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“The Supreme Court [last] Wednesday upheld Tennessee’s ban on puberty blockers and hormone therapy for transgender teenagers. By a vote of 6-3, the justices rejected an argument by three transgender teens (along with their parents and a Memphis doctor) that the law violates their constitutional right to equal protection and should be scrutinized using a more stringent standard than the one used by a federal appeals court in Cincinnati…
“Tennessee’s legislature passed the law, known as SB1, in 2023. SB1 emphasizes that the state has a ‘legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty.’ It prohibits (as relevant here) the use of puberty blockers and hormone therapy for transgender teens while allowing the use of the same treatments for other purposes…
“[Chief Justice John] Roberts and the majority agreed with the [6th Circuit] court of appeals that the Tennessee law is not subject to heightened scrutiny, because it does not draw classifications based on sex. Instead, Roberts explained, the law ‘prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor’s sex.’” SCOTUSblog
The left criticizes the ruling, arguing that the law unconstitutionally discriminates based on sex.
“Tennessee did not hide the ball in targeting transgender children on the basis of sex; the Legislature expressly stated that its goal was to make minors ‘appreciate their sex’ by forcing them to live in accordance with it. Second, the law restricts access to specific medical care based on the sex assigned to a patient at birth…
“A cisgender boy seeking to enhance his male appearance is free to receive testosterone. A transgender boy seeking to enhance his male appearance cannot. Both seek gender-affirming care; only one can access it. The lone distinction is the sex on the child’s birth certificate—a quintessential example of sex discrimination…
“Surely a regulation that instructs girls to be girls (and boys to be boys) by compelling both genders to ‘appreciate’ their sex classifies children based on their sex. The law is impossible to enforce without taking sex into account.”
Mark Joseph Stern, Slate
“You may also recognize the arguments in Skrmetti as the same argument the Court rejected in Loving v. Virginia, the 1967 case that struck down bans on interracial marriage. Then, Virginia insisted there was no equal protection problem because no person could marry outside their race and any person could marry within their race, and the legislature should be free to respond to ‘scientific’ debates about the harms of interracial marriage…
“Now, Roberts says there is no equal protection problem because ‘no minor may be administered puberty blockers or hormones to treat gender dysphoria, gender identity disorder, or gender incongruence.’ Further, he says, ‘minors of any sex may be administered puberty blockers or hormones for other purposes,’ and ‘scientific uncertainty’ underscores ‘the need for legislative flexibility.’… The rehabilitation of these rejected arguments will have grave implications.”
Madiba K. Dennie, Balls and Strikes
“Many opponents and skeptics of trans youth medicine say we need more research, and they’re right—except then they push laws banning trans youth health care, which makes research impossible. ‘We need more research’ has become a conservative pretext for simply shutting down health care access for trans young people… It’s nearly impossible to learn more about a treatment if we ban it wholesale, because you can’t study something you can’t do…
“We don’t have as much high-quality research into trans youth health care as just about anyone would like. What we have suggests that the available treatments are generally safe but do have some serious potential side effects, and that rates of regret and detransition do exist but are very low… Bans are the worst way to address concerns. This care, and research into it, needs more resources, not more fear.”
Jill Filipovic, Slate
The right supports the ruling, arguing that the law does not discriminate based on sex.
The right supports the ruling, arguing that the law does not discriminate based on sex.
“The esoteric theory of sex discrimination advanced against the Tennessee law was that it discriminated by allowing the same hormones to be used for entirely different treatments, such as ‘to treat a minor’s congenital defect, precocious (or early) puberty, disease, or physical injury.’ But as Roberts noted, this theory ignored ‘a key aspect of any medical treatment: the underlying medical concern the treatment is intended to address.’…
“Under the dissent’s contorted standard, any regulation of medicine is a constitutionally suspect sex classification if the regulation or the medical practice takes any account of sex at all… But as the majority noted, medical practice has never been blind to sex differences, and the Food and Drug Administration sometimes approves treatments in areas such as breast cancer and HIV only for use with one sex…
“Only yesterday, feminists would have cheered the Court’s observation that the FDA ‘recognizes that research has shown that biological differences between men and women (differences due to sex chromosome or sex hormones) may contribute to variations seen in the safety and efficacy of drugs, biologics, and medical devices.’… The majority got it right this time because it didn’t need to do more than recognize reality.”
The Editors, National Review
“Giving female hormones to a female 13-year-old with a specific medical problem isn’t the same as giving female hormones to a male 13-year-old who has gender dysphoria. The Chief Justice notes that the latter treatment is the subject of ‘fierce scientific and policy debates,’ citing the Cass Review, a heralded official study last year in England that found ‘remarkably weak’ evidence for giving minors puberty blockers and cross-gender hormones.’”
Editorial Board, Wall Street Journal
“By the time I was 14, I’d been raped, became pregnant, and suffered a miscarriage. By 16, I had been diagnosed with anorexia, anxiety and obsessive-compulsive disorder and was hospitalized for depression and self-harm. I tried to kill myself several times…
“A medical resident talked with me — once — and suddenly decided, despite all my other documented physical and mental health struggles, that my real trouble was a ‘gender-identity crisis.’… I still live with that damage and the life-altering consequences of the unnecessary drugs and surgery I was given. The testosterone changed me…
“My endocrine system doesn’t function without external hormones now. And I can’t regulate my hormones on my own. I won’t ever be able to nurse my own children because they removed my healthy breasts… Growing international evidence is revealing that these drugs and surgeries don’t help, and countries across Europe are abandoning and banning these practices.”
Prisha Mosley, Fox News
“After the Supreme Court legalized it nationwide in 2015, same sex marriage kept getting more popular; by 2021, a majority of Republicans supported it. A long, open debate and an incremental approach to litigation had built broad cultural support for marriage equality. With trans rights, the pattern is the opposite: a series of rapid victories and an even more rapid decline in public support…
“Backlash is a risk with any social change, of course. But it’s the ACLU’s job to understand that and plan for the contingency. In this case, the organization didn’t do that. And I wonder if it could have — if the people making the decisions had understood just how fragile the apparent liberal consensus was, and how many people were raising questions in dark corners where they couldn’t be overheard.”
Megan McArdle, Washington Post
