The U.S. Supreme Court will soon take up an important legal question concerning whether states can ban medical treatment for gender dysphoria in youth. The case comes from Tennessee, one of several states that have enacted such laws, and oral arguments are set for Wednesday, December 4.
Certainly, there will be widespread media coverage. The "transgender issue" is being blamed in large part for Democratic presidential nominee Kamala Harris' loss to Republican President-elect Donald Trump. Trump wielded the subject matter in many of his campaign speeches, claiming Harris was in favor of free sex-change operations for prisoners, migrants, and children. The targeted messages, including heavy use of anti-transgender ads during nationally televised football games in swing states, was effective in winning votes for Trump and in devastating the sense of safety for transgender people of all ages.
Now, a heavily pro-Trump Supreme Court will decide whether states can ban legitimate medical treatments for people under 18 who suffer from a recognized medical condition.
For those interested, anyone can listen to the one-hour oral argument live, listen to the recording, or read the transcript afterward. Here are important details to help understand what is being discussed:
Case name: U.S. v. Skrmetti. This appeal originated with LW v. Skrmetti, a case in which the parents of three transgender teenagers in Tennessee sued to stop the ban on treatment. The Supreme Court did not act on the original appeal from the three teenagers. Instead, it agreed to hear the U.S. government's position that argues the Tennessee law is unconstitutional.
Date/time of argument: Wednesday, December 4, at 7 a.m., Pacific Time.
Link for live audio stream.
Link for recording and/or transcript.
Attorneys: Arguing for the families will be attorney Chase Strangio, 42, who came out as a transgender man while in law school at Northeastern University in Boston. He has been involved in some of the LGBTQ movement's most high-profile cases in recent years, including Obergefell v. Hodges (same-sex marriage), Gloucester v. Grimm (trans use of public school bathrooms), Aimee Stephens v. Harris Funeral Homes (trans employee firing), and others. He is now co-director of the American Civil Liberties Union's LGBTQ & HIV Project and will help represent the transgender plaintiffs. There will also be an attorney from the U.S. Solicitor General's office, representing the U.S.'s opposition to the state bans, and an attorney from the Tennessee Attorney General's office to defend the ban.
Chief argument for the U.S.: The Tennessee law violates the U.S. Constitution's guarantee to equal protection under the law. In doing so, it discriminates based on sex and should be examined with a heightened level of scrutiny. Under the Tennessee law, a cisgender male teenager could use testosterone to enhance his stereotypical male attributes, but a transgender male could not.
Tennessee's argument: States should be allowed to ban potentially irreversible sex-transition interventions for minors who may not be able to fully grasp the lifelong consequences and risks. Tennessee law prohibits puberty blockers, cross-sex hormones, and sex-transition surgeries. The state also argues that the Supreme Court should use its easiest form of review (rational basis) in deciding whether the law can stand.
In other courts: This type of case has emerged in several other U.S. federal circuit courts. This one comes from the 6th U.S. Circuit Court of Appeals (which covers Tennessee, Kentucky, Ohio, and Michigan). A three-judge panel of the 6th Circuit ruled 2-1 that the state could legitimately ban such treatments for youth. It rendered the decision after first applying the lowest (easiest) level of review: rational basis. Attorneys for the plaintiffs argued that a more rigorous review was warranted (heightened) because the ban discriminated on the basis of sex and transgender status.
The legal question: Whether a new Tennessee law (known as SB 1) violates a citizen's right to equal protection under the law by prohibiting 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."
The political question: Trump made frequent statements on the campaign trail indicating he was opposed to gender care for people suffering from gender dysphoria. The current Supreme Court includes three of his appointees — all of whom helped deliver to Trump Dobbs v. Jackson Women's Health Organization in 2022, which overturned Roe v. Wade and the right to abortion. In the past three years, Tennessee and 21 other states have banned gender-affirming care. The laws do not attempt to protect the rights and health of children; they simply ban any treatment of gender dysphoria.
The basic medical science: The American Psychiatric Association has stated that a transgender person is one whose self-perception is as one gender but whose birth certificate (and often physical/sexual attributes) causes him or her to be perceived by others as the opposite gender. Some transgender people function and live happy lives without any medical intervention. Some suffer a dysphoria — anxiety, stress, withdrawal, and self-destructive behaviors — because of the constant, jarring discordancy between who they are and who others assume they are. Professional medical organizations say children can experience this discordancy as early as age 3, but many experience it around age 7.
About 1% of the U.S. population is transgender. Of those, only about 2% take hormone blockers and 11% take gender-affirming hormones.
What doctors say: The American Medical Association says state bans on gender-affirming care are "a dangerous intrusion into the practice of medicine." The American Psychiatric Association says that suppression of puberty hormones and administration of gender-affirming hormones may be warranted for some adolescents but "medical affirmation is not recommended for prepubertal children." The Department of Justice brief notes that intervention for pre-puberty children includes "allowing a transgender child to live in accordance with their gender identity, including their clothing, hairstyle, name, and pronouns."
The irony: Opponents of equal rights for transgender youth are arguing in this case that transgender youth should not be allowed to receive counseling, hormone blockers, or any form of surgery. These same opponents do not want transgender females to participate in girls/women's sports because they say the transgender females have an unfair physical advantage (such as muscle mass) over females identified as females at birth. The sports issue might be less of a problem if transgender females were able to receive hormone blockers before they develop the stronger physical characteristics that appear in adolescence.
Decision expected: With most LGBTQ-related cases, the Supreme Court has released its decisions in June, the last month of the session.
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