The US supreme court heard one of the most consequential LGBTQ+ rights cases in its history on Wednesday, with arguments that laid bare the conservative supermajority’s broad threats to civil rights, bodily autonomy and decades of legal precedent.
In US v Skrmetti, the court is weighing Tennessee’s ban on gender-affirming healthcare for transgender youth, one of 24 state laws across the US prohibiting treatments that are part of the standards of care endorsed by every major medical association in the country.
The case originated with three trans youth and their parents who sued Tennessee, arguing the care – puberty blockers and hormone therapy – was medically necessary and “life-saving”. The Biden administration joined the case, asserting Tennessee’s law was unconstitutional.
The case hinges on the legal question of whether Tennessee’s healthcare ban constitutes a form of sex discrimination that merits “heightened scrutiny”, which would mean the case be returned to lower courts for a more rigorous review. But the oral arguments made clear that a ruling against the trans plaintiffs could have far-reaching implications for trans rights and anti-discrimination protections more broadly.’
The US and the ACLU argued that the law is discriminatory and bans treatments based on sex classifications; under Tennessee’s ban, cisgender boys with delayed puberty can be prescribed testosterone, but transgender boys are barred from accessing the same treatments for gender-affirming care. Tennessee argued that the law is an “across the board rule” to “protect minors” from “risky” medical interventions.
Elizabeth Prelogar, the US solicitor general, noted that the court would “turn its back on 50 years of precedent” if it sided with Tennessee’s arguments that the law does not constitute sex discrimination warranting closer scrutiny.
Justice Ketanji Brown Jackson, a liberal, repeatedly compared Tennessee’s ban with the prohibition on interracial marriage, overturned by the landmark Loving v Virginia decision in 1967: “Some of these questions … sound very familiar to me, [such as] the arguments made back in the day, the 50s and 60s, with respect to racial classifications.” Jackson later added: “I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases.”
“I share your concerns,” responded the ACLU’s Chase Strangio, the first out trans lawyer to appear before the court. “If Tennessee can have an end-run around heightened scrutiny … that would undermine decades of this court’s precedent.”
Kate Redburn, co-director of Columbia Law School’s Center for Gender and Sexuality Law, explained after the arguments that there was the potential for an outcome that “would authorize a much broader range of sex discrimination, which has been previously found unconstitutional.
“There could be situations where the government could distinguish between people by sex, and courts would not intervene,” they continued, saying a ruling in favor of Tennessee could make it easier for states to pass policies that discriminate on the basis of pregnancy or other reproductive choices, for example: “Regulations that we now would say are based on stereotypes – especially stereotypes about what women’s proper role is – depending on how expansive this opinion is, those stereotypes could be authorized.”
Justice Sonia Sotomayor, another liberal, also noted that a decision declaring that the ban on care is not discriminatory could open the door to bans on gender-affirming healthcare for all trans people, not just youth: “You’re licensing states to deprive grown adults of the choice of which sex to adopt.”
Matthew Rice, Tennessee’s solicitor general, responded that the “democratic process” was the “best check on potentially misguided laws”. Sotomayor interjected: “When you’re 1% of the population, or less, it’s very hard to see how the democratic process is going to protect you. Blacks were a much larger part of the population and it didn’t protect them. It didn’t protect women for whole centuries.”
“That was a chilling moment,” said Sydney Duncan, senior counsel at Advocates for Trans Equality, who sat in the courtroom. “Is the next step to ban adult healthcare? The state didn’t have a great answer there.” She noted that Tennessee’s law is rooted in “bad science” and misinformation. Doctors cited as expert witnesses for the state have repeatedly been discounted and rebuked by US judges for their lack of credentials and anti-trans bias, the Guardian recently reported.
Justice Brett Kavanaugh, a conservative, asked Prelogar about bans on trans people in athletics: “If you prevail here … would transgender athletes have a constitutional right to play in women’s and girls’ sports?” Prelogar responded that the sports issue – which has become a focus of Republicans’ culture war – was related to a different legal question. Kavanaugh’s questions raised some concerns from advocates that the outcome could have broader impacts for LGBTQ+ rights beyond youth healthcare.
“The justices likely see this case as a potential harbinger of future litigation and constitutional questions about trans people’s equal protection,” Redburn said.
Rice also claimed that trans plaintiffs were seeking a “right to engage in nonconforming behavior”. Redburn said the remark was noteworthy and raised broader concerns about people’s rights to self-expression:
“You can see the motivation is not, as the state has suggested, to protect the health of children, which is something that states have a right to regulate, but instead is based on not only particular animus towards transgender individuals, but also a broader social vision that upholds a certain gender hierarchy.”
The conservative justices appeared reluctant to intervene and block Tennessee’s ban, which means the outcome next year could deliver a dramatic blow to trans rights at a time of escalating attacks on LGBTQ+ equality across the US.
“It’s so important that we understand this case as deeply connected to … laws on race and sex discrimination more broadly,” said Kimberly Inez McGuire, executive director of United for Reproductive and Gender Equity (Urge), an advocacy group. “These questions of what is privacy, what is autonomy, can we control our bodies and our families – these are all intertwined.”
The questions from Jackson and Sotomayor, she said, made clear that “the struggle for the recognition of trans people’s humanity cannot be separated from questions of race and gender equality that have long been cornerstones of this nation’s jurisprudence”, McGuire said.
She noted that anti-abortion and anti-trans activism were closely linked and that this case would probably be followed by efforts to ban adult gender-affirming care, birth control, IVF and other healthcare: “We have seen the right use marginalized people as the tip of the spear for a much larger attack … This voracious desire to be involved in our most personal, private decisions has no end.”
Imara Jones, a podcaster and CEO of the news organization TransLash, who sat in the room, noted that the healthcare under threat was long established: “If you eliminate gender-affirming care, you’re going to be shortening people’s lives and diminishing the quality of their lives. It’s a very real impact. This is not a constitutional or esoteric consideration for trans people. It’s as personal as it gets.”
Bamby Salcedo, a longtime activist and president of the TransLatin@ Coalition, said she and other advocates were bracing for a harmful ruling, but added: “For many of us as a community, hope is the last thing that will die. Regardless of the outcome, we as people are resilient … and we are going to continue to exist despite the oppression we may experience because of this decision. We are going to continue to fight like hell for all of us to be protected.”
