Supreme Court delivers blow to transgender rights in Tennessee ruling

San Francisco Chronicle​

4 hours ago

The Supreme Court allowed President Donald Trump to expel thousands of transgender troops from the U.S. military last month while it considers his request to ban them from service. So it came as no surprise Wednesday when the court upheld a Tennessee law, similar to laws in 26 other states that have restricted gender-affirming care for transgender minors.
While the ruling is a major setback for transgender rights, it will not affect states like California that do not have bans on care for minors. The court also said this case raised different issues from those in its landmark ruling in 2020 that declared a federal law banning sex discrimination in employment also barred discrimination based on sexual orientation or gender identity.
In its 6-3 ruling Wednesday, the court said the Tennessee law does not discriminate based on sex or transgender status because males and females have access to the same types of treatment for other purposes.
The court weighed in on the debate over the medical value of gender-affirming care for minors. Some recent studies have not found evidence that the treatments are beneficial. Chief Justice John Roberts said in his ruling that 'the voices in these debates raise sincere concerns; the implications for all are profound.'
But shortly after the ruling, the American Academy of Pediatrics blasted it, saying, 'The Supreme Court's decision today does not change the science. Gender-affirming care remains evidence-based, medically necessary care that improves the health and well-being of transgender youth.'
The unsuccessful legal argument against the ban on medical care — that it would violate a transgender youth's constitutional right to equal protection of the laws — is the same argument advocates have used in challenging other parts of Trump's agenda, such as banning transgender military service, cutting off federal funding for research on gender identity, moving transgender women to men's prisons, and refusing to allow people to change gender identification on their passports.
The rollbacks are in line with an executive order Trump issued on his first day in office in January, declaring that the U.S. government recognizes 'two sexes, male and female,' as determined at birth. Lower courts have blocked some of those restrictions, but by rejecting the sex-discrimination argument Wednesday, the Supreme Court indicated that it is likely to uphold the president's orders.
The ruling could make states like California a haven for transgender youths from other states, a role it has played for women seeking abortions since the court's 2022 ruling overturning the constitutional right to abortion. In response to the ruling, state Attorney General Rob Bonta said, 'In California, we will continue to promote and protect access to health care, not restrict it.'
In Wednesday's majority opinion, Roberts said the Tennessee law, Senate Bill 1, is not discriminatory because it treats male and female patients equally.
'SB1 prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor's sex,' Roberts said. Because youths of either gender can still receive those treatments for other reasons, he said, the law does not discriminate based on sex. He cited an example raised in the dissent, of a minor girl with unwanted facial hair inconsistent with her sex seeking hormonal therapy to remove it, treatment that is not prohibited by the Tennessee law.
And he said the state 'does not exclude any individual from medical treatments on the basis of transgender status but rather removes one set of diagnoses — gender dysphoria, gender identity disorder, and gender incongruence — from the range of treatable conditions.'
In other words, a law that denies transition care to minors who identify as transgender does not violate the constitutional guarantee of equal protection of the laws, or bans on sex discrimination.
'Tennessee determined that minors lack the maturity to fully understand and appreciate the life-altering consequences of such procedures,' the chief justice said, and 'there is a rational basis' for those conclusions.
Justice Neil Gorsuch, the author of the 2020 ruling on employment discrimination, joined Roberts' opinion, along with Justices Samuel Alito, Clarence Thomas, Brett Kavanaugh and Amy Coney Barrett.
In a separate opinion, Alito said there was 'no evidence that transgender individuals, like racial minorities and women, have been excluded from participation in the political process.' And Thomas said states 'may legitimately question whether such treatments are ethical' for minors.
In dissent, Justice Sonia Sotomayor, joined by the court's other Democratic appointees, Justices Elena Kagan and Ketanji Brown Jackson, said the law was clearly discriminatory.
'Male (but not female) adolescents can receive medicines that help them look like boys, and female (but not male) adolescents can receive medicines that help them look like girls,' Sotomayor wrote.
'By retreating from meaningful judicial review exactly where it matters most, the Court abandons transgender children and their families to political whims.'
Bonta, whose office filed arguments urging the court to overturn the Tennessee law, condemned the ruling.
'Across the nation, we've seen a rise in hate-fueled violence and intimidation against our LGBTQ+ community, and laws such as Tennessee's Senate Bill 1 only serve to exacerbate these conditions by blatantly discriminating against transgender youth,' California's attorney general said.
State Sen. Scott Wiener, D-San Francisco, chair of the Legislature's LGBTQ Caucus, said the court 'is giving bigots like Trump a permission slip to make it impossible to be trans.' Nancy Northup, president of the Center for Reproductive Rights, recalled the court's 2022 ruling overturning its 1973 Roe v. Wade decision that declared a constitutional right to abortion, and said the court 'has once again taken a wrecking ball to Americans' rights to make decisions about their own bodies.'
But Tennessee Attorney General Jonathan Skrmetti, whose office defended the law in court, described the ruling as 'a landmark victory … in defense of America's children.'
And Carrie Severino, president of the conservative Judicial Crisis Network, said the court had properly 'refused to engage in judicial second-guessing of democratic decision-making. Thank goodness the old days of judicial self-aggrandizement that defined the Roe v. Wade era are behind us.'
The case is U.S. v. Skrmetti, 23-477.