After staying away from the divisive issue for months, the Supreme Court may be about to decide whether to jump into the national debate over medical treatment for transgender youth.
As soon as Thursday, the justices will be able to vote behind closed doors on whether to grant an appeal seeking to block a new Tennessee law that prohibits medical treatments that allow a “minor to identify with an alleged identity incompatible with the minor's sex or live as she”.
However, they have been in no rush to act and may postpone the issue again. For weeks, they have repeatedly delayed a vote on the case, likely reflecting a split either between liberals and conservatives, or perhaps within the conservative majority.
At stake is the fate of a wave of new state laws in the South and Midwest that prohibit transgender teens and their parents from getting doctor-prescribed puberty blockers and other hormones.
Some 24 conservative states have passed restrictions on treatment for transgender youth, which could affect about 114,000 minors, or more than a third of transgender youth in the United States, according to the Williams Institute at UCLA School of Law. Many of those state laws have been temporarily blocked by judges.
If the court rejects Tennessee's appeal and says nothing else, it could signal that treatment bans for transgender youth are likely to take effect in about half the country. Then the map of the states would largely coincide with the division between red states and blue states on abortion.
If the justices agree to hear the appeal, the matter could head to debates later this year.
Progressive advocates for transgender youth seek help from the Supreme Court.
“This is a crisis and the only court that can step in to remedy it is the Supreme Court,” said Chase Strangio, deputy director of transgender justice at the ACLU. “This is wreaking havoc on families who have to leave their homes to protect their children.”
The ACLU and Lambda Legal filed a lawsuit challenging the Tennessee law on behalf of three transgender teenagers and their parents who had been obtaining hormones from Vanderbilt University Medical Center.
Initially, a federal judge blocked the new law. But last July, the Ohio-based Sixth Circuit Court, in a 2-1 decision, became the first appeals court to rule that such a law can take effect.
State lawmakers had questioned the safety and effectiveness of hormone treatments for adolescents, and 6th Circuit Chief Judge Jeffrey Sutton said “states can reasonably exercise caution in these circumstances.”
Biden administration Attorney General Elizabeth Prelogar said state laws impose “a categorical ban on evidence-based treatments supported by the overwhelming consensus of the medical community.” The high court's intervention “is justified now,” she said.
Conservative skepticism towards “gender-affirming care” was reinforced by a recent report prepared for the National Health Service in England. Dr Hilary Cass, who led the four-year review, urged caution when treating young people with gender issues.
“This is an area where the evidence is remarkably weak,” he wrote. “The reality is that we don't have strong evidence about the long-term outcomes of interventions to manage gender-related distress.”
Until now, the justices have avoided a clear ruling on the rights of transgender students. When pressed, they have made narrow decisions.
Last year, they rejected an emergency appeal from West Virginia's attorney general and allowed a 12-year-old transgender girl to compete on her high school's girls' track team. The court did not issue an opinion, but Justices Clarence Thomas and Samuel A. Alito Jr. dissented.
Last month, the court issued a procedural decision that allowed Idaho's law to go into effect restricting care for transgender youth, but not for children and parents who sued to challenge it.
The court's majority in the Idaho case focused on the question of whether a federal judge has the power to block an entire state law if two people sue over a provision. Justices Elena Kagan, Sonia Sotomayor and Ketanji Brown Jackson dissented and said the state's appeal should have been denied.
Conservatives may be divided among themselves on the rights of transgender students.
Four years ago, the court surprised many on the right when it ruled that the Civil Rights Act of 1964 prohibits employers from discriminating against workers based on their sexual orientation or gender identity.
Justice Neil M. Gorsuch, joined by Chief Justice John G. Roberts Jr., said that because the law prohibits employment discrimination on the basis of sex, it should be interpreted to include discrimination against LGBTQ+ employees.
“An employer who fires a person for being homosexual or transgender fires that person for traits or actions that it would not have questioned in members of a different sex,” Gorsuch wrote in Bostock v. Clayton County.
Three conservatives dissented from that opinion, and the court has yet to rule on whether this anti-discrimination principle extends to the constitutional guarantee of equal protection of the laws.
That legal question is at the center of the appeals now before the court. The ACLU, Lambda Legal and the Biden administration argue that a law “targeting transgender people for unfavorable treatment” is a form of sex discrimination and should be repealed as unconstitutional.
They also raise the question of parental rights. The laws in Tennessee, Kentucky and elsewhere should be struck down because they “violate the fundamental right of parents to make decisions regarding their children's health care,” they told the court.
Samantha Williams and her husband Brian had sued in Nashville on behalf of their daughter identified as LW.
“It is difficult to overstate the difference that our daughter's medical treatment has made in her life and that of our family,” Samantha Williams said when the appeal reached the Supreme Court. “Before she came out and started receiving this medical care, she struggled to make friends, keep her grades up, or even accept hugs from her family. We now have a happy, confident daughter who is free to be herself. I want the judges to see and understand my daughter and recognize her rights under the Constitution like anyone else, and to see that if parents like me don't have the right to determine what is best for our children, then no parent will. ”.
In defense of his state's law, Tennessee Atty. Gen. Jonathan Skrmetti described it as a measure “to protect children from unproven medical interventions.”
He said the number of minors receiving diagnoses of gender dysphoria has “exploded” in recent years, and states have “seen a corresponding increase in risky, unproven medical interventions for these minor patients.”
He said state lawmakers had “reasonably concluded that the well-documented risks of cross-sex hormones outweigh any purported benefits” and that “minors lack the maturity to fully understand and appreciate the life-altering consequences of such procedures.”
But the American Academy of Pediatrics, along with 21 other medical and mental health organizations, filed a friendly brief with the Supreme Court to dispute Tennessee's claim that hormone treatments are experimental or ineffective.
About 1.4 million people in the United States are transgender, they said, and about 10% of them are teenagers between 13 and 17 years old. They said that “research shows that adolescents with gender dysphoria who receive puberty blockers or hormone therapy experience less depression, anxiety, and suicidal ideation… Prohibiting such care can put patients' lives at risk.”
While state law also prohibits surgical interventions on minors, those provisions are not being challenged in the appealed cases.
In the Sixth Circuit Court, the key question was who should decide the care of minors: parents and their doctors, state legislators or federal judges.
Speaking on behalf of the court, Sutton argued for judicial restraint. “Federal life judges must be careful to remove a novel and perplexing topic from the medical debate (over the use of innovative and potentially irreversible medical treatments for children) from the conventional place to address new regulations, new drugs and new public health concerns: the democratic process”.
Dissenting, Justice Helene White said the court should be careful about deferring to the government. “Our nation's constitutional history teaches that when a treatment option remains available to the public, legislatures should not decide whether that treatment is right or wrong for minor children. Parents should make these decisions.”
