Supreme Court takeaways: What we learned from oral arguments in transgender care case

WASHINGTON – The theme kept coming up again and again.

During the approximately two-and-a-half hours the Supreme Court on Wednesday debated whether states can prevent transgender adolescents from using puberty blockers and hormone therapy, conservative justices repeatedly suggested the controversial issue is best left in the hands of state legislatures.

“It seems to me that it is something where we are extraordinarily bereft of expertise,” Chief Justice John Roberts said.

Attorneys for the Justice Department and the American Civil Liberties Union, who were representing the families challenging Tennessee’s ban, emphasized courts are required under the Constitution to scrutinize laws that treat people differently because of their sex or if they’re transgender ? which they said the ban does.

But they did not appear to win over anyone other than the liberal justices, including Justice Ketanji Brown Jackson, who at point said she was “suddenly quite worried” about her colleagues' questioning the role of the courts in the dispute.

“It’s a constitutional question that is being raised,” she said.

Here are the top takeaways from the debate.

Leaving `complicated medical issues' to states

The families challenging Tennessee’s law, which is similar to bans approved in more than 20 other states, argue it discriminates based on a person’s sex or transgender status.

That's because a teenager whose sex assigned at birth is male may be given testosterone to treat delayed puberty, but a teenager assigned female at birth who wants testosterone to treat gender dysphoria may not have it.

If the Supreme Court agrees, then the Constitution’s equal protection clause puts a greater burden on Tennessee to show that the discrimination is justified.

The 6^th U.S. Circuit Court of Appeals said that extra scrutiny isn’t required, in an opinion that expressed reluctance about getting the courts involved in an issue in which medical evidence is still developing so may be better decided by the democratic process.

The Supreme Court’s conservative justices often echoed that theme.

Justice Brett Kavanaugh said there are risks to both banning and allowing the treatments, putting justices in the difficult situation of determining which is better.

"How does the court choose which group? Why isn't that a choice for policy makers?" he asked.

Even if the court agrees with the challengers that Tennessee’s ban is too broad and should be narrowly tailored, judges are in a poor position to assess what those guardrails should be, Justice Samuel Alito suggested.

“Wouldn’t this be endless litigation with a decision based on determinations by lay judges regarding complicated medical issues?” he asked.

Could Tennessee take a more measured approach?

Justice Elena Kagan tried to help the Justice Department make a case for states taking a more measured approach to the issue.

She asked U.S. Solicitor General Elizabeth Prelogar if the court must throw out bans on gender-affirming care if the justices agree with the challengers that they are discriminatory.

Prelogar said that would be true of a sweeping ban like Tennessee’s, but it doesn’t make regulation impossible.

As an example, she pointed to West Virginia.

Prelogar said the state was looking at a total ban but ended up going with a more nuanced approach that imposes guardrails, such as requiring evaluations by two doctors who must find that the patient is at risk of harming themselves.

“I think a law like that is going to fare much better,” she said.

Author of 2020 decision protecting transgender workers is silent

The conservative justice most court watchers were eager to hear from was Justice Neil Gorsuch, author of the court’s 2020 decision barring workplace discrimination against transgender and gay employees.

Gorsuch, however, never tipped his hand. In fact, he didn’t speak at all.

In his 2020 opinion, which was joined by Roberts and the court’s liberals, Gorsuch said firing a transgender employee was discrimination based on sex and violated a civil rights law.

Those challenging Tennessee’s law hope Gorsuch will use the same logic to conclude that banning a transgender adolescent from receiving hormone therapy available to a cisgender teen likewise discriminates on the basis of sex.

Focus on Europe and the `evolving debate'

Conservative justices repeatedly brought up reevaluations some European countries have made about puberty blockers and hormone therapy for minors.

“It’s obviously evolving debate,” Kavanaugh said. “If it’s evolving like that and changing, and England is pulling back and Sweden is pulling back, it strikes me as a pretty heavy yellow light, if not red light, for this court to come in – the nine of us – and constitutionalize the whole area with the rest of the world or at least the countries that have been at the forefront of this are pumping the brakes on this kind of treatment because of concerns about the risks.”

In particular, the justices cited England’s review of gender-affirming care, which concluded that there’s no good evidence on the long-term outcomes of the care for managing gender-related distress.

Prelogar acknowledged that there’s a lot of debate about the care and when adolescents should get it.

But she said she stands by the fact that a consensus remains that treatments are medically necessary for some adolescents.

“And that’s true no matter what source you look at,” she said.

Justice Jackson worries court could undermine mixed-race marriage

Jackson worried that if the court upholds Tennessee’s law, the ruling could undermine previous landmark decisions guaranteeing equal protection under the law, such as the one allowing interracial marriages.

Jackson and Justice Clarence Thomas, who are each Black, are each married to white spouses. She questioned whether Tennessee’s arguments would undermine the court’s 1967 decision in Loving v. Virginia that allowed mixed-race marriages.

“I wonder whether Virginia could have gotten away with what they did here by just making a classification argument, the way that Tennessee is in this case,” she said.

“I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases,” she added later.

But Tennessee Solicitor General Matthew Rice said the state’s prohibition against helping minors transition was based on the purpose for medication rather than the sex of the patient. He said a boy could use puberty blockers to prevent precocious puberty, but not to use them to transition.

“That is not a sex-based line. That is a purpose-based line,” Rice said. “The only way to get to a sex-based line is by equating fundamentally different treatments that defy medical reality and defy how the statute itself sets out treatment.”

ACLU lawyer Chase Strangio makes history

The exchange was brief, but historic.

Roberts welcomed Chase Strangio, a lawyer for the American Civil Liberties Union, with the customary phrase that recognized the first openly transgender lawyer to practice before the high court.

“Mr. Strangio,” Roberts said.

“Mr. Chief Justice, and may it please the court,” Strangio said in the traditional response.

While the media gave much attention to his status, neither Strangio nor the justices referred to it.

Strangio had been in the courtroom before. He was part of a 2019 team that successfully represented three employees fired because of their sexual orientation or gender identity, leading to a landmark decision barring workplace discrimination against LGBTQ employees.

He also worked on a case that led to the Supreme Court’s 2015 decision legalizing same-sex marriage, on the challenge to a North Carolina law requiring transgender people to use bathrooms based on their birth certificate, and on efforts to stop Trump from banning transgender people from serving in the military.

His latest visit to the court came as transgender issues roil the country. Across the street, House Speaker Mike Johnson, R-La., has enacted new rules to prevent the first openly transgender member of the chamber, incoming Rep. Sarah McBride, D-Del., from using women’s bathrooms.

This article originally appeared on USA TODAY: 6 takeaways from oral arguments in Supreme Court transgender care case