UCLA - University of California - Los Angeles
12/09/2024 | News release | Distributed by Public on 12/09/2024 16:23
Does the Constitution allow states to deny care to transgender youth
On Dec. 4, the U.S. Supreme Court heard oral arguments in U.S. v. Skrmetti, a lawsuit challenging Tennessee's ban on gender-affirming care for minors. In nearly 2 1/2 hours of energetic argument, parties debated what legal standard to apply, whether the state had a persuasive justification for its attempt to ban care, and the very nature and purpose of the Equal Protection Clause of the 14th Amendment of the U.S. Constitution.
Tennessee's law, SB1, prohibits medical practitioners from providing gender-affirming puberty blockers, hormones or surgery for the purposes of "enabling the minor to identify with, or live as, a purported identity different than the minor's sex; or treating purported discomfort or distress from discordance between a minor's sex and asserted identity." The law permits the same treatments for minors whose gender identity matches their sex assigned at birth.
Tennessee's law is one of 24 nationwide that comprehensively ban gender-affirming care for transgender youth. If the Supreme Court sides with Tennessee, it could give the green light to states to deny gender-affirming care to over one-third of the trans youth living in the U.S.
Elana Redfield, federal policy director at the Williams Institute at UCLA School of Law, helps explain the legal arguments made - and the implications for - transgender issues.
Responses have been edited for brevity and clarity.
What standard should the court apply?
U.S. v. Skrmetti is the first time the Supreme Court has directly considered how the Equal Protection Clause applies to gender-affirming care for minors. A central question the justices must decide is the standard of review the court should use - in other words, how skeptically the court should look at the law. In Equal Protection cases, the standard of review is determined by the classification the government party is making. If the classification is one that the laws have found to be "suspect," such as distinctions based on race, the court is likely to treat it with skepticism. If the classification is one that isn't considered suspect, such as age, the court will look more deferentially at the law - and it is likely to be upheld.
Sex classifications have historically received "intermediate" scrutiny, which means that the court will apply some degree of skepticism. However, the state could still justify its actions if they are deemed to be important enough. The crux of the argument this week by the U.S. solicitor general and the original plaintiffs in the case - represented by Chase Strangio, the first openly transgender lawyer to argue before the Supreme Court - was that the law should be treated with skepticism, or heightened scrutiny, because it facially discriminates on sex. In fact, SB1 explicitly uses the word "sex" to categorize people.
Can Tennessee justify the ban?
The argument on Wednesday was centered around the standard of review, but there is another component to equal protection analysis - whether the state can justify its actions. Justices (Samuel) Alito and Brett Kavanaugh spent considerable time discussing allegations raised by Tennessee and several amici about the efficacy and risks of gender-affirming care and the state's interest in regulating those treatments in response.
Although the sources they referenced have been determined by experts to be inaccurately cited, misleading or unreliable, the justices suggested that the state would nonetheless be justified in relying on them. Justice Kavanaugh argued for judicial restraint, postulating that " … we look to the Constitution, and the Constitution doesn't take sides on how to resolve that medical and policy debate."
What's next?
A decision in U.S. v. Skrmetti is expected in June 2025. If the court sides with Tennessee, it could give the green light to states to deny gender-affirming care to over one-third of the trans youth living in the U.S. If the court sides with the petitioners, multiple outcomes are possible, including an outright victory striking down Tennessee's law or the case returning to the lower court for reconsideration. Whatever the decision, the outcome will set a new standard for how transgender issues are viewed under the Constitution.