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IN 2020Justice Neil GorsuchUKUS Your browser does not support the element. delighted progressives and infuriated many on the right when he wrote, for a 6-3 majority, that Title VII of the Civil Rights Act of 1964 barred discrimination against gay, lesbian and transgender employees. That ruling,so alarmed Josh Hawley, Missouri’s junior senator, that he rose on the Senate floor to warn against the “end of the conservative legal movement....as we know it”.Four years on, battles over transgender rights in America have expanded. Fights over access to public bathrooms, trans people playing on women’s sports teams and medical care for trans minors have animated elections and courtrooms alike. The most significant change in the public policy landscape is the adoption of laws banning certain medical treatments for transgender minors. In 2020 there were no such laws; today they are found in 26 states. which the Supreme Court heard on December 4th, concerns one such law in Tennessee. asks whether Tennessee’s restrictions on medical treatment for trans minors violate the equal-protection clause of the 14th amendment. The law’s challengers—three children and their parents, along with the federal government—say denying puberty blockers and hormone therapy to trans youth, while allowing them for others, amounts to unconstitutional discrimination.After two and a half hours of argument, the court’s three liberal justices—Ketanji Brown Jackson, Elena Kagan and Sonia Sotomayor—seemed to side with the challengers. Four of the court’s six conservative justices—Samuel Alito, Brett Kavanaugh, Clarence Thomas and the chief, John Roberts—looked to be on Tennessee’s side. Justice Amy Coney Barrett’s questions suggested an open mind, leaning toward Tennessee, while the author of the last win for transgender plaintiffs, Justice Gorsuch, was the only member of the court to remain silent throughout the hearing.The Biden administration’s solicitor general, Elizabeth Prelogar, told the justices that Tennessee’s law discriminated on the basis of sex and should be analysed under a “heightened scrutiny” standard—the rigorous evaluation that courts must apply when the government treats women and men differently. But Matthew Rice, Tennessee’s solicitor general, said the state’s legislation was designed to “protect minors from risky, unproven medical interventions” and bars treatments “for some medical purposes” but not others. “That is not sex discrimination”, he said, so heightened scrutiny does not apply.Ordinarily, conservative justices disdain looking abroad for legal inspiration. But Justice Alito, in particular, noted increasing scepticism toward paediatric transitioning in Finland, Sweden and the United Kingdom. He pointed to the Cass Review (a report on the ’s services for children diagnosed with gender dysphoria led by Hilary Cass, a retired paediatrician), which Justice Alito said found no “high-quality evidence” showing that the treatments’ benefits outweigh the risks.Ms Prelogar acknowledged the “debate happening here and abroad” about such treatments and “how to identify the adolescents for whom it would be helpful” but noted that none of these countries—in contrast to Tennessee—has “outright banned this care”. And she offered an example of an approach that would not offend the constitution. West Virginia, she said, has adopted “a set of guardrails that are far more precisely tailored” to address concerns around care, including mental health screening, needing two doctors to diagnose gender dysphoria and permitting treatment only when “medically necessary to guard against the risk of self-harm”.But several justices resisted sending back to the lower court with instructions to analyse it anew with heightened scrutiny. This path would require “determinations by lay judges regarding complicated medical issues”, Justice Alito said. Chief Justice Roberts, who joined the majority in , worried that judges may not be suited to conduct this scrutiny, as they would be picking sides in the face of “medical nuances”. He told Chase Strangio, the lawyer representing the Tennessee children (and the first openly transgender person to argue at the Supreme Court), that trans healthcare is an area “where we are extraordinarily bereft of expertise”.The most neutral-sounding jurist during the hearing was Justice Barrett. She inquired about several alternative pathways should the plaintiffs fail—as they seem destined to do—in . Parental rights to control their children’s medical care, she noted, is a possible approach for a future challenge.Whether or not healthcare bans return to the court, prospects are good for more quandaries about public policies toward transgender Americans to reach the justices—and soon. About half the states bar athletes from competing with those of the opposite sex, and Idaho and West Virginia’s bans have been stymied by lower courts. Both states are petitioning the Supreme Court to step in.
