Tennessee Republican Attorney General Jonathan Skrmetti filed a brief to the Supreme Court on Tuesday laying out the core arguments to defend the state’s ban on transgender medical procedures for minors, providing the clearest rebuttal so far to the Biden administration’s case that the law is discriminatory.
The date for oral arguments has not yet been set by the court, but as early as December, the nine justices could hear the groundbreaking case that would decide the fate of Tennessee’s law restricting access to puberty blockers, hormone therapies, and surgeries for the purpose of gender transitions for minors.
The Biden administration says the law violates the 14th Amendment’s equal protection clause because it denies puberty blockers and cross-sex hormones to transgender youth, “while allowing non-transgender minors to access the same or similar procedures.”
But Skrmetti’s case rests on the fact that the same medication can be prescribed for two very different clinical purposes.
“It is not unconstitutional discrimination to say that drugs can be prescribed for one reason but not another. Weighing risks and benefits, States (and the federal government) draw age- and use-based distinctions for drugs all the time,” attorneys for Skrmetti’s office wrote.
Identity, discrimination, and medicine
Senate Bill 1 was signed into law by Gov. Bill Lee (R-TN) in March and was quickly challenged by the American Civil Liberties Union on behalf of a group of anonymous minors and parents, including at least one physician who treats underage patients with gender dysphoria.
After the law was upheld in the U.S. Court of Appeals for the 6th Circuit, the Biden administration joined in the case and appealed to the nation’s highest court.
“The people of Tennessee, through their elected representatives, took measured action with Senate Bill 1 to protect kids from irreversible, unproven medical procedures,” Skrmetti said in a statement to the Washington Examiner.
The Tennessee law does not prohibit doctors from prescribing cross-sex hormones for adults wishing to medically transition genders. It also does not prevent doctors from using puberty blockers to treat early-onset puberty in minors, a rare condition in which children enter puberty too young.
The Biden administration also contends that the 2020 Supreme Court ruling Bostock v. Clayton County applies in this case because the precedent includes transgender status as protected under Title VII of the Civil Rights Act of 1964.
Tennessee’s brief also argues that SB 1 does not violate the 14th Amendment’s equal protection clause because it does not discriminate on the basis of biological sex, a protected identity category, nor does it discriminate based on transgender status.
“SB1 contains no sex classification that warrants heightened review,” the brief reads. “It creates two groups: minors seeking drugs for gender transition and minors seeking drugs for other medical purposes. Each of these groups ‘includes members of both sexes,’ so no facial sex classification exists.”
Skrmetti’s office further argues that the challengers to the law improperly convinced lower courts to give no deference to legislative findings about the risks and benefits surrounding transgender hormone treatment.
Gender medicine on trial
In addition to the explicit question of discrimination in this case, Skrmetti’s office has also asked the court to consider the debate over the medical efficacy of gender transition treatments for minors.
Skrmetti told the Washington Examiner that the state’s lawmakers understand the significant lack of evidence to “justify the serious risks these procedures present to youth and joined a growing number of European countries in restricting their use on minors with gender identity issues.”
The brief references the comprehensive, nearly 400-page overview of research on gender transition medicine for minors produced this year by the United Kingdom’s National Health Service, led by renowned British pediatrician Hilary Cass.
Cass found that the evidence for hormone-based therapies to treat minors with gender dysphoria is “built on shaky foundations” and supported by “remarkably weak evidence.”
As the brief highlights, “many of the European countries that pioneered these interventions have pulled back, restricting minors’ access based on safety and efficacy concerns.”
“The government’s one-sided telling of the evidence misreports the medical landscape,” wrote Skrmetti’s office. “And its over- and under-inclusivity arguments both ignore medical reality and fail to rebut SB1’s substantial relation to Tennessee’s compelling interests.”
More than 20 states have enacted similar bans on transgender medical treatment for minors, meaning the Supreme Court’s judgment would likely have far-reaching ramifications when a decision is made, likely by June 2025.
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The Supreme Court in the past has declined to weigh in on other cases involving transgender disputes, ranging from bathroom laws to biological males competing in female sports.
This could mean that the precedent set by the court in the Skrmetti case may have more weight than solely regarding transgender medical issues.