After the Supreme Court ruled nine years ago that the Constitution protected same-sex marriage, far-right groups, in need of a new rallying cry, turned their attention to transgender people—in particular, kids. That strategic shift has met with devastating success: In recent years, 24 states have made it illegal for doctors to provide trans youth with puberty blockers and hormone therapy—treatments supported by virtually all leading US medical organizations—for the purpose of alleviating gender dysphoria.
Although anti-trans groups frame their campaign as a “Promise to America’s Children,” their ultimate goal has long been apparent: ending gender transitions for all people, including adults. As Terry Schilling, president of the American Principles Project, admitted last year, he and his allies were starting with children because that’s “where the consensus is.”
That agenda was front and center Wednesday morning when the Supreme Court heard arguments in United States v. Skrmetti, a landmark case that could prove to be as consequential for trans rights as the Dobbs decision has been for abortion. The case focuses on Tennessee’s ban on gender-affirming treatments for minors, passed last year. But throughout hearing, which lasted two and a half hours, lawyers repeatedly brought up the ramifications for adults as well.
A decision in Tennessee’s favor would pave the way for courts to uphold broader bans on gender-affirming care in the future. “There really is much more at stake,” says Katie Eyer, who teaches anti-discrimination law at Rutgers University, “including potentially the ability of people of any age to effectively get [gender] care in the United States.”
As I have reported, Skrmetti centers on the question of whether bans on gender-affirming care are a form of sex discrimination under the 14th Amendment, as the Biden administration, transgender kids, and their families have argued. If so, judges must closely examine lawmakers’ rationale and evidence for passing them (known as “heightened scrutiny”). If not, courts should rubber-stamp such laws when challenged (the so-called “rational-basis” standard).
Tennessee, of course, wants the rubber stamp. State Solicitor General J. Matthew Rice repeatedly argued on Wednesday that the 2023 ban does not treat people differently based on their sex, and thus does not merit closer scrutiny.
Under questioning from Justice Sonia Sotomayor, Rice said that if the court rules Tennessee’s current ban doesn’t require heightened scrutiny, a law banning gender-affirming care for adults wouldn’t either. “Your Honor, we think that if we’re assuming a similarly worded statute, that there still would not be a sex- or a transgender-based classification.”
“You’re licensing states to deprive grown adults of the choice of which sex to adopt?” Sotomayor probed.
“Your honor, I don’t think that’s a fair—” Rice began.
“That’s what you’re telling me,” Sotomayor cut him off.
The debate over adult bans isn’t hypothetical. Florida is currently enforcing a ban on gender-affirming care for minors that also significantly restricts adult care—preventing nurse practitioners from prescribing hormone therapy, for example, and requiring appointments to be in person rather than via telehealth. Officials in Ohio and Missouri have tried to use regulatory powers to impose rules that limit adult transition care. Other states have targeted insurance coverage. South Carolina, for instance, bans the use of Medicaid and other public funds for gender-affirming care, regardless of the patient’s age.
“When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you. Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”
Throughout the hearing, some conservative justices seemed to signal a desire to leave the legality of gender-affirming treatments for minors to states to decide—as the court purported to do when it overturned Roe v. Wade in 2022—citing the evolving nature of the scientific evidence. “The Constitution leaves that question to the people’s representatives, rather than to nine people, none of whom is a doctor,” Chief Justice John Roberts said. Leaving the question to legislatures, rather than courts, would mean ruling that such laws get a lower level of scrutiny from judges.
In his exchange with Sotomayor, Rice seemed to argue that “democratic process” was enough to stop laws that are rooted in prejudice. “To the extent that a law dealing with adults would pass rational-basis review, that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws,” he said.
Sotomayor, whose formidable presence anchors the court’s progressive wing, wasn’t buying it. “When you’re 1 percent of the population or less, [it’s] very hard to see how the democratic process is going to protect you,” she retorted. “Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.”
With the GOP set to take control of the White House and Congress in January, the “democratic process” could soon produce a nationwide ban on gender-affirming care for minors. If the Supreme Court decides to hold the Tennessee ban to a low bar, rather than requiring it to meet the higher level of scrutiny, its decision “would equally apply to a nationwide ban,” US Solicitor General Elizabeth Prelogar, representing the Biden administration, pointed out during the hearing.
At a rally outside the Supreme Court, Georgia Republican Rep. Marjorie Taylor Greene announced that she was reintroducing just such a bill, claiming the support of incoming President Donald Trump, Vice President JD Vance, and Speaker of the House Mike Johnson. “Those that worship evil are abusing our children, brainwashing our children to believe the lie that comes directly from Satan,” Greene declared.
To Ari, a 21-year-old trans college student from Tennessee who attended a rally in support of trans rights outside the courthouse on Wednesday, the question of whether the courts will protect transgender people from legislative attacks is a matter of life or death. Ari had joined the demonstration, they said, for the sake of the trans kids they’ve known who never made it to adulthood—including a high school friend who committed suicide.
“I think legislation like this only leads to more dead kids,” Ari said. “Tennessee, being one of the most poorly educated, most under-resourced states in the country, is ignoring its own problems in order to terrorize children and families who just want to support their kids.”