The U.S. Supreme Court has agreed to decide whether Tennessee's ban on gender-affirming care violates the Constitution. When the justices take up the case in the court's next term, it will mark the first time they have heard a matter involving medical care for transgender youth.
The Biden administration asked the court to take the case, United States v. Skrmetti, and decide whether Tennessee Senate Bill 1, 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," violates the equal protection clause of the 14th Amendment.
In the filing, U.S. Solicitor General Elizabeth Prelogar wrote that the Tennessee law is discriminatory.
"And the law frames that prohibition in explicitly sex-based terms: The covered treatments are banned if they are prescribed 'for the purpose' of '[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex' or '[t]reating purported discomfort or distress from a discordance between the minor's sex and asserted identity,'" the filing stated.
"Thus, for example, a teenager whose sex assigned at birth is male can be prescribed testosterone to conform to a male gender identity, but a teenager assigned female at birth cannot," the filing stated.
The move comes as a number of states have sought to ban gender-affirming care for transgender youth. Recently, the justices agreed to allow Idaho authorities to enforce a ban on gender-affirming care for trans youth. That law, passed by the Republican-controlled Legislature, makes it a felony for a doctor to provide medical care, including hormones, to minors.
The American Civil Liberties Union and Lambda Legal Defense and Education Fund issued statements June 24 on the court's decision to hear the Tennessee case.
The ACLU, the ACLU of Tennessee, Lambda Legal, and Atkin Gump Strauss Hauer & Feld LLP asked the court to review the September 2023 decision by the 6th U.S. Circuit Court of Appeals that allowed Tennessee's ban to stay in effect, the release stated. The United States intervened in the plaintiffs' case at the district court and also asked the Supreme Court to review the 6th Circuit's decision.
"The future of countless transgender youth in this and future generations rests on this court adhering to the facts, the Constitution, and its own modern precedent," stated Chase Strangio, a transgender man who is deputy director for transgender justice at the ACLU's LGBTQ & HIV Project. "These bans represent a dangerous and discriminatory affront to the well-being of transgender youth across the country and their constitutional right to equal protection under the law."
He added that Tennessee's law and others like it "are the result of an openly political effort to wage war on a marginalized group and our most fundamental freedoms."
Strangio noted, "We want transgender people and their families across the country to know we will spare nothing in our defense of you, your loved ones, and your right to decide whether to get this medical care."
Tara Borelli, senior counsel at Lambda Legal, noted the high court has historically rejected efforts to uphold discriminatory laws.
"And without similar action here, these punitive, categorical bans on the provision of gender-affirming care will continue to wreak havoc on the lives of transgender youth and their families," Borelli stated. "We are grateful that transgender youth and their families will have their day in court, and we will not stop fighting to ensure access to this live-saving, medically necessary care."
Shannon Minter, a trans man and the longtime legal director for San Francisco-based National Center for Lesbian Rights, stated that the high court's review of the Tennessee law "gives hope to families across the country."
"We are grateful the Supreme Court has agreed to consider this important issue and to ensure that state legislatures cannot selectively deny medically needed care to transgender youth," he stated.
The Human Rights Campaign, the country's largest national LGBTQ rights organization, called on the seven justices to strike down Tennessee's ban.
"It's simple — everyone deserves access to medical care that they need, and transgender and nonbinary young people are no exception," stated HRC President Kelley Robinson, who is queer. "No politician should be able to interfere in decisions that are best made between families and doctors, particularly when that care is necessary and best practice."
Robinson added that bans on gender-affirming care like Tennessee's "have forced families to make heartbreaking decisions to support their children," including moving out of states that have such bans.
"The Supreme Court should restore access to care and block this ban," Robinson stated.
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