President Donald Trump's obsession with attacking the transgender community ratcheted up a notch last week when his deputy solicitor general – the government's top lawyer in the Supreme Court – informed the justices that the administration was switching sides in U.S. v. Skrmetti, the case that is challenging Tennessee's ban on gender-affirming hormone therapies for transgender adolescents. No longer will the administration side with the trans adolescents, as former President Joe Biden's administration did; instead it is joining with the state of Tennessee, which wants to ban hormonal care for young people.
The Supreme Court, as we previously reported, heard oral arguments in the case in December and a decision is expected by June. As SCOTUS blog reported, generally there's been a long-standing tradition that when there is a change from a Democratic to a Republican administration, or vice versa, the federal government maintains the same legal position in any cases already before the courts on the merits. But, the outlet also noted that in both the Biden and Trump administrations, the Office of Solicitor General departed from that practice.
While it wasn't a total surprise, it's worth mentioning that Deputy Solicitor General Curtis Gannon's withdrawal of the government from the plaintiffs' case does not bode well. Indeed, the conservative supermajority on the court hinted as much when the justices heard the oral arguments. The best hope, many LGBTQ advocates said at the time, was a narrow ruling. That now appears to be in jeopardy.
In fact, the Trump administration wants the Supreme Court to decide the case, perhaps believing that the conservative justices will produce a blanket ban on hormone treatments such as puberty blockers, which Trump wants anyway, given he has issued an executive order decrying such treatments. In accepting the case last year, the question the court asked was, "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, Senate Bill 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 Biden administration's 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" (early puberty) but has not approved them for "gender dysphoria."
In challenging the Tennessee law, the plaintiffs and the Biden administration relied on the Constitution's guarantee that each citizen has a right to equal protection of the law. Specifically, Amendment 14 states, "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."
Now, the Trump administration is saying it agrees with Tennessee and wants the justices to decide on the equal protection question presented by the case because their ruling "will bear on many cases pending in the lower courts," Gannon's letter stated.
Lambda Legal Defense and Education Fund, which is co-representing the plaintiffs – three transgender adolescents, their families, and a Memphis-based physician – with the American Civil Liberties Union, the ACLU of Tennessee, and Akin Gump Strauss Hauer & Feld, stated that the Tennessee law "continues to upend the lives of our plaintiffs."
"These Tennesseans have had their constitutional rights to equal protection under the law violated by the state of Tennessee," the agencies and law firm stated. "This latest move from the Trump administration is another indication that they are using the power of the federal government to target marginalized groups for further discrimination. We condemn this latest move and will continue to fight to vindicate the constitutional rights of all people."
We see a terrible trend developing with Trump and the courts. While this decision may not be out of the norm, it's clear that the administration does not want equal rights for trans people. The executive orders – banning gender-affirming care for youth, banning trans service members, stating there are only two genders, and eliminating "all federal funding or support for illegal and discriminatory treatment and indoctrination in K-12 schools, including based on gender ideology and discriminatory equity ideology and protecting parental rights" – demonstrate Trump's deep-seated animosity toward this vulnerable segment of our community. Moreover, the administration is now openly floating the idea that it doesn't have to follow court decisions with which it doesn't agree. The U.S., of course, is governed by three separate branches of government – the executive, legislative, and judicial. The first two are now firmly controlled by Republicans. The judicial branch, at the Supreme Court level and some federal appellate court districts, is also controlled by Republicans. But if Trump thumbs his nose at adverse court decisions, like the preliminary ones that have come out so far against his funding freeze and others, we will no longer be living in a liberal democracy.
That's the awful prospect we face now. We don't have much hope that the Supreme Court will rule for the plaintiffs in U.S. v. Skrmetti. The Trump administration's decision to switch sides only bolsters our fear.
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