Trans activists, supporters, and opponents gathered outside the U.S. Supreme Court as crucial arguments were heard in a case on transgender health rights. This case, U.S. v. Skrmetti, centers around Tennessee's law banning puberty blockers, cross-sex hormones, and body-mutilating sex-change surgeries for minors and its potential violation of the U.S. Constitution's equal protection guarantee. | Kevin Dietsch/Getty Images

Justice Department's Stance

The United States Department of Justice informed the Supreme Court that it believes states have the authority to restrict puberty blockers and cosmetic sex-change surgeries for minors. This stance was presented during the Wednesday oral arguments in the U.S. v. Skrmetti case. U.S. Solicitor General Elizabeth Prelogar argued against the ban, emphasizing that she believed the state law discriminated based on sex. However, she also admitted that there is a valid space for states to regulate in this area, pointing to West Virginia's example where a ban on trans procedures has an exemption for at-risk teenagers. "The West Virginia Legislature changed course and imposed a set of guardrails that are far more precisely tailored to concerns surrounding the delivery of this care," she stated.

Justice Samuel Alito questioned Prelogar about the actions in countries like the United Kingdom and Sweden, where such body-deforming procedures have been curbed due to concerns about their long-term impacts on patients' health. Prelogar responded by arguing that neither country has outright banned the procedures for minors and that experts believe they can be medically necessary.

When asked by Justice Sonia Sotomayor about state interests in the procedures, Prelogar agreed that states can regulate when they have an important interest. "We don't think that that means the states are entirely barred from regulating in this space. Obviously, they are grappling with these issues in a variety of contexts," she continued.

Tennessee Solicitor General's Argument

Tennessee Solicitor General J. Matthew Rice argued that the Tennessee law was based on "medical purpose" rather than sex identification and was therefore not discriminatory. He pointed out that the plaintiffs were "conflating" procedures that are fundamentally different, as puberty blockers can be used for reasons other than gender reassignment. "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.

When Justice Clarence Thomas asked about West Virginia's law, Rice stated that it was "pure policy-making" and that laws like Tennessee's should be left to legislatures, not judges.

Comparison to Loving v. Virginia

Justice Ketanji Brown Jackson compared the Tennessee law to Virginia's ban on interracial marriage, which was struck down by the Supreme Court in 1967. "In Loving, those same kinds of scientific arguments were made," Brown said, noting that Virginia had argued that when "the scientific evidence is substantially in doubt" the Supreme Court "should defer to the wisdom of the state legislature." Rice countered that Tennessee's law was not based on an identity marker like sex or race but on the purpose of seeking a certain treatment.

ACLU's Perspective

Chase Strangio of the American Civil Liberties Union, the first openly trans-identified lawyer to argue before the Supreme Court, said that state lawmakers "impose a blunderbuss ban" on the procedures. Chief Justice John Roberts asked Strangio if the courts should be deciding the fate of laws based on "evolving" debates on medical care and procedures, expressing concern. Strangio drew a comparison to when the Supreme Court struck down certain COVID-19 restrictions on religious gatherings, stating that "the court has not hesitated to suggest that heightened scrutiny applies in contexts that deal with medicine and science."

Alito asked Strangio if trans-identity was "immutable" like other classifications such as race. Strangio said she believed it had a "biological" aspect and was a "distinguishing characteristic."

Tennessee's Senate Bill 1

Tennessee passed Senate Bill 1 in March last year, which prohibits healthcare providers from performing genital mutilation surgeries or giving puberty blockers to children with gender dysphoria. The findings of SB 1 note that the integrity and public respect of the medical profession are significantly harmed by such procedures on minors. "This state has a legitimate, substantial, and compelling interest in protecting minors from physical and emotional harm," it states. "This state has a legitimate, substantial, and compelling interest in protecting the integrity of the medical profession, including by prohibiting medical procedures that are harmful, unethical, immoral, experimental, or unsupported by high-quality or long-term studies, or that might encourage minors to become disdainful of their sex."

Multiple progressive groups sued to strike down the new law on behalf of trans-identified minors and their families, with the U.S. Department of Justice intervening on behalf of the plaintiffs. Although a lower court placed a preliminary injunction against the law, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit allowed the legislation to take effect. Last September, a Sixth Circuit panel ruled 2-1 to uphold the law, with Circuit Chief Judge Jeffrey Sutton authoring the majority opinion. "There is a long tradition of permitting state governments to regulate medical treatments for adults and children. So long as a federal statute does not stand in the way and so long as an enumerated constitutional guarantee does not apply, the States may regulate or ban medical technologies they deem unsafe," Sutton wrote. Circuit Judge Helene White wrote a dissenting opinion, arguing that the provisions of the legislation "discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children."