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Supreme Court to Tackle Transgender Treatments For Minors Next Term

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Summary of arguments in U.S. v. Skrmetti.

The U.S. Supreme Court granted certiorari in a challenge to Tennessee’s 2023 Senate Bill 1, which protects children from irreversible gender-related medical interventions. The law requires minors to cease so-called gender-affirming treatment within nine months of its enactment. It allows the state attorney general to investigate doctors and imposes a $25,000 fine for violations. The bill also permits non-consenting parents to sue medical providers for harm or death resulting from treatments.

The ACLU, supported by the United States, sued to invalidate the Tennessee law. After the Sixth Circuit Court of Appeals, in an opinion by Judge Jeffrey Sutton, lifted the district court’s preliminary injunction of the law, the ACLU appealed to the U.S. Supreme Court.

The Court will consider: (1) whether the Fourteenth Amendment’s Equal Protection Clause bars States from prohibiting sex-transition medical interventions with potential lifelong harm for children; and (2) whether the Due Process Clause grants parents the right to seek cross-sex medical interventions for their children which the State deems too risky.

The ACLU argues the law violates the Equal Protection Clause by discriminating based on sex. Despite applying equally to minors of both genders, transgender attorney Chase Strangio presented a hypothetical to the Sixth Circuit Court illustrating why they believe the law discriminates. They wanted the court to compare a female-born minor, who identifies as male and desires testosterone treatment for specific physical changes and is denied “treatment” under the law, to a male-born minor, who is a “late bloomer” and a male in identity, who can receive testosterone treatment to achieve his desired physical changes by inducing puberty. The ACLU contends this scenario, plausible under Tennessee’s law, constitutes an Equal Protection Clause violation, because a female-born minor is denied treatment that a male-born minor can access.

However, the lower court noted that while there are discrepancies in treatment between boys and girls regarding drugs such as testosterone shots, minors are treated the same when it comes to the question of accessing treatments for gender dysphoria, specifically. The hypothetical presented by the ACLU attorneys finds “discrimination” in a scenario where two minors seek treatment for entirely different reasons.  Tennessee points to the lack of medical and scientific evidence supporting that transgender treatments are safe. The reality that these treatments have “serious and potentially irreversible side effects,” such as infertility, weakened bone density, sexual dysfunction, cardiovascular disease, and cancer. The state argued that children cannot consent to such life-altering procedures, and not even parents have a substantive due process right to impose such harmful treatments on their children, which likely eliminate the possibility for minors to naturally have their own children in the future. The state presented strong evidence of various European nations, such as Sweden and the United Kingdom, which have notably restricted transgender treatments for minors, noting the total lack of evidence to support such radical procedures.

On the equal protection front, the state noted boys and girls have distinct hormonal needs—boys require higher testosterone levels for healthy development into adults, and girls need higher estrogen levels for healthy womanhood. Therefore, while the law does distinguish based on sex, it treats minors equally by universally restricting access to specific hormonal treatments and surgeries for gender dysphoria.

These are some of the arguments that will come before the U.S. Supreme Court this fall as it hears arguments in U.S. v. Skrmetti. It will likely be the most politicized and controversial case that comes before the Supreme Court next term. Concerned Women for America (CWA) will be submitting an amicus brief in support of the state’s protection of minors from radical, irreversible gender procedures that have no basis in science.