[UPDATE: Read the Law Dork report on Wednesday’s arguments here.]
At 10 a.m. Wednesday, the U.S. Supreme Court is set to hear arguments over whether Tennessee’s 2023 ban on gender-affirming medical care for transgender minors violates the U.S. Constitution’s guarantee of equal protection of the laws.
Many people are — understandably — very skeptical of the prospect of asking this Supreme Court to protect trans people. It will, almost certainly, be a difficult day.
And yet, if there was a time to make this argument, it is now.
This and other anti-trans medical care laws have been allowed to go into effect by three different appeals courts. The laws have multiplied — with 24 similar bans in place today — and litigation is pending in other circuits as well, so neither the issue nor the legal questions are going away. And, of course, Donald Trump is retaking the presidency in 48 days, and his administration is expected to be far less sympathetic — when not outwardly antagonistic — to transgender people’s interests than President Joe Biden has been.
This also is nearly as good of a case as trans people and their allies could have gotten in front of the justices: Tennessee has made a fairly weak argument, with a shoddy appellate opinion from the U.S. Court of Appeals for the Sixth Circuit behind it, in defense of an explicitly anti-trans law passed by the Tennessee legislature.
Finally, the individual people suing to block the law are not alone. The United States is arguing against the constitutionality of the law and will be represented in front of the justices on Wednesday by Solicitor General Elizabeth Prelogar, regarded as one of the best solicitors general in recent decades. The trans youth, their parents, and a medical provider in the case, meanwhile, will be represented by Chase Strangio — the ACLU lawyer who is now the co-director of the organization’s LGBTQ and HIV Project, who has been arguing these cases since the first medical ban was challenged in the first court in 2021, and who is himself transgender.
When all of this comes together, Wednesday’s arguments will provide the best opportunity in this moment to put the brakes on the anti-trans lawmaking of the past few years in a way that could affirm the value of all people.
But, even given all of that, Wednesday will still likely be an uphill battle to challenge the law and its constitutionality in light of this court.
I’ve already written and spoken about how we got here.
So, now: What will be happening on Wednesday?
What will I be watching for in court, and what should you be watching or listening for? (If you’re not attending the arguments in person, you’ll be able to listen to a livestream at the Supreme Court’s website or via C-SPAN.)
Although the court has set an hour for these arguments, they almost certainly will go over, as much as double that, and Chief Justice John Roberts is likely to focus on allowing questioning so long as it is going somewhere and with an eye on making sure both sides have the opportunity for equal time.
As covered at Law Dork, the law passed as S.B. 1 in February 2023.
In justifying the need for the legislation, the introductory portion of the law states in part:
This state has a legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty. This state has a legitimate, substantial, and compelling interest in protecting the integrity of the medical profession, including by prohibiting medical procedures that are harmful, unethical, immoral, experimental, or unsupported by high-quality or long-term studies, or that might encourage minors to become disdainful of their sex.
The law defines “medical procedure,” for purposes of the bill as follows:
As to the actual ban, the law states:
And yet, the law goes on to explicitly allow for those same “medical procedures” in other minors:
The private plaintiffs sued, the United States intervened in the case, and they got a preliminary injunction blocking the puberty blocker and hormone therapy bans from going into effect. Later, the Sixth Circuit put that on hold — allowing the law to go into effect — while the state’s appeal was considered before reversing the injunction in September 2023. That, in turn, led to the Tennessee private plaintiffs, along with the Kentucky plaintiffs and the United States, to seek Supreme Court review.
The Supreme Court granted review of the United States’s petition, leading to briefing from the parties and outside amici curiae — friends of the court — bringing us to Wednesday’s arguments.
First up shortly after 10 a.m. will be Prelogar, who is splitting her time with Strangio. Prelogar will give a brief introductory argument, then will start taking questions from the justices. This can become a back-and-forth period between the justices themselves, as they can follow — or, at times, interrupt — one another throughout this period. After about 10 minutes, Roberts will start the seriatim questioning — a period where, starting with Roberts, the court goes one at a time from most senior to newest justice, allowing each justice to ask any remaining questions. One Justice Ketanji Brown Jackson — the newest justice — goes, Prelogar will take a seat and Strangio will get up. Strangio will then repeat that, giving an opening and taking questions for 15 minutes and then going through the seriatim questioning.
Then, Tennessee Solicitor General Matthew Rice — a former clerk for Justice Clarence Thomas — will get up to defend the law. Since he will be the only lawyer representing that side on Wednesday, he will have 30 minutes between his introduction and the initial questioning. After that, he will also go through a round of the seriatim questioning.
Finally, Prelogar will have a chance — generally about 3 minutes — to make a rebuttal. Generally, Prelogar will use this time to correct anything that she believes Rice got wrong, counter any major arguments that seemed to catch traction with the justices, and tie the case and issues together to urge the court to side with the United States.
Ultimately, an earlier decision from the Supreme Court when taking the case simplified Wednesday’s arguments. Although the private plaintiffs in both the Tennessee case and Kentucky cases that had been before the Sixth Circuit made three primary arguments based on two constitutional provisions, the Equal Protection Clause and the Due Process Clause, the Supreme Court only granted review of the United States’s petition, which only raised the equal protection question.
So, the main argument Wednesday is whether the law — specifically, the state’s categorical ban on puberty blockers or hormone therapy for treatment of gender dysphoria in all transgender minors but not for any other purpose — violates the Equal Protection Clause.
From there, though, it gets a little more complicated, with multiple arguments that will operate on multiple levels Wednesday.
First, the challengers — the United States and the private plaintiffs — argue that the law violates equal protection for two independent reasons: It classifies based on sex, which would mean the law is subject to heightened scrutiny, as well as based on transgender status, which they argue should be subjected to heightened scrutiny.
If the law is subject to heightened scrutiny, both argue, the most obvious next move would be to remand the case — send the case back to the Sixth Circuit, since it rejected heightened scrutiny on both grounds, to allow the court to re-examine the case under the proper standard. If the Supreme Court wants to resolve the case itself, though, both argue it fails heightened scrutiny — which would require the state to prove that the law advances an “important governmental objective” and that the classifications are “substantially related to the achievement” of that objective.
Here, no one argues that Tennessee advances an “important governmental objective” — protecting the health and safety of adolescents. The problem, the challengers argue and lower courts have found when reviewing the evidence, is that the bans are not “substantially related” to advancing that aim.
Tennessee argues in response that the law banning trans minors from receiving puberty blockers or hormones to “enabl[e]” them “to identify with, or live as, a purported identity inconsistent with the minor’s sex” is not a sex classification and that the law “does not classify based on transgender status.” Instead, the state argues repeatedly that this is merely setting “age” and “use” limits on “medical procedures.” Regardless, they argue in a few pages at the end of their brief, the law should pass heightened scrutiny even if the court applies it.
Finally, the private plaintiffs argue the opposite — that the law should fail rational basis review even if the court were to disagree that heightened scrutiny applies. The United States did not make that argument.
Evidence. To the extent people are arguing over studies and quality of evidence, the U.S. and private plaintiffs will be arguing that the district court’s findings should only be disturbed for “clear error” and that, at most, the court should send the case back so the district court can take a closer look at evidence Tennessee and amicus briefs are presenting at the Supreme Court that was not in the record at the district court. Beyond that, they do also argue that Tennessee is substantively wrong, ignoring the benefits and overstating the risks. The also argue that the ban is overinclusive — by barring all of the covered medical treatment for all trans minors — and underinclusive — by not barring that treatment when used for other purposes or other treatment with similar risks. Tennessee argues in response that this is “lawmakers’ resolution of a genuine medical debate,” stressing the discretion state’s have to regulating the medical profession.
Bostock. One of the biggest legal debates is likely to come down to two justices — Roberts and Justice Neil Gorsuch — and who they think has a better understanding of the role of 2020’s Supreme Court decision in Bostock v. Clayton County in this case. In that case, Gorsuch wrote for a 6-3 court — in which he and Roberts joined the then-four Democratic appointees — that sexual orientation discrimination and gender identity discrimination are types of sex discrimination covered by the sex discrimination ban in Title VII of the Civil Rights Act of 1964. Essentially, the government and private plaintiffs argue that the reasoning of Bostock as to how one defines sex-based classifications is instructive to defining sex classification under the Equal Protection Clause of the Fourteenth Amendment. Tennessee argues, though, that the specifics of Bostock, the text of Title VII, and the rules for considering Title VII claims necessitate a Title VII-only understanding of even the reasoning of that ruling.
Dobbs and Geduldig. When the Supreme Court overturned Roe v. Wade, Justice Sam Alito included a dismissive paragraph regarding the claim — not by the parties to the lawsuit, but by “some of respondents’ amici“ — that a constitutional right to an abortion could be found in the Equal Protection Clause. That is “squarely foreclosed by our precedents,” Alito wrote. In a sentence now relied upon by the Sixth Circuit who would uphold anti-trans laws, he continued, “The regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a ‘mere pretex[t] designed to effect an invidious discrimination against members of one sex or the other,’” citing a 1972 decision upholding California’s decision to exclude “normal pregnancy” from coverage through its disability insurance fund. In response, the private plaintiffs argue, “That logic fails. SB1 is not a restriction on a particular medical treatment that happens to be limited to one sex or the other. Rather, SB1 uses an individual’s sex assigned at birth to define which treatments are prohibited and which treatments are permitted.”
There certainly will be more, and I’ll have a full report after arguments, but that should help you get through Wednesday’s high-profile arguments.
