By MARK SHERMAN Associated Press
WASHINGTON (AP) — 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 is being weighed by a conservative-dominated court after a presidential election in which Donald Trump and his allies promised to roll back protections for transgender people, showcasing the uneasy intersection between law, politics and individual rights.
The Biden administration’s top Supreme Court lawyer warned a decision favorable to Tennessee also could be used to justify nationwide restrictions on transgender healthcare for minors.
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.
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.
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 U.S. population, according to studies. There are an estimated 1.3 million adults and 300,000 adolescents aged 13 to 17 who identify as transgender, according the UCLA law school’s Williams Institute.
“Blacks were a much larger part of the population and it didn’t protect them. It didn’t protect women for whole centuries,” Sotomayor said in an exchange with Tennessee Solicitor General Matt Rice.
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.
Quoting from the 57-year-old decision, Jackson noted that Virginia argued then that “the scientific evidence is substantially in doubt and, consequently, the court should defer to the wisdom of the state legislature.”
Justice Neil Gorsuch, who wrote the majority opinion in 2020, said nothing during the arguments.
The arguments produced some riveting moments. 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 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.
There were dueling rallies outside the court in the hours before the arguments. Speeches and music filled the air on the sidewalk below the court’s marble steps. Advocates of the ban bore signs like “Champion God’s Design” and “Kids Health Matters,” while the other side proclaimed “Fight like a Mother for Trans Rights” and “Freedom to be Ourselves.”
Four years ago, the court ruled in favor of Aimee Stephens, who was fired by a Michigan funeral home after she informed its owner that she was a transgender woman. The court held that transgender people, as well as gay and lesbian people, are protected by a landmark federal civil rights law that prohibits sex discrimination in the workplace.
The Biden administration and the families and health care providers who challenged the Tennessee law urged the justices to apply the same sort of analysis that the majority, made up of liberal and conservative justices, embraced in the case four years ago when it found that “sex plays an unmistakable role” in employers’ decisions to punish transgender people for traits and behavior they otherwise tolerate.
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.
Solicitor General Elizabeth Prelogar, the administration’s top Supreme Court lawyer, 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 countered that lawmakers acted to regulate “risky, unproven medical interventions” and, at one point, likened the use of puberty blockers and hormone treatments to lobotomies and eugenics, now thoroughly discredited but once endorsed by large segments of the medical community.
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.
While the challengers invoked the 2020 ruling in Bostock v. Clayton County for support, Tennessee relied on the court’s precedent-shattering Dobbs decision in 2022 that ended nationwide protections for abortion and returned the issue to the states.
The two sides battled in their legal filings over the appropriate level of scrutiny the court should apply. It’s more than an academic exercise.
The lowest level is known as rational basis review and almost every law looked at that way is ultimately upheld. Indeed, the federal appeals court in Cincinnati that allowed the Tennessee law to be enforced held that lawmakers acted rationally to regulate medical procedures, well within their authority.
The appeals court reversed a trial court that employed a higher level of review, heightened scrutiny, that applies in cases of sex discrimination. Under this more searching examination, the state must identify an important objective and show that the law helps accomplish it.
If the justices opt for heightened scrutiny, they could return the case to the appeals court to apply it. That’s the course Prelogar and Strangio pushed for on Wednesday, though there did not seem to be much support for it.
Gender-affirming care for youth is supported by every major medical organization, including the American Medical Association, the American Academy of Pediatrics and the American Psychiatric Association.
But Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh all highlighted a point made by Tennessee in its legal briefs claiming that health authorities in Sweden, Finland, Norway and the United Kingdom found that the medical treatments “pose significant risks with unproven benefits.”
If those countries “are pumping the brakes on this kind of treatment,” Kavanaugh said, why should the Supreme Court question Tennessee’s actions?
None of those countries has adopted a ban similar to the one in Tennessee and individuals can still obtain treatment, Prelogar said.
Kavanaugh, who has coached his daughters’ youth basketball teams, also wondered whether a ruling against Tennessee would give transgender athletes “a constitutional right to participate in girls’ sports.”
Prelogar said a narrow decision would not affect the sports issue.
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Associated Press writers Lindsay Whitehurst, Andrew DeMillo in Little Rock, Arkansas, Geoff Mulvihill in Cherry Hill, New Jersey, and Kimberlee Kruesi in Nashville, Tennessee contributed to this report.