Tomorrow the Supreme Court will hear oral arguments in a case involving gender affirming care. The case arises from a ban put in place in Tennessee. Though the decision won't be released until next summer, it could be critical to deciding the future of all such state bans and even whether some kind of national ban could survive the courts.
The key legal question the court will consider is whether a Tennessee law that bars puberty blockers, hormone therapy and surgery for trans minors discriminates on the basis of sex.
The American Civil Liberties Union and Lambda Legal argue that it does, because it prohibits such care only as treatment for gender dysphoria. The law makes exceptions for minors who need the treatments for other reasons. Puberty blockers, for example, can be used to treat children who experience precocious, or early, puberty, and physicians can still perform surgery on infants who are born with sex characteristics that fall outside the standard male or female binary.
Just days after the ACLU filed suit against Tennessee’s law in April 2023, the Justice Department intervened and filed its own complaint against the law, arguing that it discriminates against trans youths on the basis of sex and transgender status in violation of the 14th Amendment’s Equal Protection Clause. The Supreme Court granted the Biden administration’s appeal of a 6th U.S. Circuit Court of Appeals decision upholding Tennessee’s law. The court won’t consider the part of the law that bans surgery, which wasn’t covered by the lower court’s injunction.
In advance of the arguments tomorrow, the NY Times published an opinion piece by Chase Strangio, co-director of the L.G.B.T.Q. & H.I.V. Project at the American Civil Liberties Union. It's titled "May It Please the Court: Trans Health Saved My Life."
On Wednesday I will present oral argument before the Supreme Court in United States v. Skrmetti, a challenge to Tennessee’s ban on gender-affirming care for transgender adolescents.
I, along with my colleagues at the American Civil Liberties Union and other co-counsel, represent three transgender adolescents, their parents and a Tennessee doctor who is barred from treating her transgender patients under the age of 18 with the hormone therapy she is permitted to prescribe for purposes other than to treat gender dysphoria. In Tennessee, doctors can prescribe puberty-blocking medication and hormone therapy for many medical reasons. Under the Tennessee law that is now being challenged before the Supreme Court, they are barred from doing so to allow an adolescent to identify, live or appear in a way inconsistent with the person’s sex assigned at birth...
Though the question before the court is a relatively narrow one, the stakes are high, particularly as Donald Trump takes office in the wake of a presidential campaign in which transgender people and our health care played an outsize rhetorical role. If there is to be a judicial check on the incoming president’s efforts to federally ban health care for transgender minors and restrict it for transgender adults — as he has promised to do — this case provides a critical vehicle.
Strangio is arguing against a ban on gender affirming care for minors which makes this line in his piece especially significant.
Nearly two decades ago, when I was in my early 20s, I finally came out as transgender in what felt like a much more accepting world than that of my childhood.
He says he regrets having to wait so long but obviously there are other types of regret that he doesn't mention. Here's his pitch for gender affirming care:
This case has implications far beyond the courtroom. Will our sex assigned at birth dictate how we can live and identify? Must biology be destiny? Or will the court see that this argument over health care for transgender people is the next phase in a long struggle to shed ourselves of constraining sex stereotypes? That has been a central part of my journey through law and life — both seeing myself and helping others see me beyond the limiting expectations that were assigned to me at birth.
Frankly I don't think this makes much sense. He argues just a paragraph earlier that trans boys need testosterone to undergo male puberty at the same time as their peers. But that's not moving beyond "constraining sex stereotypes," it's just switching from one stereotype (female) to the other (male). The idea that children at 14 or younger should be able to make these kinds of life-altering choices when the same kids can't vote, drink, drive or get a tattoo doesn't make much sense. People are free to move beyond the limiting expectations placed upon them by society and their families (who to vote for, how much to drink and how often, how much ink to have done) when they are adults, not when they are kids. As children, they are stuck with the expectations placed upon them by society, schools and parents.
On the other side of the argument, the Boston Globe published an opinion piece today titled "Legal challenges to red-state bans on youth gender care have illuminated a cover-up."
A decision, which will influence how lower courts handle such lawsuits in several states, isn’t expected until next June. But already something important has been excavated by the Skrmetti case and other lawsuits against youth gender medicine bans: evidence of a medical scandal...
Let’s start with what these lawsuits have revealed about an advocacy group called the World Professional Association for Transgender Health. WPATH created guidelines to help people achieve “lasting personal comfort with their gendered selves,” which many American medical practitioners claim to defer to. In 2020, while preparing for its eighth “Standards of Care,” or SOC-8, WPATH contracted Johns Hopkins University’s Evidence-Based Practice Center to conduct systematic reviews of treatments for adolescents...
WPATH published SOC-8 in 2022, having removed a draft chapter on ethics but adding one on “eunuch gender identity.” What it hadn’t added were the systematic reviews. There were so few studies, the authors admitted, that “a systematic review regarding outcomes of treatment in adolescents is not possible.” Instead, they claimed that research indicated “a general improvement in the lives of transgender adolescents who, following careful assessment, receive medically necessary gender-affirming medical treatment.”
That assertion, we now know from unsealed court documents, was simply not true. Johns Hopkins had in fact successfully conducted systematic reviews, which found “little to no evidence about children and adolescents” — a conclusion shared with the US Department of Health and Human Services (HHS). Nothing supported the oft-repeated mantra of medical necessity.
The piece also notes that WPATH was pressured out of including age guidelines for treatment by Dr. Rachel Levine who was concerned it would “result in devastating legislation for trans care." In short, US medical groups and individuals have behaved like trans activists rather than following the evidence. We know this because European countries who've examined the evidence have found it lacking and backed away from gender affirming care for minors, most recently in the UK.
So tomorrow could be a very big day for the future of gender affirming care in America. No doubt all of the court's liberals and at least some of the conservatives have already made up their minds. We'll have to wait and see if there are any potential swing voters in this case.
