Tennessee’s Ban On Gender-Affirming Care For Minors Heads To Supreme Court

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Dive Brief:

• The U.S. Supreme Court agreed to hear a case on Monday challenging Tennessee’s ban on gender-affirming care for transgender minors, including hormone therapy and puberty blockers.
• The case, which is expected to be heard during the Supreme Court’s October 2024 term, has the potential to impact healthcare policy for transgender youth currently living in 25 states with similar bans, according to a tracker from the Human Rights Campaign.
• The conservative majority Supreme Court has a mixed record on transgender issues. In April, the Court permitted Idaho to mostly enforce a similar law banning gender-affirming care for minors.

Dive Insight:

At issue is a Tennessee law that prohibits hormone treatments or surgeries intended to help a minor “to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat gender dysphoria — “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”

Last year, a group of families and a physician in Tennessee sued the state’s attorney general, arguing the ban violated the 14th Amendment by discriminating on the basis of sex. 

A U.S. district court sided with the plaintiffs in June 2023 and blocked most of the ban, but left a prohibition on gender-affirming surgical procedures for minors in place. The court found the ban was discriminatory on the basis of sex and that the “benefits of the medical procedures banned by [the law] are well-established.”

However, an appellate court disagreed, upholding the law in September 2023 and allowing Tennessee to enforce the ban.

Chief Judge Jeffrey Sutton, writing the majority opinion for the U.S. Court of Appeals for the 6th Circuit, said he had no question that gender dysphoria was a legitimate diagnosis. However, despite hearing evidence from medical groups supporting the treatments, he had doubts about their use — Sutton called the medical protocols “ever-shifting,” and said it was difficult to determine a bright line of what constituted “medically necessary care.”

The Biden administration took up the case next, with Solicitor General Elizabeth Prelogar petitioning the high court last November to overturn the law.

Prelogar called the ban “part of a wave of similar bans preventing transgender adolescents from obtaining medical care that they, their parents, and their doctors have all concluded is necessary.”

Without intervention from the Supreme Court, Prelogar warned “families in Tennessee and other states … will face the loss of essential medical care.”

Tennessee Attorney General Jonathan Skrmetti said in a statement on Monday that he had “fought hard” to defend the state’s law and looks forward to “finishing the fight at the United States Supreme Court.”

The Supreme Court has a mixed record on transgender rights, at times extending individuals constitutional protections and at others declining to hear cases on the topic.

In 2020, the Court ruled 6-3 to protect transgender and gay employment rights. However, it declined to hear the 2021 “bathroom bills,” which involved transgender student bathroom access.