After contentious oral arguments, the justices are left with the task of determining whether Tennessee’s law discriminates on the basis of sex or it regulates medical treatment within traditional state authority.

Still, most justices appeared to be sympathetic to Tennessee’s arguments.

Oral arguments in U.S. v. Skrmetti reviewed Tennessee’s Senate Bill 1 (SB1), a law prohibiting puberty blockers, cross-sex hormones, and transgender surgeries for minors. The statute was initially challenged by the American Civil Liberties Union and other top law firms on behalf of “families with transgender adolescents,” the ACLU wrote in a press readout. The arguments marked the first time in history the court has considered a dispute on the authority of states to regulate transgender hormone therapies for minors with gender dysphoria. 

President Joe Biden’s Justice Department intervened in the case after the U.S. Court of Appeals for the 6th Circuit, led by Chief Judge Jeffrey Sutton, upheld the law. 

The justices’ central concern during the hearing is whether SB1 unlawfully discriminates against youth under the Fourteenth Amendment or whether it constitutes a legitimate exercise of state authority to protect minors from life-altering medical procedures. 

The outcome of the case will have significant implications for the more than 20 other states with similar laws.

Sex-based discrimination 

Tennessee Solicitor General James Rice argued that “there is no sex-based line” in his state’s statute that would make the law violate the Fourteenth Amendment, but U.S. Solicitor General Elizabeth Prelogar said the law fundamentally discriminates on sex.

“Part of what the state was attempting to do is what the physical expectations of how males and females should appear,” said Prelogar. “It’s not at all surprising to think of that as a sex classification.”

Justice Elena Kagan, part of the three-member liberal bloc on the high court, said that the law essentially says, “We want boys to be boys and girls to be girls.”

Justice Samuel Alito pushed back against the Biden administration’s use of reasoning under Bostock v. Clayton County (2020), which extended Title VII employment protections to gender identity. 

“Bostock involved the interpretation of a particular language in a particular statute, and this is not a question of statutory interpretation. It’s a question of the Equal Protection Clause of the 14th Amendment,” said Alito.

Prelogar replied to the challenges from Roberts and Alito by highlighting that the law specifically prohibits the use of medication on the basis of sex, a form of discrimination that has long been precedent from the court.

“This statute on its face says you can’t have medication inconsistent with sex, and no matter what you think about transgender discrimination generally, that’s a sex-based line,” said Prelogar. 

“I’m not sure that’s anything more than a play on words,” said Alito. 

Justice Sonia Sotomayor clarified that Bostock was only invoked in the Biden administration’s argument insofar as both cases deal with sex-based classifications and the corresponding level of scrutiny.

Discrimination based on immutable characteristics

Alito posed the question several times whether or not transgender identity is an unchanging characteristic. 

Chase Strangio, a lawyer with the ALCU’s LGBT & HIV Rights Project, told Alito that “the record shows that there is at least a strong underlying basis” for the immutability of transgender identity.

Strangio, 42, presented oral arguments on behalf of the individual families suing against SB1 and is the first biological female who identifies as a man to argue before the high court. 

Justice Amy Coney Barrett pushed back against the argument that discrimination against trans-identified individuals has less of a history of legal discrimination than other issues of race and gender.

“At least de jure discrimination of the sort experienced by women, you know, or people on the basis of race, gives us something to point to if we’re going to be identifying a new suspect class, which we haven’t done for a long time,” said Barrett.

Strangio noted bans on cross-dressing and bans on military service in the past as the de jure discrimination that would fulfill Barrett’s question.

Kagan questioned whether or not the sex-classification argument from Prelogar was strong enough in this case, but Justice Ketanji Brown Jackson supported Prelogar’s argument.

KBJ turns heads after comparison to interracial marriage case

Jackson drew notable attention when she suggested that there was a parallel between this case and Loving v. Virginia, which overturned rules against interracial marriage. 

“I wonder if Virginia could have gotten away with what they did [there] by just making a classification argument the way that Tennessee is in this case,” said Jackson.

Jackson later said that she was “worried that we’re undermining the foundations of some of our bedrock equal protection cases.”

Rice said that “we just don’t think there is any sex-based line” in this case, making it unlike Loving or other discrimination cases.

“In this case, the only way that they can point to a sex-based line is to equate fundamentally different medical treatments,” said Rice. “Giving testosterone to a boy with a deficiency is not the same treatment as giving it to a girl who has psychological distress associated with her body.”

Rice used an analogy of using morphine for pain management versus using it for assisted suicide, highlighting how the same drug can be used for two very different purposes.

Role of the court in medical decisions

“The equal protection clause does not require the state to blind themselves to medical reality or to treat unlike things the same, and it does not constitutionalize one side’s view of a disputed medical question,” said Rice. 

Chief Justice John Roberts questioned Prelogar regarding the highly disputed medical information in this case, particularly on the side effects of puberty blockers and cross-sex hormones.

“Here it seems to me that the medical issues are much more heavily involved than many of the cases that you look to,” said Roberts, adding that the high court is “not the best situated to address issues like that.”

Alito pressed Prelogar by noting that the United Kingdom, Sweden, Finland, and Norway have significantly curtailed their use of both cross-sex hormones and puberty blockers due to a lack of evidence.

Justice Brett Kavanaugh and Alito echoed Roberts’s questions regarding the role of the states in making legal judgments on highly evolving medical science. 

“I do think that judges are equipped to make those determinations, as they do in many, many other contexts,” said Strangio.

Kavanaugh said that “there’s no kind of perfect way out” when weighing the pros and cons of allowing transgender hormone treatments for minors.

“It’s not simply a morals legislation, as they’ve described it. It’s a health and safety justification, and it seems that there are risks and benefits both ways here, so it’s very hard to weigh those,” said Kavanaugh. “Either way, people are going to be harmed.”

Biden DOJ provides an offramp for the Supreme Court 

Prelogar argued that the court could write a narrowly tailored opinion that does not necessarily prevent states from regulating transgender medical care for minors.

“If you are concerned, Justice Kavanaugh, about moving too fast in this space and maybe restricting the ability of states to take a close look at these issues, I think the court could say simply that when you prohibit conduct that’s inconsistent with sex, that is a sex-based line,” said Prelogar.

“The reason it doesn’t look like a typical medical regulation is because the legislature was doing something in trying to get minors to appreciate their sex and not become disdainful. That’s not a medical-based justification, But I think it shows exactly why the states drew the lines where it did,” Prelogar said during her rebuttal. 

When pressed by Kavanaugh on the medical science, Prelogar admitted that cross-sex hormones have permanent effects on a developing child’s body. She also told the court that puberty blockers do not have long-term effects on fertility and are “just pressing pause on someone’s endogenous puberty to give them more time to understand their identity.”

Prelogar did acknowledge as a factual matter that there is “a very small number” of detransitioners, or those who regret and attempt to reverse their medical gender transition.

Rice argued that allowing transgender medical treatment cannot forgo the risk of detransitioners, but both Sotomayor and Jackson aggressively retorted that all medical treatments have a risk of remorse or harm. 

“There is always going to be a percentage of the population under any medical treatment that is going to suffer harm,” said Sotomayor. 

Transgender sports

One of the underlying themes of the conversation surrounded the hotly debated culture war issue surrounding biological men participating in women’s sports. Kavanaugh and Prelogar debated the ramifications of the impending decision on biological males in female sports. 

Prelogar argued that the careful and individual medical decisions of trans-identified youth and their families are fundamentally different.

“I think one really apparent difference is that in the context of sports, there are arguments made that affects the rights of cis-gender women,” Prelogar said, contending that an ultimate decision over Tennessee’s law would have nothing to say regarding future legal disputes over men participating in women’s sports.