Supreme Court Seems Likely to Uphold Tennessee's Ban on Medical Treatments for Transgender Minors

The Biden administration and the families and health care providers who challenged the Tennessee law urged the justices to apply the same sort of analysis that the majority, made up of liberal and conservative justices, embraced in the case four years ago when it found that "sex plays an unmistakable role" in employers' decisions to punish transgender people for traits and behavior they otherwise tolerate.

The issue in the Tennessee case is whether the law violates the equal protection clause of the 14th Amendment, which requires the government to treat similarly situated people the same.

Tennessee's law bans puberty blockers and hormone treatments for transgender minors, but allows the same drugs to be used for other purposes.

Solicitor General Elizabeth Prelogar, the administration's top Supreme Court lawyer, called the law sex-based line drawing to ban the use of drugs that have been safely prescribed for decades and said the state "decided to completely override the views of the patients, the parents, the doctors."

She contrasted the Tennessee law with one enacted by West Virginia, which set conditions for the health care for transgender minors, but stopped short of an outright ban.

Rice countered that lawmakers acted to regulate "risky, unproven medical interventions" and, at one point, likened the use of puberty blockers and hormone treatments to lobotomies and eugenics, now thoroughly discredited but once endorsed by large segments of the medical community.

Rice argued that the Tennessee law doesn't discriminate based on sex, but rather based on the purpose of the treatment. Children can get puberty blockers to treat early onset puberty, but not as a treatment for gender dysphoria.

"Our fundamental point is there is no sex-based line here," Rice said.

While the challengers invoked the 2020 ruling in Bostock v. Clayton County for support, Tennessee relied on the court's precedent-shattering Dobbs decision in 2022 that ended nationwide protections for abortion and returned the issue to the states.

The two sides battled in their legal filings over the appropriate level of scrutiny the court should apply. It's more than an academic exercise.

The lowest level is known as rational basis review and almost every law looked at that way is ultimately upheld. Indeed, the federal appeals court in Cincinnati that allowed the Tennessee law to be enforced held that lawmakers acted rationally to regulate medical procedures, well within their authority.

The appeals court reversed a trial court that employed a higher level of review, heightened scrutiny, that applies in cases of sex discrimination. Under this more searching examination, the state must identify an important objective and show that the law helps accomplish it.

If the justices opt for heightened scrutiny, they could return the case to the appeals court to apply it. That's the course Prelogar and Strangio pushed for on Wednesday, though there did not seem to be much support for it.

Gender-affirming care for youth is supported by every major medical organization, including the American Medical Association, the American Academy of Pediatrics and the American Psychiatric Association.

But Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh all highlighted a point made by Tennessee in its legal briefs claiming that health authorities in Sweden, Finland, Norway and the United Kingdom found that the medical treatments "pose significant risks with unproven benefits."

If those countries "are pumping the brakes on this kind of treatment," Kavanaugh said, why should the Supreme Court question Tennessee's actions?

None of those countries has adopted a ban similar to the one in Tennessee and individuals can still obtain treatment, Prelogar said.

Kavanaugh, who has coached his daughters' youth basketball teams, also wondered whether a ruling against Tennessee would give transgender athletes "a constitutional right to participate in girls' sports."

Prelogar said a narrow decision would not affect the sports issue.

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Associated Press writers Lindsay Whitehurst, Andrew DeMillo in Little Rock, Arkansas, Geoff Mulvihill in Cherry Hill, New Jersey, and Kimberlee Kruesi in Nashville, Tennessee contributed to this report.