WASHINGTON D.C. – Yesterday, the U.S. Supreme Court heard oral arguments in United States v. Skrmetti regarding whether a Tennessee law that protects children from harmful puberty blockers, hormones, and irreversible mutilating surgeries is constitutional. The Justices focused their questions on the Equal Protection Clause of the 14th Amendment and whether blocking access to these interventions is sex-based discrimination. Several Justices also noted a lack of international medical consensus on gender procedures and displayed skepticism that the Constitution must take a side on unsettled medical issues.
The Supreme Court is expected to make a decision no later than the end of June 2025. The case could have vast implications for the 25 other states with similar laws protecting children.
The Biden-Harris administration, along with three families with gender-confused children, take issue with the Sixth Circuit Court of Appeals ruling that found that banning “experimental” interventions for both sexes was not sex discrimination and that protecting children from these drugs and procedures is a legitimate state interest. Tennessee’s “Save Adolescents from Experimentation (SAFE) Act,” also known as SB 1, was enacted in 2023 and prohibits medical professionals from administering these procedures on any minor and allows children injured during violations of this law, or their parents, to sue those responsible. However, the law allows puberty blockers to be used to treat early puberty and allows hormone therapy to be used when puberty is delayed, but does not permit them for experimental gender interventions on children.
The Biden-Harris administration and the families contend that Tennessee’s ban on these medical interventions explicitly discriminates based on sex and must be evaluated under heightened scrutiny, a more rigorous level of scrutiny than the Sixth Circuit applied.
U.S. Solicitor General Elizabeth Prelogar opened the more than two-hour argument on behalf of the Biden-Harris administration stating that the law violates the Constitution’s equal protection guarantee.
“SB 1 categorically bans treatment when, and only when, its inconsistent with a patient’s birth sex,” stated Prelogar. “SB 1 regulates by drawing sex-based lines and declares those lines are designed to encourage minors to appreciate their sex. The law restricts medical care only when provided to induce physical effects inconsistent with birth sex.”
“That’s wrong,” stated Prelogar.
ACLU attorney Chase Strangio, a woman living as a man, and the first known trans-gender person to present before the U.S. Supreme Court, argued on behalf of the three Tennessee families and their medical providers. Strangio argued that SB 1 takes away treatment that “alleviates suffering” of gender-confused adolescents and that the law fails under any standard of review. Strangio advised the High Court to remand the case back to the Sixth Circuit to evaluate under a heightened standard of scrutiny.
However, Justice Samuel Alito was “distressed” about the lack of medical consensus on these complicated gender interventions. He cited the Cass Report that says there is no evidence that these procedures reduce suicide. He then expressed caution about whether “transgender” status should be treated as a “quasi-suspect class.”
“Is transgender status immutable?” asked Justice Alito. While Strangio avoided a direct answer, Strangio asserted that having a birth sex misaligned with one’s gender identity is a distinguishing characteristic and that SB 1 should “stop being a barrier” to these procedures.
Justice Brett Kavanaugh noted that whichever level of scrutiny the High Court uses in this case, it has to look at Tennessee’s health and safety justification for enacting the law. Justice Kavanaugh noted if these treatments are barred then some will suffer untreated gender confusion, and while if the treatments are allowed then others will suffer with regret due to the permanent effects. Justice Kavanaugh struggled with the question about how the High Court should go about choosing which group to favor when the democratic process is dealing with the issue.
“The Constitution is neutral and doesn’t take sides on how to resolve that medical and policy debate,” noted Justice Kavanaugh.
Then Tennessee Solicitor General J. Matthew Rice defended Tennessee’s SAFE Act by arguing the law does not draw a sex-based line but a line on risky medical practice.
“Tennessee lawmakers enacted SB 1 to protect minors from risky, unproven medical interventions,” stated Rice. “The only way [the challengers] can point to a sex-based line is to equate fundamentally different medical treatments. Giving testosterone to a boy is not the same treatment as giving it to a girl who has psychological distress associated with her body…[These drugs] are being used for fundamentally different purposes, they have different effects on the body, and once you recognize medical reality then there is no argument that our law differentiates between treatments for males and females.”
Rice stressed that the law is a “purpose-based line” that solely hinges on the reason the drugs are being used rather than the sex of the patient, and that the Sixth Circuit had already used the appropriate level of scrutiny in the case.
Both Justice Sonia Sotomayor and Justice Ketanji Brown Jackson seemed to insist the law’s language draws a line and prevents treatment based on person’s birth sex. However, Rice concluded his argument that drugs cannot be used in Tennessee without a “legitimate, viable medical purpose.”
“Everything depends on the reason you are using [these procedures] for,” stated Rice. “All we have done is make clear that these treatments, which are irreversible, have significant effects on minors and often leave them with bodies that are infertile and permanently damaged. You have to wait until you turn 18 to receive those types of treatments.”
Justice Gorsuch did not ask any questions. It appears the High Court is split on this case with at least three against the law (Kagan, Sotomayor, and Jackson), four in favor of the law (Roberts, Thomas, Alito, and Kavanaugh), and two unknown (Barrett who may side against the law, and Gorsuch who asked no questions).
Liberty Counsel filed an amicus brief in the case stating that the High Court’s decision could “reverberate beyond this case” affecting how challenges to laws involving talk therapy and counseling are decided. Ultimately, Liberty Counsel asks the High Court to make a clear distinction between talk therapy and invasive medical interventions because different levels of judicial scrutiny should apply to each. Liberty Counsel recommended that the High Court decide this case by “making a clear distinction between talk therapy—which is pure speech protected by the First Amendment—and invasive medical interventions involving dangerous drugs and experimental surgery—which is most often appropriately categorized as conduct that the state may regulate.”
At least 26 states now have laws banning these experimental and often irreversible procedures on minors. The Biden-Harris administration joined the case in 2023 after several sets of parents sued Tennessee to obtain the right to mutilate their children. Federal law allows the government to intervene when allegations of equal protection are involved and if the U.S. Attorney General certifies the case is of general public importance.
Liberty Counsel Founder and Chairman Mat Staver said, “There is no fundamental right to subject children to dangerous drugs and irreversible, experimental surgeries. Banning experimental gender interventions on children for both sexes is not an Equal Protection issue, it is a child safety issue. Now, the U.S. Supreme Court has the chance to make the distinction between conduct and speech so that the free speech rights of licensed counselors to help a client who does not want to be chained to unwanted desires, behaviors, or confusion are protected.”