Biden DOJ tells Supreme Court states can restrict trans surgeries, puberty blockers for kids
The United States Department of Justice told the U.S. Supreme Court that it believes states can restrict puberty blockers and cosmetic sex-change surgeries for minors as the high court considers whether to rule against a Tennessee law banning such irreversible procedures.
The high court heard oral arguments on Wednesday in the case of United States v. Skrmetti, which will decide whether Tennessee can ban puberty blockers and body-mutilating surgeries from being performed on youth expressing confusion about their sex, also known as gender dysphoria.
U.S. Solicitor General Elizabeth Prelogar argued against the ban, explaining in her opening argument that she believed the state law discriminated on the basis of sex.
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However, Prelogar did admit that “we do think there is a real space for states to regulate here” and pointed to West Virginia, where a ban on trans procedures provides an exemption for teenagers who are considered at risk for suicide or other self-harm.
“The West Virginia Legislature changed course and imposed a set of guardrails that are far more precisely tailored to concerns surrounding the delivery of this care,” she stated.
“I think a law like that is going to fare much better under heightened scrutiny precisely because it would be tailored to the precise interests and not serve a more sweeping interest like the one asserted here in having minors appreciate their sex.”
Justice Samuel Alito asked Prelogar about the actions seen in places like the United Kingdom and Sweden, where such body-deforming procedures have been curtailed amid concerns about their long-term harms to patients' mental, emotional and physical health.
Prelogar responded by arguing that neither country has “outright banned” the procedures for minors, and claimed that experts believe such procedures can be “medically necessary.”
When asked by Justice Sonia Sotomayor about state interests in the procedures, Prelogar said she agreed that “in a circumstance where the state has an important interest” they can regulate them.
“We don’t think that that means the states are entirely barred from regulating in this space,” she continued. “Obviously, they are grappling with these issues in a variety of contexts.”
Tennessee Solicitor General J. Matthew Rice argued that the law was based on “medical purpose” rather than the basis of sex identification, and thus was not discriminatory.
Rice argued that the plaintiffs were “conflating” procedures that were “fundamentally different,” as puberty blockers can be used for reasons outside of gender reassignment.
“Just as using morphine to manage pain differs from using it to assist suicide, using hormones and puberty blockers to address a physical condition is far different from using it to address psychological distress associated with one’s body,” Rice said.
When Justice Clarence Thomas asked about the example of West Virginia and its law, Rice said it was “pure policy-making,” having argued that laws like Tennessee’s should be left to legislatures, not judges.
Justice Ketanji Brown Jackson compared the Tennessee law to Virginia’s ban on interracial marriage that was struck down by the Supreme Court in the 1967 case Loving v. Virginia.
“In Loving, those same kinds of scientific arguments were made,” Brown said, noting that, in that case, Virginia had argued that when “the scientific evidence is substantially in doubt” the Supreme Court “should defer to the wisdom of the state legislature.”
Rice countered that, unlike interracial marriage bans, Tennessee’s law was not based on an identity marker like sex or race, but rather was centered on the purpose for seeking a certain treatment.
Chase Strangio of the American Civil Liberties Union, the first openly trans-identified lawyer to argue before the Supreme Court, said that state lawmakers “impose a blunderbuss ban” on the procedures.
Chief Justice John Roberts asked Strangio if the courts should be deciding the fate of laws based on “evolving” debates on medical care and procedures, expressing concern over the idea.
Strangio drew a comparison to when the Supreme Court struck down certain COVID-19 restrictions on religious gatherings, stating that “the court has not hesitated to suggest that heightened scrutiny applies in contexts that deal with medicine and science.”
Alito asked Strangio if trans-identity was “immutable” like other classifications such as race, with Strangio saying that she believed it did have a “biological” aspect and was also a “distinguishing characteristic.”
Tennessee passed Senate Bill 1 in March of last year, which prohibits healthcare providers from performing genital mutilation surgeries or giving puberty blockers to children suffering from gender dysphoria.
“The legislature declares that the integrity and public respect of the medical profession are significantly harmed by healthcare providers performing or administering such medical procedures on minors. This state has a legitimate, substantial, and compelling interest in protecting minors from physical and emotional harm,” noted the findings of SB 1.
“This state has a legitimate, substantial, and compelling interest in protecting the integrity of the medical profession, including by prohibiting medical procedures that are harmful, unethical, immoral, experimental, or unsupported by high-quality or long-term studies, or that might encourage minors to become disdainful of their sex.”
Multiple progressive groups sued to strike down the new law on behalf of trans-identified minors and their families, with the U.S. Department of Justice intervening on behalf of the plaintiffs.
Although a lower court placed a preliminary injunction against the new law, a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit allowed the legislation to take effect.
Last September, a Sixth Circuit panel ruled 2-1 to uphold the law, with Circuit Chief Judge Jeffrey Sutton, a George W. Bush appointee, authoring the majority opinion.
“There is a long tradition of permitting state governments to regulate medical treatments for adults and children,” wrote Sutton. “So long as a federal statute does not stand in the way and so long as an enumerated constitutional guarantee does not apply, the States may regulate or ban medical technologies they deem unsafe.”
Circuit Judge Helene White, another W. Bush appointee, wrote a dissenting opinion, arguing that the provisions of the legislation “discriminate based on sex and gender conformity and intrude on the well-established province of parents to make medical decisions for their minor children.”
