WASHINGTON – A recurring theme emerged throughout the discussion.

During a two-and-a-half-hour session on Wednesday, the Supreme Court considered whether states can bar transgender teens from accessing puberty blockers and hormone treatments. Conservative justices continuously hinted that this contentious matter is more appropriate for state legislatures to decide.

“It seems to me that it is something where we are extraordinarily bereft of expertise,” remarked Chief Justice John Roberts.

Lawyers representing the Justice Department and the American Civil Liberties Union, advocates for families opposing Tennessee’s prohibition, argued that under the Constitution, courts should rigorously evaluate laws that differentiate between individuals based on sex or transgender status—something they believe the ban does.

However, their arguments did not seem to sway any justices besides the liberal ones, including Justice Ketanji Brown Jackson, who expressed concern about her colleagues questioning the judicial role in this matter.

“It’s a constitutional issue at stake here,” she stated.

Here are the key takeaways from the arguments.

Delegating `Complex Medical Decisions’ to the States

The families contesting Tennessee’s law, which is similar to measures enacted in over 20 other states, contend that it discriminates based on transgender identity or sex.

For instance, a teen assigned male at birth might receive testosterone for delayed puberty, while a teen assigned female at birth may be denied testosterone to address gender dysphoria.

If the Supreme Court rules in favor of the challengers, Tennessee would face a higher burden to justify this discrimination under the equal protection clause.

The 6^th U.S. Circuit Court of Appeals ruled that such additional scrutiny was unnecessary, expressing hesitance about involving the courts in a matter where medical evidence is still evolving, suggesting that it might be more suitable for a democratic resolution.

The conservative justices commonly reflected this viewpoint.

Justice Brett Kavanaugh pointed out the difficulties of deciding between the risks associated with banning and permitting such treatments, implying that justices should not be the ones making this decision.

“How can the court determine which option is best? Shouldn’t this be a choice for policy makers?” he questioned.

Even if the court finds that Tennessee’s prohibition is overly broad and needs to be refined, Justice Samuel Alito suggested that judges might be ill-equipped to determine what those parameters should entail.

“Wouldn’t this lead to endless litigation based on decisions made by lay judges regarding complicated medical matters?” he asked.

Could Tennessee Consider a More Balanced Solution?

Justice Elena Kagan sought to aid the Justice Department in advocating for a more balanced approach by states regarding this issue.

She asked U.S. Solicitor General Elizabeth Prelogar if a court ruling against gender-affirming care bans would mean all such prohibitions must be discarded.

Prelogar affirmed that a broad ban like Tennessee’s would likely be ruled out, but there could still be room for regulation.

She cited West Virginia’s situation as an example, which originally contemplated an outright ban but chose a more measured stance by enforcing regulations such as requiring evaluations from two doctors who must confirm that the patient is at risk of self-harm.

“I believe laws like that would have a better chance of succeeding,” she suggested.

Justice Gorsuch Delivers No Comment

The justice many were keen to hear from was Justice Neil Gorsuch, the writer of the court’s 2020 ruling that prohibited workplace discrimination against transgender and gay workers.

However, Gorsuch remained entirely silent during this recent session.

In his 2020 ruling, joined by Chief Justice Roberts and the court’s liberal justices, Gorsuch stated that firing a transgender employee constituted discrimination based on sex, which breached civil rights laws.

Advocates challenging Tennessee’s legislation hope Gorsuch will apply similar reasoning to conclude that prohibiting transgender minors from receiving hormone treatment, available to their cisgender counterparts, also amounts to sex discrimination.

European Insights in the Debate

Conservative justices raised concerns about some European countries reassessing their positions on puberty blockers and hormone treatments for minors.

Justice Kavanaugh remarked, “This is clearly a shifting conversation. If this is truly evolving and countries like England and Sweden are reconsidering their positions, it suggests a significant warning for our court to not prematurely enshrine these issues into constitutional law when those leading the charge are now hesitating.”

In particular, justices referenced England’s evaluation of gender-affirming care, which indicated insufficient evidence regarding the long-term effects of such interventions for addressing gender-related issues.

Responding to this, Prelogar recognized the ongoing debate about the appropriateness of care and its timing for adolescents.

Nonetheless, she emphasized that there remains a consensus about the medical necessity of certain treatments for a portion of adolescents.

“That remains the case regardless of where you look for information,” she stated.

Justice Jackson Raises Concerns Over Civil Rights

Justice Jackson expressed her fears that if the court endorses Tennessee’s law, it may weaken earlier pivotal rulings that ensure equal protection, including the landmark case that legalized interracial marriage.

Jackson, along with Justice Clarence Thomas, both Black justices, are married to white partners. She questioned whether Tennessee’s stance might jeopardize the court’s 1967 decision in Loving v. Virginia, which allowed interracial marriage.

“I question if Virginia could have justified their actions just by making a classification argument like Tennessee is doing now,” she commented.

“I fear we might be compromising the basis of some of our essential equal protection precedents,” she added.

Nevertheless, Tennessee Solicitor General Matthew Rice clarified that the state’s ban on assisting minors in transitioning is rooted in the medication’s intended purpose, rather than the patient’s gender identity. He noted a boy may receive puberty blockers for precocious puberty, but not to transition.

“This is not a distinction based on sex; it’s based on purpose,” Rice explained. “The only way to treat it as a sex distinction is by conflating fundamentally different treatments that contradict medical realities and the statute definitions.”

ACLU Attorney Chase Strangio Makes History

History

The interaction was short, yet significant.

Chief Justice Roberts acknowledged Chase Strangio, an attorney from the American Civil Liberties Union, using the traditional phrase to honor the first openly transgender lawyer to appear before the Supreme Court.

“Mr. Strangio,” Roberts addressed him.

“Mr. Chief Justice, and may it please the court,” Strangio replied, adhering to convention.

Although the media highlighted his identity, neither Strangio nor the justices brought it up during the proceedings.

Strangio was no stranger to the courtroom. In 2019, he was part of a legal team that successfully advocated for three workers who were dismissed due to their sexual orientation or gender identity, resulting in a pivotal ruling that prohibited discrimination against LGBTQ workers.

He also contributed to a case that culminated in the Supreme Court’s 2015 ruling that legalized same-sex marriage, challenged a North Carolina law that mandated transgender individuals to use bathrooms corresponding to their birth certificate, and fought against attempts by Trump to exclude transgender individuals from military service.

Strangio’s latest court visit occurred amid ongoing national debates surrounding transgender rights. Notably, across the street, House Speaker Mike Johnson, R-La., has implemented new guidelines to restrict the first openly transgender member of the House, incoming Rep. Sarah McBride, D-Del., from utilizing women’s restrooms.