WASHINGTON – Supreme Court conservatives said Wednesday they are inclined to uphold state laws in half the nation that ban the use of hormone treatments for transgender teenagers.
Led by Chief Justice John G. Roberts Jr., they spoke of a development Medical debate about the use of puberty blockers and sex hormones in adolescents suffering from gender dysphoria.
Britain recently joined Sweden and Finland in sharply restricting these treatments for young people, they said. Roberts said judges should be cautious in deciding disputes among medical experts.
“Isn't that a stronger argument that we leave these decisions to the legislatures rather than trying to make them ourselves?” Roberts asked Attorney General Elizabeth Prelogar as she opened her argument.
“As I understand it, the Constitution leaves that question open
the people’s representatives instead of nine people, none of whom are doctors.”
Judge Brett M. Kavanaugh agreed.
“It just seems to me like the Constitution doesn’t take sides in solving this problem,” he said.
“There is obviously an evolving debate” about the risks and benefits of these medical treatments, he said. “England is withdrawing and Sweden is withdrawing. “It seems to me to be a pretty heavy yellow, if not red, light that this court, the nine of us, is stepping in and constitutionalizing the whole area while the rest of the world… is putting the brakes on this kind of treatment.”
Justices Clarence Thomas, Samuel A. Alito Jr. and Amy Coney Barrett appeared to agree.
Alito rebuked the Biden administration's attorney general for telling the court that there was an “overwhelming” medical consensus for prescribing hormones for teens with gender dysphoria.
In response, Prelogar said Britain had not imposed a complete ban on such treatments, even though they were now quite limited.
Meanwhile, Justice Neil M. Gorsuch, who wrote the court's 2020 opinion extending federal anti-discrimination protections to transgender employees, took no questions during the three-hour argument.
But the court's three liberals argued forcefully that the conservative state laws discriminate against transgender youth and should be repealed.
“Normally, parents can decide” what medical treatment is best for their child, said Justice Sonia Sotomayor. “But Tennessee decided to override it.”
As of 2021, Tennessee and 23 other states have passed laws banning the prescription of hormones and puberty blockers to anyone under 18 for the purpose of gender reassignment.
In defense of these laws, Tennessee Atty. Gen. Jonathan Skrmetti argued that the practice of medicine was the state's responsibility, and lawmakers there said the hormone treatments were risky and unproven for young people.
The Biden administration called for the Court to hear Tennessee case and calling the law discriminatory and unconstitutional.
Prelogar and ACLU attorney Chase Strangio asked the court to rule that they were suspects and should be struck down because the laws provide for sex and gender discrimination.
At a minimum, they said, the court should send the Tennessee case back to a lower court judge to decide whether the state can justify what Prelogar and Strangio called gender discrimination.
Strangio said the Tennessee law “took away the only treatment that relieved years of suffering for each of the juvenile plaintiffs.”
A ruling in Tennessee's favor would be a victory for conservative states, but would have no direct impact on California or other Democratic states that do not impose similar restrictions on medical treatment for transgender youth.
However, President-elect Donald Trump fought what he called “left-wing gender madness.” When he takes office, he said, he would direct federal agencies to “discontinue all programs that promote the concept of gender and gender transition at any age.”
It's also possible that Trump's Justice Department appointees could tell the court after they take office in January that they want to withdraw the government's appeal in the Tennessee case.
The justices could choose to dismiss the case without a ruling or focus only on the appeal filed by the ACLU.
Kavanaugh and Barrett asked about competitive sports in schools and whether officials could limit the participation of transgender girls. However, they agreed that the issue cannot be resolved in this case.