Supreme Court Hears Highest-Profile Case of Term

Hearing a high-profile culture-war clash, the Supreme Court on Wednesday seemed likely to uphold Tennessee's ban on gender-affirming care for minors. The justices' decision, not expected for several months, could affect similar laws enacted by another 25 states and a range of other efforts to regulate the lives of transgender people, including which sports competitions they can join and which bathrooms they can use. The case, the most high-profile of the court's term, is only the second major transgender case the court has dealt with. Solicitor General Elizabeth Prelogar, the Biden administration's top Supreme Court lawyer, warned a decision favorable to Tennessee also could be used to justify nationwide restrictions on transgender health care for minors.

• The case. The issue in the Tennessee case is whether the law violates the equal protection clause of the 14th Amendment, which requires the government to treat similarly situated people the same. Tennessee's law bans puberty blockers and hormone treatments for transgender minors, but allows the same drugs to be used for other purposes.
• Conservative justices were skeptical. In arguments that lasted more than two hours, five of the six conservative justices voiced varying degrees of skepticism of arguments made by the administration and Chase Strangio, the ACLU lawyer for Tennessee families challenging the ban, the AP reports.

• Roberts. Chief Justice John Roberts, who voted in the majority in a 2020 case in favor of transgender rights, questioned whether judges, rather than lawmakers, should be weighing in on a question of regulating medical procedures, an area usually left to the states. "The Constitution leaves that question to the people's representatives, rather than to nine people, none of whom is a doctor," Roberts said in an exchange with Strangio.
• Kavanaugh. Justice Brett Kavanaugh also appeared to prefer leaving it up to states, the Washington Post reports. "It strikes me as, you know, a pretty heavy yellow light, if not red light, for this court to come in, the nine of us, and to constitutionalize the whole area," he said.
• Sotomayor. The court's three liberal justices seemed firmly on the side of the challengers. But it's not clear that any of the conservatives will go along. Justice Sonia Sotomayor pushed back against the assertion that the democratic process would be the best way to address objections to the law. She cited a history of laws discriminating against others, noting that transgender people make up less than 1% of the US population, according to studies.

• Jackson. Justice Ketanji Brown Jackson said she saw some troubling parallels between arguments made by Tennessee and those advanced by Virginia and rejected by a unanimous court in the 1967 Loving decision that legalized interracial marriage nationwide. "I'm worried that we're undermining the foundations of some of our bedrock equal protection cases," she said, per the Post.
• Riveting moments. The arguments produced some riveting moments, the AP reports. Justice Samuel Alito repeatedly pressed Strangio, the first openly transgender lawyer to argue at the nation's highest court, about whether transgender people should be legally designated as a group that's susceptible to discrimination. Strangio answered that being transgender does fit that legal definition, though he acknowledged under Alito's questioning that there are a small number of people who de-transition. "So it's not an immutable characteristic, is it?" Alito said. Strangio did not retreat from his view, though he said the court did not have to decide the issue to resolve the case in his clients' favor.

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• Prelogar's argument. Prelogar called the law sex-based line drawing to ban the use of drugs that have been safely prescribed for decades and said the state "decided to completely override the views of the patients, the parents, the doctors." She contrasted the Tennessee law with one enacted by West Virginia, which set conditions for the health care for transgender minors but stopped short of an outright ban.
• Rice says there's no sex-based line. Rice argued that the Tennessee law doesn't discriminate based on sex but rather based on the purpose of the treatment. Children can get puberty blockers to treat early-onset puberty, but not as a treatment for gender dysphoria. "Our fundamental point is there is no sex-based line here," Rice said.

(More transgender stories.)