WASHINGTON — The conservative Supreme Court is poised to leap into another culture-war battle between red states and blue states, this time involving medical rights of transgender teens and their parents.
Two years after the conservative majority overturned national abortion rights, the justices will hear arguments Wednesday over whether states may ban hormone treatment and puberty blockers for adolescents suffering from gender dysphoria.
The case stands to make history for the transgender rights movement. American Civil Liberties Union attorney Chase Strangio will argue on behalf of the Tennessee parents, becoming the first openly transgender lawyer to argue in the high court.
The outgoing Biden administration argues “evidence-based treatments” for transgender adolescents under age 18 are “supported by the overwhelming consensus of the medical community.” They say the treatments are vital to young people grappling with gender identity issues, and that states have no right to intervene in their medical decisions.
Lawyers for Tennessee and 23 other conservative states want to outlaw the treatments, saying such “unproven and risky sex transition interventions’’ provide little benefit and potential long-term harm.
The two sides differ also on whether a child’s transgender identity is set early in life.
Biden’s Solicitor Gen. Elizabeth Prelogar told the court “there is broad consensus in the field that adolescents who have reached the early stages of puberty and have experienced gender dysphoria over a sustained period are very unlikely to subsequently identify as their sex assigned at birth.”
Left untreated, these adolescents are at high risk of depression and suicide, she said. Although acknowledging that some young people “de-transition” later, she said it is “very rare.”
Lawyers for the conservative states argue the opposite. They say gender distress among young people is both common and temporary.
“Without hormonal intervention, nearly all children exhibiting gender dysphoria align their gender identity with their sex by the time they reach adulthood,” Tennessee Atty. Gen. Jonathan Skrmetti wrote in defense of the law.
This red state vs. blue state divide over medical care for minors comes before a conservative high court that has already ruled states are free to permit or prohibit abortion. As a result, abortion remains legal in liberal-leaning states but is restricted or banned in most conservative states.
The pending case on transgender teens may uphold a similar divide.
California and the other Democratic-majority states do not restrict hormone treatments that are prescribed for minors, while Republican-led states have moved against the practice.
It comes before the court just weeks after Donald Trump won the presidential election after campaigning against what he called “the left-wing gender insanity being pushed on our children.”
His campaign website said “On Day One, I will revoke Joe Biden’s cruel policies on so-called ‘gender affirming care’… I will sign a new executive order instructing every federal agency to cease all programs that promote the concept of sex and gender transition at any age.”
Last year, in upholding Tennessee’s law, the 6th Circuit Court in Cincinnati took a moderate tone of deferring to state lawmakers who are grappling with “new and potentially irreversible medical treatments for minors.”
Its decision followed the logic of the Dobbs ruling on abortion and said states have the prime authority to regulate the practice of medicine.
The past decade has seen a sharp rise in the number of adolescents diagnosed with gender dysphoria, which is defined as “clinically significant distress resulting from persistent incongruence between a person’s gender identity and sex assigned at birth.”
Tennessee’s lawyers cited a study which said that in 2021, there were three times more diagnoses of gender dysphoria among minors in this country than in 2017.
Last December, Biden’s lawyers sought a nationwide ruling to settle the controversy. They urged the court to hear the Tennessee case and to strike down its law and others like it that restrict hormone treatments for transgender adolescents.
They argued these laws violate the Constitution’s guarantee of equal protection of the laws because they discriminate based on sex. For example, they said, testosterone may be prescribed for teens in Tennessee who were boys at birth but not girls.
The Supreme Court has yet to rule on whether government discrimination based on gender identity is unconstitutional. Four years ago, the justices decided job discrimination against transgender employees violates the federal Civil Rights Act.
Transgender rights advocates hope the court will keep its focus on the issue of discrimination.
“The state is taking the big-government position that it’s OK for them to prevent families from getting the healthcare their child needs,” said Jennifer C. Pizer, chief legal officer for Lambda Legal in Los Angeles. “The state says they need to conform to the state’s view of their gender. How is that not sex discrimination?”
Clients in the case include Samantha and Brian Williams and their 16-year-old transgender daughter. She said she felt “trapped” and “drowning” in her body, and came out as transgender when she was 12. She began treatment with puberty blockers and then estrogen.
“It was incredibly painful watching my child struggle before we were able to get her the life-saving healthcare she needed,” Samantha Williams said in a statement. “We have a confident, happy daughter now, who is free to be herself and she is thriving.”
The family said they may have to leave Tennessee if the state law is finally upheld.
Scholars at the UCLA Law School’s Williams Institute estimated that “110,300 youth who identify as transgender live in 24 states that ban access to puberty-blocking medication and gender-affirming hormone therapy.”
Nationwide, about 1.6 million individuals, or 0.6% of the U.S. population age 13 and older, identify as transgender, the institute said. Among those aged 13 to 17, 1.4%, or about 300,000 individuals, identify as transgender.
The medical debate over treatment for transgender teens continues.
In April, an independent review commissioned by Britain’s National Health Service and led by Dr. Hilary Cass found “remarkably weak evidence” to justify the use of puberty blockers and hormones with minors.
Although some may benefit, her report concluded “clinicians were unable to determine with any certainty which children and young people will go on to have an enduring trans identity.” She recommended “extreme caution” before prescribing cross-sex hormones for those under age 16.
Tennessee’s lawyers argued the developments in Europe undercut the administration’s claim of a medical consensus on their side.
“Many of the European countries that pioneered gender transitioning in minors reversed course,” they said. “Health authorities in Sweden, Finland, Norway, and the United Kingdom have all concluded that these interventions pose significant risks with unproven benefits.”
Trump’s reelection means his administration could change sides in late January and withdraw the government’s appeal in the Tennessee case, U.S. vs. Skrmetti.
It’s not clear how the court would respond if the new administration withdraws the appeal. The justices could dismiss the case without deciding the constitutional question, or they could choose to rule on the lawsuit filed by the Tennessee parents.
Either way, the court’s conservative majority is unlikely to sweep aside all the red state laws that restrict prescribing sex hormones for gender transition in adolescents.
Such a ruling should not have a direct and immediate impact on medical care in California and the other Democratic-led states.
In a friend-of-the-court brief, California Atty. Gen. Rob Bonta argued that a “categorical ban” on hormone treatments for transgender teens is bad medical policy and unconstitutionally discriminatory.
