The Supreme Court on Wednesday took on complicated questions about medical treatment for transgender minors in a case that could reshape health care laws nationwide.
In U.S. v. Skrmetti, the justices are weighing whether Tennessee’s restrictions on certain gender-related treatments, such as puberty blockers and hormone therapy, can stand as written or if they need to be reconsidered in light of sex discrimination claims.
Similar policies are in place in nearly two dozen other states.
Opponents of Tennessee’s law, called SB1, say the policy is making controversial sex-based classifications and requiring medical providers to treat transgender boys and girls differently than non-transgender patients.
The law’s supporters, on the other hand, say the law is focused on medical diagnoses, not patients’ sex at birth, and therefore doesn’t fit the opponents’ equal protection claims.
The Supreme Court has specifically been asked to decide whether the 6th U.S. Circuit Court of Appeals applied the right legal standard in its ruling in favor of Tennessee officials.
Here are three takeaways from Wednesday’s oral arguments on U.S. v. Skrmetti.
The Supreme Court can rule against Tennessee without overturning SB1
U.S. Solicitor General Elizabeth Prelogar and Chase Strangio, an ACLU attorney who represents the children, parents and doctor challenging SB1, emphasized Wednesday that the Supreme Court doesn’t need to overturn Tennessee’s policy this term.
Instead, the court can send the case back to the lower court for a “heightened scrutiny analysis,” in which government officials would be asked to further explain their concerns about the challenged gender-related medical treatments to justify the existence of SB1, Prelogar said.
Such a ruling would represent a loss for Tennessee officials, but only in a limited sense. It would leave the overall question of when — and how — states can regulate gender-related health care treatments unanswered.
Still, Tennessee Solicitor General Matthew Rice unsurprisingly argued against that potential outcome on Wednesday, saying that the 6th Circuit’s ruling in favor of SB1 should stand.
Europe’s recent health care debates are on justices’ minds
At multiple points in Wednesday’s oral arguments, more conservative justices like Clarence Thomas, Samuel Alito and Brett Kavanaugh questioned whether treatments like hormone therapy are safe for transgender minors, arguing that the science seems to be unsettled.
It’s an “evolving debate,” Kavanaugh said. “It strikes me as yellow light or red light for this court to come in and constitutionalize the whole area when the rest of the world or people who have been at forefront of this are pumping the brakes on this kind of treatment.”
Prelogar attempted to reassure Kavanaugh and others as she argued that U.S. v. Skrmetti should be sent back to the lower courts and reexamined.
She said the heightened scrutiny analysis would create an opportunity to weigh recent developments in Europe, where officials have recently moved to restrict access to gender-related medical treatments after decades of championing permissive policies.
But Kavanaugh and other justices appeared unsatisfied with that argument. They said a deeper analysis in the 6th Circuit would run into the same issue they themselves are struggling with: the difficulty of knowing when gender-related medical treatments do more harm than good.
“It seems that there are risks and benefits both ways here. It’s very hard to weigh those,” Kavanaugh said.
He added that his sense is that sending the case back to the lower court would only delay an inevitable reexamination by the Supreme Court.
“This would back here in a year and we’d be having the same discussion as I see it,” he said.
The key question is still how to define sex discrimination
Although much of Wednesday’s debate focused on the risks and benefits of enabling transgender minors to access gender-related medical treatments, the question in front of the Supreme Court isn’t actually about risks and benefits — it’s about how to define sex discrimination.
Prelogar and Strangio argued that Tennessee’s law amounts to sex discrimination because it treats biological boys and girls differently. A patient who is born a boy can access a treatment like testosterone, but a transgender patient who was born a girl cannot access testosterone.
SB1 “draws sex-based lines,” Prelogar said.
Rice, on the other hand, argued that SB1 is drawing lines based on medical diagnoses, not a patient’s sex at birth.
It “turns entirely on medical purpose, not a patient’s sex. That is not sex discrimination,” he said.
More liberal justices appeared sympathetic to the first argument, while more conservative justices appeared sympathetic to the second. At various points, more conservative justices questioned whether saying the law amounts to sex discrimination would complicate the ongoing debate over transgender women in women’s sports.
The court will have to determine that Tennessee’s law engages in sex-based classification in order to send the case back to the lower court.
The Supreme Court’s decision is expected by the end of June.
