The Supreme Court will hear arguments on Wednesday over whether a Tennessee law denying some kinds of medical care to transgender youth runs afoul of the Constitution.
Twenty-three other states have similar laws. The court’s decision, expected by June, will almost certainly yield a major statement on transgender rights against the backdrop of a fierce public debate over the role gender identity should play in areas as varied as sports, bathrooms and pronouns.
The Tennessee law prohibits medical providers from prescribing puberty-delaying medication, providing hormone therapy or performing surgery to treat what the law called “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” But the law allows those same treatments for “a congenital defect, precocious puberty, disease or physical injury.”
Three families and a doctor sued to challenge the law, and the Biden administration intervened on their side. The challengers said the law violated the Constitution by denying equal protection to transgender people, primarily by discriminating against them based on sex.
Whether the law draws distinctions based on sex matters because the Supreme Court has said that such discrimination subjects state laws to a demanding form of judicial review called “heightened scrutiny.”
The court has never said that about discrimination based on transgender status as such, and it is very unlikely to do so now. Unless the court rules that heightened scrutiny applies, it will almost certainly uphold the law. If such scrutiny does apply, the justices will probably return the case to the lower courts to apply it.
The challengers pointed to parts of the law that set out its justifications, saying they drew distinctions based on sex. One provision said the state had “a legitimate, substantial and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty.” Another prohibited treatments “that might encourage minors to become disdainful of their sex.”
Lawyers for the Biden administration cited those provisions in telling the justices that the purpose and effect of the law was to discriminate based on sex.
“Put simply,” the administration’s brief said, “an adolescent assigned female at birth cannot receive puberty blockers or testosterone to live as a male, but an adolescent assigned male at birth can.”
But Tennessee’s lawyers told the justices that the distinctions made by the law were not based on sex. The law “draws a line between minors seeking drugs for gender transition and minors seeking drugs for other medical purposes,” they wrote. “And boys and girls fall on both sides of that line.”
The Supreme Court has only once before heard arguments in a case on transgender rights. The question in that case, Bostock v. Clayton County, decided in 2020, was whether a federal civil rights law protected transgender people from employment discrimination.
The court said yes, relying on the law’s prohibition of discrimination “because of sex.”
“It is impossible,” Justice Neil M. Gorsuch wrote for a six-justice majority, “to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
Justice Gorsuch was appointed by President Donald J. Trump. Chief Justice John G. Roberts Jr., another Republican appointee, joined the majority opinion, as did what was then the court’s four-member liberal wing, all appointed by Democratic presidents.
In a dissent, Justice Samuel A. Alito Jr. wrote that the majority had acted as a legislature rather than as a judicial body.
“The court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous,” he wrote. “Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’”
The Bostock case turned on the language of a federal law, while the new case concerns the equal protection clause of the 14th Amendment. Last year, a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit, in Cincinnati, ruled that Tennessee’s law had a rational basis as a reasonable legislative response to contested medical evidence.
Judge Jeffrey S. Sutton, writing for the majority, said the law did not draw distinctions based on sex.
“The laws regulate sex-transition treatments for all minors, regardless of sex,” he wrote, adding: “No minor may receive puberty blockers or hormones or surgery in order to transition from one sex to another. Such an across-the-board regulation lacks any of the hallmarks of sex discrimination.”
That meant, Judge Sutton wrote, that the law was subject to only a relaxed and deferential form of judicial scrutiny called rational basis review.
“The unsettled, developing, in truth still experimental, nature of treatments in this area surely permits more than one policy approach,” Judge Sutton wrote, “and the Constitution does not favor one over the other.”
The families and the Biden administration filed separate petitions seeking Supreme Court review. The families’ petition posed two questions: whether the law violated the equal protection clause and whether it ran afoul of “the fundamental right of parents to make decisions concerning the medical care of their children.” The administration pressed only the equal protection claim.
The court granted only the administration’s petition, meaning that the question of parental rights is not directly before the justices.
The court’s decision to grant only the administration’s petition has injected a complication into the case, as the government will almost certainly switch sides after Mr. Trump takes office for the second time in January. The justices will have to make adjustments, perhaps by belatedly granting the families’ petition for review, if they are to decide the constitutionality of the law.
It is also possible, though not especially likely, that the case may evaporate, as did another one on transgender rights after Mr. Trump first took office in 2017. That March, after the Trump administration reversed positions on the rights of transgender students, the Supreme Court dismissed a case it had previously agreed to decide, on whether a transgender boy in Virginia could use the boys’ bathroom at his high school.