The 5 Most Infuriating Takeaways From Supreme Court Arguments on Trans Kids' Medical Care
On Wednesday morning, the Supreme Court heard arguments in U.S. v. Skrmetti, a lawsuit over whether Tennessee can ban gender-affirming care for minors, but the case has much broader implications for medical care.
Tennessee’s Senate Bill 1 prohibits doctors from prescribing puberty blockers or hormone therapy to transgender kids whose parents consent to the treatment, while allowing cisgender children to use the same medications. The ACLU and the Biden Department of Justice argue that SB 1 is clear sex discrimination because a minor assigned male at birth can take testosterone, while a minor assigned female cannot. Tennessee, meanwhile, claims the law isn't discriminatory because it focuses on the medical reason the drugs are prescribed and, in its majestic equality, bans both trans girls and boys from taking them.
The stakes here are huge since a ruling saying that a ban on medical care isn't sex discrimination could impact care for trans adults, and other kinds of care like birth control and IVF.
Arguments lasted nearly two and a half hours, which made it all the more surprising that Justice Neil Gorsuch didn't ask a single question. Gorsuch wrote the 2020 decision in Bostock v. Clayton County, which said employment decisions based on gender identity are sex discrimination under the law —specifically, under Title VII of the Civil Rights Act. This challenge is under a different statute, the Equal Protection Clause of the 14th Amendment, but Bostock came up multiple times and Gorsuch couldn't be bothered to chime in.
Here's what else happened today.
The fallout of Dobbs continues
Advocates warned that the Dobbs v. Jackson Women's Health decision that overturned Roe v. Wade could imperil other liberty rights, like marriage equality and the ability to use birth control. Now conservatives are using it to attack trans rights as well. Tennessee's brief in the case cites Dobbs as a reason why the state can "regulate" this medical care (it's a ban but they won't call it that).
Justice Samuel Alito told the DOJ's lawyer, Elizabeth Prelogar, that the Dobbs opinion — which he wrote — said that equal protection doesn't apply when talking about medical conditions or procedures associated with just one sex. But experts have noted that equal protection claims weren't an official question in Dobbs and Alito just went rogue by including that in the final opinion. And now he's citing himself in this different case.
And in a redux of the "send abortion back to the states" argument, Justice Brett Kavanaugh, who is desperate to be liked and viewed as moderate, argued that states should be able to pass their own laws lest transgender healthcare be "constitutionalized."
Alito continued to be the court's chief troll
Alito, a man who is less interested in law than in owning the libs, remains the preeminent troll on the court. Not only did he cite his own dubious Dobbs opinion, but he also sneeringly invoked restrictions on gender-affirming care in the U.K. and Sweden, which importantly do not impose blanket bans on this care for all minors. He was particularly upset that Prelogar didn't give prominence to the notorious Cass Report in the government's opening brief — he said that she "relegated" it to a footnote. The U.K.'s National Health Service commissioned the 2024 report which contradicted more than 100 existing studies that found there are benefits to gender-affirming care for minors. Prelogar emphasized multiple times that, despite this report, no European country has banned this care like Tennessee and more than 20 other states have.
Alito also said that the justices aren't medical experts and perhaps laws like this should be left to the states. This is especially rich because he cosplayed as a doctor in the emergency abortions case, U.S. v. Moyle, earlier this year. In his dissent in Moyle, Alito wrote “Government lawyers hit upon the novel argument that, under EMTALA … hospitals … must perform abortions on request when the ‘health’ of a pregnant woman is in serious jeopardy.” Yes, he put "health" in scare quotes.
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If the court sides with the state, it sets the stage for a possible nationwide care ban for kids and adults
Prelogar argued that trans people should have rights under the equal protection clause because otherwise, states could pass bans on medical care for adults, or prohibit trans people from becoming adoptive parents.
The ACLU's Chase Strangio — the first out trans person to argue at SCOTUS — underscored this point in his opening remarks. "Critically, Tennessee's argument that SB 1 is sex-neutral would apply if the state banned this care for adults, too."
Tennessee Solicitor General Matthew Rice also seemed to admit this was possible under fierce questioning from Justice Sonia Sotomayor, but he added that if a court did uphold such a ban on adults, it would be left to the democratic process. "Democracy is the best check on potentially misguided laws," Rice said. Sotomayor fired back, "When you're 1 percent of the population or less, very hard to see how the democratic process is going to protect you. Blacks were a much larger part of the population and it didn't protect them. It didn't protect women for whole centuries."
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Prelogar noted in her rebuttal that siding with Tennessee would have the effect of not only greenlighting state bans on adult care, but potentially opening the door to federal bans being constitutional. "Justice Kavanaugh, you said this might be a space where each state can make its own choice," she said. "But I think it's important to recognize that [Tennessee’s] arguments would equally apply to a nationwide ban if this were enacted by Congress." Chilling stuff.
Justice Jackson emphasized the risks to interracial marriage
After much talk about states' rights and debating of scientific claims, Justice Ketanji Brown Jackson reminded everyone that Virginia made similar top-level arguments when banning interracial marriage. That ban was overturned as a violation of the equal protection clause in the 1967 case Loving v. Virginia. But Jackson noted that Virginia had argued that scientific evidence on interracial marriage was in doubt, so courts should let the state decide.
Jackson said she was "getting kind of nervous" by the tenor of arguments thus far because it felt to her like if the court sided with Tennessee, they could have also backed Virginia's ban on interracial marriages for a similar reason. "If instead [the court is] just sort of doing what the state is encouraging here in Loving where you say, ‘there are lots of good reasons for this policy, and who are we as the court to say otherwise,’ I'm worried that we're undermining the foundations of some of our bedrock equal protection cases." This was a barely-veiled dig at Alito and Kavanaugh saying some matters should be left to the states.
Tennessee's lawyer compared gender-affirming care to lobotomies
Rice was trying to argue that puberty blockers and hormone treatments are somehow experimental, despite the fact that they have been offered for decades, including to cisgender adolescents. During a back-and-forth with Justice Kavanaugh about whether parents or the state should get to decide what medical care their children receive, Rice said it's not unusual for states to step in, and then cited — wait for it — lobotomies. "We've had multiple instances in somewhat recent history, where we have stuff like lobotomy, eugenics, that had widespread acceptance among the medical community and the state had to intervene as a regulator to protect children." Tennessee is effectively comparing gender-affirming care to lobotomy and eugenic sterilization, which is incredibly offensive. It also ignores that, without affirming care, some trans teens die by suicide, which is its own twisted form of state eugenics.
Rice's other gross comments included when he professed a concern for trans girls' fertility if they used gender-affirming hormones — Kavanaugh had asked about kids' fertility earlier in the argument. This is creepy behavior but it is connected to Dobbs again in conservatives seeing people assigned female at birth as incubators, first and foremost.
After that train wreck, now we get to wait for whatever terrible opinion comes out of these arguments. The court typically decides on the highest-profile cases in June. Gird your loins.