sex before making a life-altering change.
Conservative justices also had their say, making points in favor of Tennessee’s law.
Justice Brett Kavanaugh said debate about the medical issues at hand is still “evolving” and that "countries at the forefront" of gender-affirming treatments for youth are "pumping the brakes":
"If it's evolving like that and changing, and England's pulling back and Sweden's pulling back, it strikes me as a pretty heavy yellow light, if not red light, for this court."
Likewise, Justice Samuel Alito called it “distressing” that opponents of the Tennessee ban are making “categorical statements” about medical questions that are still being “hotly disputed,” such as whether the procedures and medications in question actually do reduce the risk of suicide among gender dysphoric minors. Alito also suggested that the costs of providing these treatments to minors would outweigh the benefits.
Chief Justice John Roberts cited a lack of medical consensus on the issue, as well, using the COVID-19 pandemic as an example of the consequences of acting hastily. Roberts also deferred to the authority of state legislatures to decide such issues.
Now that both sides have made their arguments, it’s up to the Supreme Court to render a decision, something that isn’t expected to be announced until June, even though the justices will craft their opinions well before then.