Supreme Court wades into thorny fight over health care for trans teens

WASHINGTON (CN) — The Supreme Court will resume its role as culture war arbiter this week with a review of Tennessee’s ban on gender-affirming care for transgender minors.

Transgender rights have become a political lightning rod, and increasingly so following the 2024 election, whether that be through Democrats’ election loss postmortem, congressional bathroom policies or plans for the incoming Trump administration.

On Wednesday, the Supreme Court will consider what legal rights transgender minors are due.

Dr. Susan Lacy, a Memphis physician and a plaintiff in the suit against Tennessee, said the justices will have to sort through the political discord that has created misinformation and misunderstanding over transgender health care.

“It’s more in the political sphere in that people have this personal belief system that they then are imposing on other people without really having a great understanding of what that might mean,” Lacy said.

Lacy has personal experience with what Tennessee’s ban means for transgender minors, whom she treats. She said the law has forced some of her patients to flee the state, and others plan to taper off or ration medication that was once legal.

“The thing that was sort of heartbreaking is a lot of these kids, they’re focused on what you are when you’re 16 or 17, which is your own life, your own self,” Lacy said.

Like the three transgender children in the challenge to Tennessee’s ban, Lacy’s patients have been frustrated by Tennessee’s ban after overcoming the high hurdles to access this care.

“They had such a bewilderment, is probably the best way to describe it, of: ‘Why would somebody take this away from me when I’m feeling so much better than I used to feel? My parents are on board. Why am I not being allowed to have this?’” Lacy said.

Lacy’s gynecological work led her to begin providing transgender health care at a local nonprofit. When she opened her practice in 2019, she said she wanted to put transgender care at the forefront of her mission.

Then Tennessee criminalized her pursuit. In 2023, lawmakers adopted Senate Bill 1, prohibiting health care providers from prescribing, administering or dispensing any puberty blocker or hormone aimed at helping a minor identify with a gender that is inconsistent with the minor’s sex.

Lacy, the three transgender minors and their families claim that SB1 is unconstitutional. The Biden administration intervened in their suit, viewing the case as a matter of public importance.

Tennessee is one of 26 states with a gender-affirming care ban. The practice has divided the country into a checkerboard of rights for transgender minors.

Paul Smith, a professor at Georgetown University who represented the plaintiffs in the 2003 landmark gay rights case Lawrence v. Texas , said the map resembles abortion access across the country after the court overturned Roe v. Wade .

“This case really is quite monumentally important for the future ability of people to live successfully the lives they want to live,” Smith said. “So I think it really is a trying moment altogether for transgender people in this country.”

The justices agreed to decide only whether the ban violates the equal protection clause, but their ruling could ripple into other spheres.

“If the court upholds a law that bars treatment for gender transition but not otherwise comparable forms of treatments for other conditions," Smith said, “then the way would be open for other forms of governmental discrimination.”

The aftershock could also hit fights over bodily autonomy, like efforts to ban gender transitioning for adults.

“It would have a pretty serious set of consequences,” Smith said. “There’s a longstanding notion that adults get to control their own bodies in a way that minors don’t, but that gets you right back into arguments about abortion, which are difficult ones right now given where the court has gone on abortion itself.”

U.S. and international medical groups broadly support hormone therapies and other treatments for transgender kids, but Tennessee says it’s the state’s prerogative to protect minors from gender-affirming care, and claims that gender dysphoria treatments are risky. The state undercuts scientific evidence cited by the medical associations, arguing that politics influenced medical consensus on gender-affirming treatments.

The Biden administration said Tennessee’s ban discriminates based on sex. “Put simply, an adolescent assigned female at birth cannot receive puberty blockers or testosterone to live as a male, but an adolescent assigned male at birth can,” U.S. Solicitor General Elizabeth Prelogar wrote in the federal government’s brief.

Trans treatments and equal protection

Some treatments for transgender care are already used regularly for other patients.

Lacy said she uses many of the same medications in her gynecological work when treating transgender patients. “As a gynecologist, another huge part of my practice is hormone management for menopausal, perimenopausal women, cis women and I also have a few cis men,” she said.

She worries about the ban’s chilling effects on doctors and transgender kids, including restricting conversations about gender-affirming care for struggling teens. As a parent of a transgender child, Lacy said those conversations are an essential part of the care she offers.

“The parents come in and they’re trying to do their fact-finding and support their children, but they have a lot of stress and anxiety and concerns, but those conversations are not happening anymore in this state because they can’t,” Lacy said.

Although equal protection is the issue on the docket when court hears arguments in U.S. v. Skrmetti on Dec. 4., the justices’ review could limit the court’s 2020 ruling in Bostock v. Clayton County . Writing for the 6-3 majority, Justice Neil Gorsuch, a Donald Trump appointee, ruled that Title VII of the Civil Rights Act protects against discrimination based on sexuality or gender identity.

The Biden administration says Bostock recognized transgender people as a protected group.

“There is no way to determine whether these treatments must be withheld from any particular minor ‘without considering [the minor’s] sex,’” Prelogar wrote.

Tennessee wants to cabin Bostock to Title VII. The state claims that the “but-for" test, when it comes to sex, defied the justices’ equal protection precedents and rolled back women’s rights.

“If the government’s theory holds, men who identify as women could claim constitutionally based access to women’s bathrooms, women’s locker rooms, and women’s sports,” Tennessee wrote. “Accepting that theory would perversely erode women’s rights and jeopardize landmark statutes protecting women’s equal access to schools, winners’ podiums, and beyond.”

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