During almost two-and-a-half hours of debate on Wednesday, nearly all of the court’s conservative majority expressed skepticism about a challenge to Tennessee’s ban on puberty blockers and hormone therapy for transgender teenagers. Three transgender teens, their families, and a Memphis physician, along with the Biden administration, contend that the law violates the Constitution’s guarantee of equal protection and should be examined with the higher degree of legal scrutiny required in such cases. But Tennessee counters that it is simply exercising its power to regulate the practice of medicine for all youth and is not distinguishing based on a patient’s sex.
Several of the court’s conservative justices voiced concerns about whether legislatures, rather than judges, are best suited to make determinations about what they saw as the complicated medical issues underlying the dispute. This idea has become a familiar theme at the court in recent years, including in the landmark 2022 decision overturning the constitutional right to abortion. Justice Brett Kavanaugh in particular on Wednesday wondered aloud whether decisions about issues like gender-affirming care for transgender teens might be best left to the democratic process.
The court’s decision could have ripple effects beyond Tennessee or even the other 23 states that have similar laws, affecting other protections for transgender people.
U.S. Solicitor General Elizabeth Prelogar urged the justices to focus on the narrow question whether the Tennessee law, known as SB1, draws distinctions based on sex and should therefore be subject to a more stringent review than the one applied by a federal appeals court in Cincinnati, which had upheld the law. But although the court’s three Democratic-appointed justices clearly agreed with her, it was difficult to say whether there were two more votes to join them and send the case back to that court for another look.
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