Transgender-Care Bans for Minors Draw Supreme Court Review (1)

The US Supreme Court agreed to decide whether states can outlaw gender-affirming care for minors, taking up what has become a politically polarizing issue across the country.

The justices will review a federal appeals court decision that upheld Tennessee and Kentucky laws in the face of constitutional challenges by the Biden administration and transgender youths. The court will hear the case in the nine-month term that starts in October, focusing on the Tennessee law.

About two dozen states now have laws restricting access to therapies, all enacted since 2021. Tennessee bans puberty blockers, hormone therapy and surgery for those under 18.

Opponents say the laws fly in the face of the widely accepted clinical guidelines for treating youths with gender dysphoria, the condition characterized by distress over the incongruence between one’s gender identity and birth-assigned sex. Supporters say the measures protect vulnerable children from risky and dangerous medical procedures.

The decision to take up the case follows the Supreme Court’s April 15 decision to let Idaho broadly enforce its ban while a case there goes forward.

In arguing against the Tennessee law, the Biden administration said the measure violates the Constitution’s equal protection clause by making treatments illegal when used for gender transition but not when used for other purposes.

“By their terms, operation, and design, those laws classify based on sex and transgender status,” US Solicitor General Elizabeth Prelogar argued in court papers. “And they inflict profound harms on transgender adolescents and their families by denying medical treatments that the affected adolescents, their parents, and their doctors have all concluded are appropriate and necessary to treat a serious medical condition.”

Tennessee Attorney General Jonathan Skrmetti says the state’s General Assembly enacted the law last year amid a sharp rise in the number of diagnoses of gender dysphoria among minors. Skrmetti, who urged the Supreme Court not to intervene, says states can make distinctions on the basis of age and medical condition without running afoul of the equal protection clause.

“Tennessee, like many other states, acted to ensure that minors do not receive these treatments until they can fully understand the lifelong consequences or until the science is developed to the point that Tennessee might take a different view of their efficacy,” Skrmetti argued.

Although the court agreed to hear the Biden administration’s appeal, it declined to take up broader arguments being pressed against the Tennessee law by three transgender youths and their families.

The group includes Samantha and Brian Williams, whose 15-year-old daughter said in a court statement that she had felt like she was “trapped” and “drowning” in her body before beginning treatments. The girl, represented by the American Civil Liberties Union, is known in court papers only as “L.W.”

“We have a confident, happy daughter now, who is free to be herself and she is thriving,” Samantha Williams said in a statement on the ACLU’s website.

The high court also declined to act Monday on a challenge to the Kentucky law pressed by seven transgender minors and their families.

The Cincinnati-based 6th US Circuit Court of Appeals upheld the two laws in a single 2-1 decision. Writing for that court, Chief Judge Jeffrey Sutton said the case involved “a relatively new diagnosis” with rapidly changing approaches to care and uncertain long-term consequences.

“That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges,” Sutton wrote.

Lower courts around the country are divided on the constitutionality of the laws.

The cases are United States v. Skrmetti, 23-477.

(Updates with details on case starting in third paragraph.)

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story:
Elizabeth Wasserman at ewasserman2@bloomberg.net

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