It was a small moment during Wednesday’s oral argument in United States v. Skrmetti when Chief Justice John Roberts called Chase Strangio, an American Civil Liberties Union lawyer, to argue before the justices. Strangio, who is the first openly transgender lawyer to appear before the court, uses masculine pronouns. So too did the chief justice when he summoned Strangio to the podium with two words: “Mr. Strangio?”
That fleeting moment of politeness may represent the high-water mark for transgender rights movement in the federal courts for the foreseeable future. The Supreme Court signaled on Wednesday that it would almost certainly uphold a Tennessee law that bans gender-affirming treatment for minors.
It was always unlikely that the court’s six-justice conservative majority would deliver a sweeping ruling in favor of the plaintiffs, which include transgender children, their parents, and the Department of Justice. But the justices’ questions suggested that their minds run much further afield than the case before them, and are likely unwilling to grant any constitutional legitimacy to the transgender-rights movement whatsoever.
The case comes from a legal challenge to Tennessee Senate Bill 1. The 2023 law generally bans medical professionals in that state from approving prescriptions or surgeries that “[enable] a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or “[treat] purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”
Transgender youth often experience significant distress at the gap between their physical appearance and their gender identity, which can lead to high rates of substance abuse, self-harm, and suicidal ideation. The American Medical Association, the American Academy of Pediatrics, and other top medical groups have supported gender-affirming treatments like puberty blockers and hormone therapies to reduce those risks.
Justice Samuel Alito, the court’s leading cultural conservative, disputed that medical consensus. He pointed to recent regulatory changes in the United Kingdom and some Scandinavian countries that limited access to treatments for minors, as well as an official report by a prominent British doctor that concluded the evidence for treatments like puberty blockers and hormone therapies was “remarkably weak.” (Others have disputed those conclusions.)
At one point, he questioned whether the treatments would reduce the risk of suicide among transgender youth. “A lot of categorical statements have been made this morning in argument and in the briefs about medical questions that seem to me to be hotly disputed, and that’s a bit distressing,” Alito said. “One of them has to do with the risk of suicide. Do you maintain that the procedures and medications in question reduce the risk of suicide?”
“I do, Justice Alito, maintain that the medications in question reduce the risk of depression, anxiety, and suicidality, which are all indicators of potential suicide,” Strangio replied. “Do you think that’s clearly established? Do you think there’s reason for disagreement about that?” Alito continued. When Alito pointed to the British report’s finding that there was “no evidence that gender-affirmative treatments reduce suicide,” Strangio noted that studies had found a reduction in suicidal ideation, and that completed suicides weren’t measured by some of the report’s cited studies.
Justice Sonia Sotomayor pushed back on those assertions in her own questions. “The evidence is very clear that there are some children who need this treatment,” she noted. While she appeared to sympathize with the plaintiffs, as did Justices Elena Kagan and Ketanji Brown Jackson, the court’s three liberals would need two of their conservative colleagues to agree with them to form a majority. No such votes appeared forthcoming.
The plaintiffs in Skrmetti challenged one of the many bans on gender-affirming care passed recently by state lawmakers. A coalition that included transgender children, their parents, and a Tennessee physician sued the state to block enforcement of the Tennessee law last year. They argued, among other things, that S.B. 1 amounted to sex-based discrimination because it denied transgender youth access to certain medical treatments, like puberty blockers and hormone therapies, based on their assigned sex at birth.
That argument echoed one made in the landmark case Bostock v. Clayton County two years ago. In that 6-3 decision, the court held that the Title VII of the Civil Rights Act of 1964 protects gay and transgender Americans from workplace discrimination. Justice Neil Gorsuch, writing for the court, concluded that discrimination on the basis of sexual orientation or gender identity fell under the law’s ban on discrimination “on the basis of sex.”
Solicitor General Elizabeth Prelogar, who argued on behalf of the Biden administration, argued that the Tennessee law was similarly problematic. “SB1 regulates by drawing sex-based lines and declares that those lines are designed to encourage minors to appreciate their sex,” she told the justices in her opening comments. “The law restricts medical care only when provided to induce physical effects inconsistent with birth sex. Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can.”
The S.B. 1 challengers also argued that transgender Americans are eligible for heightened scrutiny under the Fourteenth Amendment’s Equal Protection Clause. The Supreme Court has historically ruled that certain characteristics, such as race, nationality, and religion, as “suspect classifications,” meaning that laws that treat people differently based on those traits are viewed with deep skepticism by the courts. Laws that discriminate on the basis of sex also receive a lesser form of scrutiny that the justices have occasionally described as “intermediate scrutiny.”
Multiple conservative justices questioned whether being transgender could qualify for heightened skepticism under the court’s precedents. To count as a suspect classification, the justices have previously held that a group must meet certain conditions. Alito questioned at one point whether being transgender is an “immutable characteristic,” which is part of the court’s test, by citing the small number of people who later detransition from it.
Another prong in the court’s test is whether there is a history of legal discrimination against the group in question. Justice Amy Coney Barrett appeared skeptical that transgender Americans could claim as much. “We don’t have a history of de jure discrimination against transgender people, right?” she asked Solicitor General Elizabeth Prelogar, who argued on behalf of the Biden administration.
Prelogar quickly noted that there was a “wealth of evidence” to suggest that transgender people had faced “violence and discrimination” throughout American history. During his portion of the arguments, Strangio also pointed to laws that prohibited crossdressing and bans on military service as evidence of de jure discrimination. Barrett acknowledged those examples but did not seem persuaded by it.
Other conservative justices indicated that they thought that the court’s intervention would be unwarranted. Chief Justice John Roberts argued that the ongoing scientific and medical debate was better left to state and federal lawmakers. “The Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor,” he said at one point.
Justice Brett Kavanaugh echoed that point by arguing that the Constitution was “neutral” on transgender rights, a line he also adopted on abortion rights in the court’s 2022 decision to overturn Roe v. Wade. He also expressed concern about the possibility that the court’s decision would allow transgender student-athletes to participate in women’s sports.
Tennessee Solicitor General Matthew Rice, who represented the state, came under intense questioning from the court’s liberal justices, but sounded confident of victory. He rejected questions from Kavanaugh and Barrett about a parental-rights’ argument to decide their own children’s healthcare by comparing gender-affirming treatments to lobotomies and eugenics, which states retained the power to forbid over parental objections.
The only real mystery left is where Justice Neil Gorsuch stands. Though a reliable member of the court’s conservative wing in most cases, he drew intense criticism from the conservative legal movement for his authorship of Bostock. Gorsuch asked no questions of any lawyer during the two-and-a-half hour session—a not-uncommon practice for him during oral arguments, but a striking one in such a high-profile case. Even if he parts ways with the court’s conservatives, however, it would not be enough.
As I noted in June, the Supreme Court’s approach to this case from the start all but suggested the outcome. The justices chose a case where the Sixth Circuit Court of Appeals had written a narrower ruling that emphasized judicial humility, in contrast to the Molotov cocktails usually lobbed by the neighboring Fifth Circuit. The court also took up only the petition brought by the Justice Department, effectively transmuting the case into a partisan dispute between the Biden administration and Tennessee Republicans.
A rebuke of transgender rights from the high court would join other headwinds for the movement. President-elect Donald Trump’s campaign leaned heavily on anti-transgender ads in the closing weeks of the election, defying previous assumptions by both parties that the issue had little electoral salience. House Republicans have promised to block Delaware Representative-elect Sarah McBride, who is set to be the first transgender member of Congress when she takes her seat next month, from using women’s bathrooms in the Capitol.
But the court’s ruling in Skrmetti, whenever it comes down, could be far more impactful on the lives of transgender people than anything that happens in Congress or the White House. Some of the justices’ questions on Wednesday, especially from Alito and Barrett, cut to whether transgender Americans, as a group, can invoke the Equal Protection Clause when faced with discrimination. A case in which the chief justice respected a transgender lawyer’s preferred pronouns could end with a ruling that holds that transgender Americans, constitutionally speaking, do not exist.
