By Kiley Irizarry 
Photo Credit: Seth Herald of Getty Images
On December 4th, the United States Supreme Court heard oral arguments in a case that will set precedent for states involvement in the administration of gender-affirming care for transgender minors. The Department of Justice (DOJ) is challenging the constitutionality of Tennessee’s Senate Bill 1 from the State’s August 2023 legislative session. The DOJ claims the bill—which would ban gender-affirming care for transgender minors in the state—violates the Equal Protection Clause of the 14th Amendment. The journey from state to Supreme Court has been an extensive one with many prominent voices speaking for and against the bill.
SB 0001 Explained
Senate Bill 1, commonly referred to as SB 0001, was introduced by Tennessee Republican State Senator Jack Johnson in November 2022. SB 0001 prohibits all medical care that acts with “the purpose of enabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex.” According to the bill, this includes hormone treatments such as testosterone and estrogen, sex change surgery, or any medical treatment that changes the physical appearance of the minor. The care listed, although not explicitly stated as gender-affirming care in the bill, is consistent with the World Health Organization’s definition of gender-affirming care for transgender people. The bill includes exceptions for minors born with congenital defects associated with sex. However, it clarifies in the definition of congenital defect that it does not consider “gender dysphoria, gender identity disorder, [or] gender incongruence” to be a part of the definition.
The penalty for administering gender-affirming care to a minor has been set at $25,000 per violation of the bill. There are no penalties for a minor who receives gender-affirming care, however, any minor actively receiving care would have to suspend their treatment within 9 months after the bill takes effect. The bill was set to go into effect on July 1st, 2023, but was unable due to legal challenges.
The Challenge
The bill was immediately condemned by Tennessee’s LGBTQ+ community and civil rights groups such as the ACLU and the Human Rights Campaign. Less than a month after Governor Lee signed the bill, it met its first challenge. The families of three transgender minors and one Memphis-based doctor, with the help of the ACLU, filed a complaint in District Court for the Middle District of Tennessee requesting an emergency relief injunction to stop the law from taking effect. A few days later, the DOJ also filed a complaint in the Middle District of Tennessee challenging the law.
Both filings claim Tennessee’s SB 0001 is a violation of the Equal Protection and Due Process Clauses of the 14th Amendment. The ACLU Case, known in court as L.W. vs Skrmetti, claims SB 0001 unfairly targets transgender youth on the basis of sex, as they claim the exceptions for the same care for non-transgender youths are allowed by SB 0001. The filing also claims SB 0001 “violates the right to parental authority guaranteed by the 14th Amendment.” The filing also argues SB 0001 violates the Affordable Care Act (ACA) as the ACA prohibits the denial of medical care on the basis of sex.
The DOJ makes the same arguments in their challenge of the law. When the case made it to the Supreme Court, the DOJ chose to assert 42 U.S.C. § 2000h–2 and became the main petitioner in the case, taking over for L.W. and her parents.
Tennessee’s Defense
The main argument of Tennessee Attorney General (AG) Jonathan Skrmetti’s brief to the Supreme Court says SB 0001 does not discriminate on the basis of sex. Skrmetti cites a multitude of precedents to defend the state’s actions. The most notable is the citing of Dobbs v. Jackson Women’s Health Organization, which was the 2022 Supreme Court decision overturning Roe v. Wade. It marks one of the first times since the overturning of Roe that Dobbs will be cited in front of the Supreme Court. The Attorney General claims Dobbs established precedent that the “regulation of a medical procedure that only one sex can undergo does not trigger heightened constitutional scrutiny unless the regulation is a mere pretext designed to effect an invidious discrimination against members of one sex or the other.” Essentially, Tennessee argues the Dobbs decision implies that although one sex receives a specific form of medical care, the passage of laws concerning that medical care is not a violation of the Equal Protection Clause. After invoking Dobbs, the Attorney General argues even if one sex does receive gender-affirming care more than the other, it does not matter because SB 0001 treats both sexes the same. Therefore, according to AG Skrmetti, SB 0001 does not violate the Equal Protection Clause.
Dueling Courts
The case’s journey to the Supreme Court has been a turbulent one. The Middle District of Tennessee partially blocked SB 0001, granting the emergency injunction requested by L.W. and the ACLU. District Judge Eli Richardson agreed with L.W. and the ACLU that the law discriminated on sex-based classifications which is a violation of the Equal Protection Clause. The opinion cites the law’s exception for those with congenital defects to receive gender-affirming care as the main evidence the law discriminates against those who wish to change their sex, thus discriminating on sex-based classifications.
Judge Richardson also said the law violates the parent’s rights under the Due Process Clause. He cites precedent which says the Due Process Clause includes parents’ rights to make medical decisions for their children. Since SB 0001 criminalizes one of those medical decisions, it violates the Due Process Clause. However, Judge Richardson did not grant the request to halt the ban on surgeries.
The victory for L.W. did not last long. Tennessee appealed to the Sixth Circuit Court of Appeals where a three-judge panel granted the state a stay of the injunction. The stay reversed the District Court’s decision and allowed SB 0001 to take effect. The Justices’ opinion was based on the fact the suit was not filed as a class action, posing the question “Why would nine residents represent seven million?” For that reason, they did not believe it was right to halt the law for the rest of the citizens of Tennessee. They also did not believe the United States had effectively proved the due process and equal protection violations necessary to sustain the suit. The United States immediately filed an appeal to the Supreme Court. Oral arguments will be heard on December 4th, 2024.
Implications
Including Tennessee, twenty-six states have made laws limiting access to gender-affirming care for minors. Of those twenty-six, seventeen have their laws tied up in the courts, awaiting a decision from the Supreme Court. If the Court’s conservative majority rules in favor of Tennessee, there is fear in the LGBTQ+ community that the ruling could be used as a precedent to extend the ban to adults seeking gender-affirming care. If the court rules against Tennessee, it would be a win for LGBTQ+ rights as it could prevent any law being made which restricts access to gender-affirming care, adding to recent successes in the court for transgender rights.
Despite these successes for parties in favor of transgender rights, recent comments and decisions from current members of the court suggest they may not be receptive to the DOJ’s arguments and instead uphold SB 0001. Justice Thomas has recently called the landmark decision in Obergefell v. Hodges, which protected the right to marriage for gay couples, “demonstrably erroneous.” The current Chief Justice, Justice Roberts, issued the dissent on Obergefell alongside Justice Thomas. Justice Alito authored a separate dissent to Obergefell as well. Although Justice Amy Coney Barrett has yet to rule on a case explicitly regarding LGBTQ+ rights, in a 2016 lecture at the JU Policy Institute, she suggested that extending Title IX to include such protections would be a “strain on the text” in regard to interpretation. Barrett’s past as a board member for Trinity Schools Inc., a private school group that has discriminated against LGBTQ+ parents, may be relevant to her judicial thinking as well.
Justice Gorsuch on the other hand, also a Trump appointee, recently authored a majority opinion in favor of LGBTQ+ rights in the Supreme Court’s most recent LGBTQ+ case regarding workplace discrimination against LGBTQ+ Americans. It’s worth noting that Chief Justice Roberts joined Gosuch’s majority opinion in the case. This August, Justice Gorusch joined Justice Kagan, Justice Sotomayor, and Justice Jackson in dissenting from the court’s decision to uphold an injunction that blocked the Department of Education from expanding the Title IX definition of sex discrimination to include discrimination of sexual orientation and gender identity.
Although these recent occurrences suggest SCOTUS may lean in favor of Tennessee, there is still a possibility the DOJ could win on behalf of the LGBTQ+ community during a time of increasing restrictions on transgender individuals. Whatever the court’s decision, it has the potential to be as impactful as Obgerfell on the LGBTQ+ community when it comes to the rights of transgender people.