Oral arguments suggest Supreme Court will uphold TN ban on trans medicine for minors

The conservative and liberal wings of the Supreme Court laid down the lines regarding Tennessee’s transgender medical ban during oral arguments Wednesday.

Over two hours of debate, justices heard arguments from attorneys representing Tennessee, the Biden administration, and families challenging the law, Supreme Court reporter Amy Howe said.

The Biden administration argued that Tennessee’s law banning transgender care for minors should be overturned in favor of a more liberal law that allows exemptions for suicidal teens.

Liberal Supreme Court Justice Sonia Sotomayor argued that harms done by transgender medical care are acceptable, just like any other approved drug.

The Obama appointee compared sex changes therapy on teens and children to taking aspirin. 

“Every medical treatment has a risk, even taking aspirin,” Sotomayor said, according to Townhall’s Tip Sheet. “There’s always going to be a percentage of the population under any medical treatment that’s going to suffer a harm.”  

However, Tennessee Solicitor General Matthew Rice noted that the stakes are much higher than aspirin side effects for those who transition from one gender to another gender at an early age.   

Evidence shows increasing cases of individuals detransitioning, even as instances of gender dysphoria rise, influenced by social media, peer pressure, and politics. 

“They cannot eliminate the risk of detransitioners,” Rice said during oral arguments. “So, it becomes a pure exercise of weighing benefit versus risk. And the question of how many minors have to have their bodies irreparably harmed for unproven benefits is one that is best left to the legislature.” 

Howe noted that the Supreme Court’s conservative majority could be ready to agree to kick the decision on medical care for transgender children back to the states, in the same way that they scuttled the abortion decision in Roe v. Wade, by saying states should decide.  

“Justice Brett Kavanaugh in particular on Wednesday wondered aloud whether decisions about issues like gender-affirming care for transgender teens might be best left to the democratic process” at the state level, wrote Howe.  

Such a decision would leave the Tennessee law, and others like it passed by state legislatures banning transgender medical care for kids, intact.  

But the moment for high “drama” in the oral arguments, according to The Washington Post, came when Justice Samuel A. Alito Jr. asked Chase Strangio, a transgender attorney who is thought to be the first to appear before the Supreme Court, whether being transgender is an “immutable” characteristic, or impossible to change.  

“Counsel, I don’t think you had a chance to finish answering my question whether transgender status is immutable,” Alito asked Strangio, reported ThePost. “You cited a bunch of other criteria, but is it immutable?” 

Strangio equivocated but was pressed by Alito whether there are some people who are transgender that later switch back to their birth gender. 

“Are there not such people?” asked Alito before declaring, “There are such people.”  

“I agree with that,” admitted Strangio.  

For some, the question of immutability defines what are genuine constitutional rights. 

“Justice Alito asking if trans status is immutable is one of the greatest legal questions I’ve ever seen,” said Mark McEathron at the New Federalist via X. “Civil Rights exist solely based upon immutable human traits. Gender fluidity, by definition, is not immutable. Pure brilliance by Alito today.”  

Biden appointee, Justice Ketanji Brown Jackson, argued that bans on transgender care for kids are the civil rights equivalent of states, such as Virginia, that banned interracial marriage.  

“I wonder if whether Virginia could have gotten away with what they did here [outlawing interracial marriage] by making” the law more like Tennessee’s transgender medical care ban, she asked. 

Riley Gaines, the anti-transgender activist, ridiculed Brown Jackson’s comments, noting that during questioning for her Supreme Court nomination Brown Jackson said she couldn’t define what a woman is because she isn’t “a biologist,” but now is acting as an expert on what makes up race and gender.  

Howe expects the court to issue its decision by summer 2025.