Photograph: Jacquelyn Martin/AP
Today, 4 December 2024, the US Supreme Court heard oral arguments in the case of the US v Skrmetti – the name of the Attorney-General of Tennessee. At issue was the constitutionality of Tennessee’s bill banning puberty blockers and cross-sex hormones for minors. This is the first time that the Supreme Court has grappled with this issue.
Outside the Court, gays and lesbians and others supporting the bill staged a protest. They included our friends at LGB Alliance USA and Ben Appel and Jamie Reed of the Courage Coalition, who spoke at our conference in October. There were great speeches, and their banners made the front page of the New York Times!
The plaintiffs in this case were the US Government, represented by the Solicitor General (SG), and the American Civil Rights Union (ACLU), represented by Chase Strangio.
Dozens of external parties had submitted amicus curiae briefs (written interventions) to assist the Court. Several of them dealt with subjects such as the Cass Review, the trend towards caution in Sweden and other European countries, detransitioners, and a couple touched on the problem of lesbians and gay men mistaking their sexual orientation for a gender identity issue. The brief by the Attorney General of Alabama, in particular, contained a detailed indictment of the World Professional Association of Transgender Health (WPATH) that effectively demolished its credibility. However, the nine justices are not obliged to read these briefs, and it was clear that many of them hadn’t.
The plaintiffs’ case did not focus on benefits versus harm of these drugs. They had two alternative lines of attack. One was – bizarrely enough — sex discrimination and the other was that transgender people are a “quasi-suspect class” – a snazzy legal term for a coherent category of people whose protections should have received a higher level of scrutiny from Tennessee’s courts.
Justices Roberts, Kavanaugh and especially Alito were clearly well-informed. So the SG had to answer questions on Cass and changes in Europe, which she tried to downplay. The plaintiffs’ sex discrimination argument goes like this: if a boy whose puberty is going too slowly wants exogenous testosterone because his voice hasn’t broken, that is allowed. But if a girl wants testosterone to get a deeper voice, Tennessee’s bill forbids it. So, it’s sex discrimination. I find it hard to believe many of the justices were impressed by that line.
Chase Strangio argued that transgender individuals are a discrete group whose protection requires extra scrutiny. This prompted questions from the justices such as what about detransitioners? (answer: there are very few, only about 1%); what about “gender-fluid” people? (answer: er, not everyone fits into the binary); isn’t “transgender” a very broad, umbrella term? (answer: for all transgender people, what applies is that their gender identity doesn’t match their birth sex.)
No one asked what “gender identity” is – unless I missed it.
Some justices were sharply critical of Tennessee. Justice Sotomayor was very concerned that teens denied puberty blockers and cross-sex hormones might commit suicide. I had the impression she hadn’t read the amicus curiae briefs. Justice Katanji Brown Jackson repeatedly compared Tennessee’s bill to some awful law in Virginia that had prohibited interracial marriage. A comparison that will have struck many as irrelevant and outlandish.
I won’t deal with the submissions by Tennessee Solicitor General Rice, since he defended the ban quite succinctly. He pointed out that Tennessee was in a sense following the FDA, which has not approved puberty blockers for gender dysphoria (whereas they are approved for several other maladies). He also emphasised that the ban has nothing to do with sex discrimination: the purpose is to protect minors of both sexes and it is therefore based on age, not sex. Again, the “sex discrimination” claim seems very far-fetched. As for whether the Supreme Court will decide that “transgender people” are a “quasi-suspect class” and send the case back to Tennessee to receive heightened scrutiny – well, we’ll have to wait and see. Judgment expected around June.