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On Wednesday, the Supreme Court heard oral arguments in United States v. Skrmetti, the lawsuit over Tennessee’s bill, SB1, banning gender-affirming care for minors. Alabama passed a similar bill, SB184, in 2022 which went into effect a year later following a ruling by the 11th Circuit Court.
The plaintiffs in United States v. Skrmetti have argued that because SB1 is conditioned on a quasi-suspect classification, sex, the law should be subject to heightened scrutiny. If a majority of the justices agree, it could limit how states can place restrictions on accessing gender-affirming care.
Outside the Supreme Court Building on Wednesday morning, protestors shared how access to gender-affirming care saved their lives and the lives of their transgender children. At a dueling event, conservative activist and media personality Matt Walsh said “we are not going to rest until every child is protected, until trans ideology is entirely wiped from the earth.”
Both SB1 and SB184 criminalize providing certain medical treatments to transgender minors, while keeping those same treatments legal for other uses. The Alabama law singles out treatment “for the purpose of attempting to alter the appearance of or affirm the minor’s perception of his or her gender or sex, if that appearance or perception is inconsistent with the minor’s sex.”
In recent months, Republicans have repeatedly attacked transgender people and gender-affirming care looking to score political points. President-elect Donald Trump ran campaign ads saying Kamala Harris “is for they/them” and in September Alabama Attorney General Steve Marshall filed an amicus brief arguing that employer healthcare plans shouldn’t be required to cover necessary gender-affirming care.
South Carolina Congresswoman Nancy Mace has stayed in the headlines by directly attacking Congresswoman-elect Sarah McBride, who will be the first openly transgender member of the House. Mace also introduced federal ‘bathroom bills,’ legislation which would make it illegal for transgender people to use the bathroom matching their identity. Alabama state representative Susan DuBose has promised she will champion similar legislation during the upcoming session.
Over more than two hours Wednesday morning, U.S. Solicitor General Elizabeth Prelogar and ACLU attorney Chase Strangio made the case for applying strict scrutiny to SB1. Tennessee’s Solicitor General, James Matthew Rice, defended the position that the bill does not include any sex-based classifications which would be subject to heightened scrutiny.
Explaining why the court should view the law as sex-based discrimination, Prelogar pointed directly to the text of SB1. It “says you can’t have these medications to live or identify in a manner inconsistent with your sex,” she told the justices. “That is quintessentially imposing sex-based rules and expectations on adolescents in the state.”
“The Legislature was quite up front that part of the interest here is in ensuring that minors appreciate their sex and not become disdainful of their sex, or as Judge White put in dissent below, that they look and live like boys and girls,” Prelogar continued.
The liberal justices largely seemed to agree with Prelogar’s arguments, but the conservative justices were far more skeptical. Justice Samuel Alito repeatedly pointed to recent restrictions on gender-affirming care in European countries, despite those being less sweeping than restrictions in Tennessee and Alabama, and cited the Cass Review multiple times. An independent report commissioned by the UK’s National Health Service, the Cass Review questioned existing research on transgender healthcare and recommended further restrictions.
However, the Cass Review has been harshly criticized by other experts in the field. In one such report, critics claimed the review “repeatedly misuses data and violates its own evidentiary standards by resting many conclusions on speculation.” And earlier this year, two UK gender clinicians alleged the lead author, Hilary Cass, was personally opposed to gender-affirming care and recommending people read the controversial anti-transgender book Irreversible Damage before she began work on the report.
Over the course of oral arguments, Justice Ketanji Brown Jackson repeatedly compared the case to Loving v. Virginia, the 1967 Supreme Court case that struck down bans on interracial marriage. Jackson even told Prelogar at one point that she wondered “whether Virginia could have gotten away with what they did here by just making a classification argument the way that Tennessee is in this case.”
Justice Elena Kagan was also skeptical of Rice’s arguments on behalf of Tennessee, calling it “a dodge to say that this is not based on sex—it’s based on medical purpose—when the medical purpose is utterly and entirely about sex.”
During Rice’s time speaking before the court, he repeatedly discussed “detransitioners,” people who identified with a different gender and then ceased doing so, and questioned the benefits of transitioning. “And the question of how many minors have to have their bodies irreparably harmed for unproven benefits is one that is best left,” he began saying at one point.
“I’m sorry, counselor,” Justice Sonia Sotomayor then interrupted. “Every medical treatment has a risk. There is always going to be a percentage of the population under any medical treatment that’s going to suffer a harm.”
Like Rice, Chief Justice John Roberts seemed amenable to the idea that legislative bodies, not the courts, should make determinations about the proper regulation of gender-affirming care.
Jackson quickly pointed out she feels the court must adjudicate potential unconstitutional legislation, saying she “understood that it was bedrock in the equal protection framework that there was a constitutional issue in any situation in which the legislature is drawing lines on the basis of a suspect classification.”
The Supreme Court is expected to issue a ruling on United States v. Skrmetti by sometime next summer. Legal experts generally concluded after listening to oral arguments that there is likely a majority on the court for upholding the Tennessee law.
