In its upcoming term, the Supreme Court will once again hear a case that involves a highly contentious question that lies at the heart of personal liberty: Who should decide what medical care a person receives? Should it be patients and their families, supported by doctors and other clinicians, using guidelines developed by the leading experts in the field based on the most current scientific knowledge and treatment practice? Or does the Constitution permit lawmakers to place themselves, and courts, in the middle of some of the most complex and intimate decisions people will make in their lives?
The case, United States v. Skrmetti, has been brought by the Biden administration to challenge a ban in Tennessee on gender-affirming care for adolescents that all major American medical organizations support. Tennessee is one of some two dozen states that have passed laws limiting gender-affirming care for young people. The appeal argues that these bans are an unconstitutional form of sex discrimination: They forbid long-used treatments for transgender adolescents that are also given to children who are not transgender for different reasons.
The Tennessee law, called the Protecting Children From Gender Mutilation Act, prohibits the use of puberty-blocking medications for transgender adolescents, for example, but permits them for children who go into puberty at an early age. It bans the use of sex hormones like testosterone in transgender adolescents but allows it for other health issues, such as for children assigned male at birth. It bans gender-affirming surgeries for transgender adolescents — such surgeries are extremely rare — but allows similar surgical procedures that affirm the sex a child is assigned at birth, even on infants who are intersex.
The Supreme Court ruled in 2020 — somewhat surprisingly given its conservative majority — that differential treatment of transgender and gay people is impermissible under civil rights law. “It is impossible,” Justice Neil Gorsuch wrote in his decision in that landmark employment discrimination case, “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Lawyers seeking to overturn gender-affirming-care bans will urge the court to follow the logic of that ruling and declare the Tennessee law and others like it unconstitutional.
Lawyers arguing in favor of these bans have taken a sharply different approach. In a striking echo of the arguments used to challenge medical abortion, they have asserted, against the consensus of the mainstream medical science, that the standard treatments for transgender children are not based in evidence and represent a grave risk to the health and well-being of young people.
This argument has been floating around conservative circles in the United States for some time, and some European government health care systems have embraced it, too, with some limiting access to gender-affirming care for young people, citing doubts about the evidence supporting it. The argument has been supercharged in recent months by an unlikely ally on the other side of the Atlantic Ocean: the British pediatrician Hilary Cass.