WASHINGTON — The U.S. Supreme Court is set to consider the constitutionality of restrictions that bar access to gender-affirming care for transgender youth. On Dec. 4, it will hear arguments in a case that spotlights Tennessee's law.
The law prevents transgender youth from getting care in the state to affirm their gender and treat gender dysphoria, restricting access to treatments like hormone therapy and puberty blockers. It also allows providers who provide gender-affirming care to transgender minors to be sued by their families, or by the state itself.
While the case is ultimately expected to determine the legality of these kinds of laws according to the United States Constitution, other factors are at play. The court could issue its opinions during the first few months of President-elect Donald Trump's second term, giving him the chance to seize on issues that became a fixture of his campaign.
While the Biden administration supports the American Civil Liberties Union in its case against the law, the incoming Trump administration could pull back its support.
The case could also result in another test of the Dobbs decision, determining whether it also gives states the right to decide on how to handle healthcare for minors — and specifically transgender minors.
More information about the case is available below.
What does Tennessee's law do?
The first bill introduced during the 2023 legislative session in Tennessee was aimed at restricting transgender minors' access to gender-affirming care. It was introduced by Republican Sen. Jack Johnson, of Franklin, and was eventually signed into law.
It blocks transgender minors from accessing puberty blockers, hormone therapies and surgery treatments as a way to treat gender dysphoria. However, the law allows the same kinds of treatment for minors who do not have gender dysphoria. Lawmakers argued that the law was designed to protect children from making irreversible decisions while they're still developing.
According to the Endocrine Society Guidelines, transgender adolescents are only eligible for puberty-delaying treatment if a mental health professional confirms several aspects of their health, including that they have a long-lasting pattern of gender dysphoria, it worsened with the onset of puberty and they have sufficient "mental capacity" to consent to the treatment.
Providers also need to follow similar guidelines when deciding if a transgender adolescent is eligible for gender-affirming hormone therapy. Surgeries are rarely used as a kind of treatment for minors, several advocates said while the bill was discussed in state commissions.
The law goes on to liken gender-affirming care to the opioid epidemic, alleging that pharmaceutical companies sought to profit from treatments. The Williams Institute said around 300,000 children across the United States — or less than 1% of the national population — are transgender.
The law says it does not matter if minors or their parents consent to gender-affirming care, and opens providers up to lawsuits from the attorney general and minors' families if they perform gender-affirming care.
How did the case end up in the Supreme Court?
In April 2023, the ACLU sued to block the law from going into effect. It was filed alongside Lambda Legal as well as Akin Gum Strauss Hauer and Feld LLP. They sued on behalf of Samantha and Brian Williams of Nashville, as well as their 15-year-old transgender daughter. Two other families filed anonymously, along with a Memphis doctor.
In April 2023, the U.S. Department of Justice also challenged the state's law. Both the ACLU and DOJ argued that it specifically targets transgender youth since it explicitly does not allow the procedures for the purpose of helping treat distress as a result of their gender identity and gender expression.
In June 2023, the court granted a partial injunction to prevent parts of the law from going into effect. The injunction blocked restrictions from going into place for everything but surgeries related to gender-affirming care.
The injunction was then appealed to the 6th Circuit Court of Appeals, a federal court that covers Tennessee, Kentucky, Ohio and Michigan. It effectively overturned the injunction and later issued its opinion in September 2023. That opinion allowed the ban to go into effect.
In separate cases, the 7th Circuit Court of Appeals and the 11th Circuit Court of Appeals also allowed bans to take effect.
In June 2024, the U.S. Supreme Court announced it would hear arguments about the case. In the leadup to the case, an 18-state coalition including California and New York filed an amicus brief opposing Tennessee's law. Jonathan Skrmetti, Tennessee's attorney general, also spoke about the case.
"It will be the first time they've taken up something for transgender care related to youth, and it will be the first time they've taken up a constitutional question involving gender identity issues. So potentially, this could be a pretty big case," he said during a teleconference with reporters.
The Supreme Court also granted a request to split argument time between attorneys representing the plaintiffs and U.S. attorneys. Chase Strangio, co-director of the ACLU's LGBTQ and HIV Project, will argue on behalf of the families and doctors who brought the lawsuit. He will also be the first openly transgender attorney to argue before the U.S. Supreme Court, according to the Associated Press.
What are the major arguments in the case?
The ACLU is arguing that Tennessee's law is a violation of the 14th Amendment, saying that the state's ban amounts to discrimination against transgender people in violation of the Equal Protection Clause. As support for its argument, attorneys highlight that cisgender youth can still access gender-affirming care despite there being restrictions for transgender youth who need to treat gender dysphoria.
It also points to district court rulings in Arkansas, Alabama, Florida, Georgia, Indiana, Kentucky and Tennessee that blocked similar laws. Attorneys also highlighted guidance from medical experts and organizations, including the American Medical Association and American Academy of Pediatrics, which oppose restrictions on gender-affirming care.
They also argued that the law violates the right to parental autonomy and is preempted by the Affordable Care Act. Ultimately, the ACLU warned that by allowing the ban to stay in effect transgender youth may lose access to needed medical care which previously allowed them to flourish.
The state and supporters of the law argue it's meant to protect children from making decisions that could impact the rest of their lives while they are still developing, comparing the state's restrictions to restrictions on allowing children to get tattoos.
"The view in Tennessee is kids can't consent to these life-altering interventions. There are other states that want to protect them, but our position in Tennessee is it should be up to the people's elected representatives, rather than the courts, to decide what the regulations on medicine should be," said Skrmetti in a previous press conference. "There are a lot of reasons to be concerned that there have been really big changes in a short time, and in situations like that, democracy is the answer."
Citing the Dobbs decision, the 6th Circuit Court of Appeals also said there was no tradition in the U.S. to determine the "level of generality" that a parent can have to make decisions for their children. Without that tradition in place, the court said it's up to the states to decide the extent to which parents can make choices for their children.
Other circuit court decisions that allowed restrictions to go into effect could bolster the state's arguments.
Each side is allowed 30 minutes to present arguments before the Supreme Court. In general, the court hears two arguments per day. Since the cases also involve reviewing decisions of previous courts, there are no juries and no witnesses.
It also rarely involves attorneys arguing the merits of their cases. Justices usually arrive at session after reviewing cases and forming their own questions, which they ask attorneys during oral arguments.
What happens after the Supreme Court hears arguments?
The Supreme Court is usually in session October through late June or early July. They often issue some of their biggest, most closely watched decisions in the closing days of a session.
There are generally no other rules about when decisions need to be released. Unanimous decisions are usually released sooner than ones with concurring or dissenting opinions. Considering the court's 6-3 split, there will likely be different opinions surrounding gender-affirming care for transgender minors.
All justices need to agree on the contents of the opinion before it is publicly delivered by signing onto it.
Several other states have also passed laws restricting gender-affirming care for transgender minors. Those states include Alabama, Arkansas, Arizona, Florida, Georgia, Idaho, Indiana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia and Wyoming.
The Supreme Court's decision could impact those states' laws.