Supreme Court appears ready to discriminate against trans youth by denying them care | Opinion
Sadly, it appears that the Supreme Court is poised to uphold a Tennessee law that prohibits transgender youth from obtaining gender-affirming care. In a case heard last week, the six conservative justices expressed deference to the Tennessee legislature’s choice, indicating that the court is likely to reject the constitutional challenges to the law.
At issue in United States v. Skrmetti is whether a state may prohibit puberty blocking hormones from being administered to transgender teenagers. Twenty-six states, all with Republican-controlled state legislatures, have passed laws restricting gender-affirming care for minors — legislation that impacts an estimated 110,000 trans teens residing in these states, according to NPR.
The Tennessee statute, known as SB1, prohibits healthcare providers from “(prescribing), administering or dispensing any puberty blocker or hormone” if that treatment is provided for the purpose of “(enabling) a minor to identify with or live as a purported identity inconsistent with the minor’s sex.” The law defines sex as the “immutable characteristics of the reproductive system that define the individual as male or female, as determined by anatomy and genetics existing at the time of birth.”
Anti-trans legislation
Why did Tennessee and 25 other states adopt such laws? Transgender individuals have become the focus of political culture wars.
It is almost unheard of for a state to prohibit a medical treatment approved by the Food and Drug Administration and supported by every leading medical organization. Tennessee purports that its law was adopted because of the potential harmful consequences of puberty blocking hormones. But after a thorough review of the medical evidence, the federal district court in the case concluded that “the weight of the evidence” did not support the state’s contention that “either puberty blockers or cross-sex hormones pose serious risks” to trans adolescents. At the same time, the court found that “the benefits of the medical procedures banned by SB1 are well-established.”
It is not a coincidence that only Republican-controlled legislatures adopted such laws while 16 states as well as the District of Columbia (all with Democratic legislatures) have shield laws protecting access to gender-affirming care for trans youth. These laws affirm the right of minors to receive gender-affirming care, and protect patients, guardians and medical professionals from prosecution for seeking or providing such care.
It is not that there is different medical evidence in these states. Rather, it’s all about the desire of conservatives to deny the reality and existence of transgender individuals to advance their political agenda.
Sex discrimination
One would hope that the Supreme Court could transcend culture wars and decide the case as a matter of equal protection law. From that perspective, it should be easy to strike down the Tennessee law.
As the district court found, it is sex discrimination. In the 2020 case Bostock v. Clayton County, Georgia, a case that involved a trans woman who was fired after transitioning, the high court held that discrimination against transgender individuals is sex discrimination that violates federal employment law. The court explained that, if she were male, she would still have her job. In other words, clear discrimination based on sex.
And this is exactly what Tennessee is doing: preventing medical care from being administered based on the sex of the patient. A minor assigned female at birth is prohibited from receiving the same testosterone medication that a minor assigned male at birth might receive — even if both minors are prescribed the medication for the purpose of making their bodies more masculine in appearance.
Moreover, the Tennessee law is discriminating on the basis of gender identity. Transgender individuals are discriminated against by being prevented from accessing medical care others can receive.
How will the court decide?
At the oral arguments on Dec. 4, the conservative justices said this is a choice to be made by the political process. But it is the role of the courts to stop discrimination.
At the oral argument, Justice Ketanji Brown Jackson involved the example of the court striking down laws in 16 states that prohibited interracial marriage. Her point was that deference to the legislature is inappropriate when there is discrimination against a minority group which has little chance to prevail in the political process.
I have friends with transgender children who have moved from states that prohibit gender-affirming care to states that allow it. I have friends in California with transgender children who are petrified that the Trump administration will try and ban gender affirming care throughout the country.
It is tragic to see legislatures advance their political agenda at the expense of vulnerable children. It will be shameful if the Supreme Court allows it.
This story was originally published December 11, 2024 at 12:57 PM with the headline "Supreme Court appears ready to discriminate against trans youth by denying them care | Opinion."