The Supreme Court appeared likely to back a divisive Tennessee law that bans gender-affirming care for minors after more than two hours of oral arguments on Wednesday in which the court delved into a culture war battle that has become even more politically fraught since the election. <\/p>\n
Several conservative justices \u2013 notably Chief Justice John Roberts and Justice Brett Kavanaugh \u2013 signaled deep reservations with the idea of courts second-guessing lawmakers who have approved bans on puberty blockers and hormone therapy for minors in roughly half of the nation\u2019s states. <\/p>\n
The court\u2019s three liberal justices appeared to be aligned in favor of the trans youth and their parents who challenged the Tennessee law and the Biden administration in saying that transgender Americans should receive heightened protection under the law. <\/strong>And one key conservative \u2013 Justice Neil Gorsuch \u2013 was notably silent. <\/p>\n The transgender care case is the most significant matter to come before the Supreme Court this term \u2013 and it has become even more extraordinary since former President Donald Trump was elected to a second term, in part on a campaign to end the \u201ctransgender craziness.\u201d <\/p>\n More than 110,000 teenagers live in states where restrictions on transgender care exist, according to the Williams Institute at UCLA School of Law. <\/p>\n Here\u2019s what to know from <\/strong>Wednesday\u2019s historic arguments: <\/p>\n On multiple occasions, Roberts and Kavanaugh, two of the court\u2019s most important votes, suggested that the issue of gender-affirming medical treatments for minors should be left to legislatures to decide and that the courts shouldn\u2019t play a role. <\/p>\n Roberts\u2019 skepticism toward courts getting involved was a particularly worrying sign for the challengers to the Tennessee ban, as Roberts had previously sided with federal transgender employees in a major 2020 case finding those employees are covered under the workplace discrimination protections of the Civil Rights Act. <\/p>\n But on Wednesday, Roberts zeroed in on the \u201cmedical nuances\u201d involved in deciding what treatments minors should have access to and he described this case as different from other legal disputes over sex-based policies because it is \u201cintensely affected by medical considerations.\u201d <\/p>\n \u201cIf that\u2019s true, doesn\u2019t that make a stronger case for us to leave those determinations to the legislative bodies, rather than try to determine them for ourselves?\u201d Roberts said. <\/p>\n Kavanaugh, meanwhile, repeatedly described the dispute as asking the court to weigh the risks for one group of individuals \u2013 minors who would suffer if Tennessee law\u2019s was upheld because they benefit from the treatments \u2013 against the risks for other individuals who would be harmed it was struck down and they received treatments that they later regretted. <\/p>\n Kavanaugh, like Roberts, said policymakers were better than courts at weighing those two issues, and noted that different states could come to different conclusions. <\/p>\n Several of the court\u2019s conservatives appeared heavily focused on so-called detransitioners \u2013 individuals who regret receiving gender-affirming treatments earlier in their lives \u2013 as they expressed skepticism toward arguments that transgender Americans should receive heightened protection under the law. <\/p>\n Justice Samuel Alito, in particular, was interested in the question of whether transgender status is <\/strong>\u201cimmutable.\u201d Historically, the court has considered immutability to be a key aspect of the characteristics of a group deserving of more protection. <\/p>\n \u201cI think that the record shows that the discordance between a person\u2019s birth sex and gender identity has a strong biological basis and would satisfy an immutability test,\u201d Chase Strangio, a lawyer representing trans youth challenging the law, said in response. <\/p>\n For his part, Kavanaugh appeared interested in arguments pushed by detransitioners in friend-of-the-court briefs that states should take a more cautious approach to allowing minors to access gender-affirming care. <\/p>\n \u201cYou say there are benefits from allowing these treatments, but there are also harms, right, from allowing these treatments. At least the state says so \u2013 including lost fertility, the physical and psychological effects on those who later change their mind and want to detransition, which I don\u2019t think we can ignore,\u201d he said. <\/p>\n \u201cHow do we, as a court, choose which set of risks is more serious in deciding whether to constitutionalize this whole area,\u201d Kavanaugh asked US Solicitor General Elizabeth Prelogar, who in response acknowledged that there \u201cmay be a small number that will regret this care.\u201d <\/p>\n Conservative lawmakers\u2019 defense of gender-affirming care bans often cite detransitioning as evidence of possible harm if patients come to regret their medical transition. But LGBTQ advocates argue that detransition is rare and is not always rooted in regret. A person may choose to stop undergoing treatment because they lack family support or access to adequate care, among other reasons. <\/p>\n Several studies have shown that most people who opt for gender-affirming care don\u2019t later regret their choices \u2014 including an October 2022 study in the Netherlands that found 98% of transgender youth who had started gender-affirming medical treatment in adolescence continued to use those hormones around five or six years later in adulthood. <\/p>\n Kavanaugh repeatedly raised concerns about the impact the court\u2019s decision may have on girls\u2019 sports \u2013 an issue that has already worked its way up to the Supreme Court in several cases. <\/p>\n \u201cIf you prevail here,\u201d Kavanaugh pressed Prelogar, \u201cwhat would that mean for women\u2019s and girls\u2019 sports in particular?\u201d <\/p>\n It was notable that Kavanaugh was raising <\/strong>that question. The Trump nominee has discussed his efforts coaching basketball for his daughters\u2019 teams, one of which even came to his confirmation hearing in 2018. <\/p>\n Would transgender athletes, Kavanaugh asked, \u201chave a constitutional right\u201d to play on girls sports teams, \u201cnotwithstanding the competitive fairness and safety issues that have been vocally raised by some female athletes?\u201d <\/p>\n Prelogar countered that a win for the trans youth wouldn\u2019t decide questions about sports. <\/strong>That\u2019s partly because sex-separated spaces like bathrooms and sports teams already face a heightened level of scrutiny and so are analyzed differently. <\/p>\n If the majority wanted to \u201cpreserve space to make clear that nothing here should be understood to affect the separate questions\u201d about sports teams and bathrooms, Prelogar said, \u201cthe court could very well do so.\u201d <\/p>\n The Supreme Court is already weighing two appeals \u2013 one from Idaho and the other from West Virginia \u2013 on that question. <\/p>\n One of the most notable twists in the hours of speaking was a conservative justice who decided to say nothing at all: Neil Gorsuch. <\/p>\n Gorsuch is <\/strong>considered a key vote in the case because he wrote the majority opinion in an unexpected decision four years ago in Bostock v. Clayton County <\/em>that protected transgender employees from discrimination in the workplace. He was cheered by surprised LGBTQ+ advocates on the left and roundly criticized by conservatives \u2013 including several of his colleagues on the bench. <\/p>\n His decision not to ask a single question was highly unusual in such a high-profile case. As the court turned to the portion of the argument where questions are asked based on seniority, Roberts repeatedly turned to Gorsuch when it was his turn. Those invitations were met with total silence. <\/p>\n Gorsuch has stressed that his reasoning in Bostock <\/em>was limited to workplace protections. And his position in Bostock <\/em>drew a flurry of written arguments from conservative groups seeking to draw a distinction between what the court ruled in that context and what it was being asked to do for gender-affirming care. <\/p>\n Prelogar clearly picked up on the significance: As she was delivering her closing remarks, she frequently looked directly at Gorsuch. <\/p>\n When the court agreed to hear the Biden administration\u2019s challenge to the law, it left in limbo an appeal brought by transgender minors and their parents that asked the court to consider the rights of parents to make medical decisions for their children. <\/p>\n It\u2019s an issue that has divided conservatives \u2013 and it may leave on the table future challenges to transgender care bans, even if Tennessee prevails. <\/p>\n Justice Amy Coney Barrett, a conservative, pressed advocates on both sides of the case about whether a ruling in the state\u2019s favor would foreclose courts from considering any future challenge of the law based on those grounds. <\/p>\n \u201cEven if we decided that this wasn\u2019t a sex-based classification that triggered intermediate scrutiny, that would not prevent parents from still asserting the substantive due process, right?\u201d Barrett asked Prelogar. <\/p>\n \u201cYes, yes, of course. I agree with that,\u201d Prelogar replied, adding that she thought the sex-based discrimination claim \u201cis the most straightforward way to think about what\u2019s going on here.\u201d <\/p>\n Later, Barrett posed a similar question to Tennessee\u2019s attorney, J. Matthew Rice, asking whether plaintiffs would be able to \u201ccontinue to press that point in other cases\u201d regardless of how the court rules in the case at hand. <\/p>\n \u201cWe agree,\u201d Rice replied, adding that he thought the appeals court was correct when it shot down the parental rights claim last year. <\/p>\n It\u2019s one of several issues that adds uncertainty to the future of the litigation around transgender rights. Another is Trump. The incoming administration may reverse the federal government\u2019s position in the case, a move that would give the court the opportunity to dismiss the dispute outright. <\/p>\n That, in turn, could lead the justices to agree to hear the case brought by the minors and their families if they wanted to resolve the issue at all this session. <\/p>\n While Tennessee\u2019s ban is limited to just minors, Prelogar repeatedly stressed that if the Supreme Court accepted the state\u2019s arguments, those defenses would apply to more sweeping laws. <\/p>\n In the final moments of the hearing, the solicitor general took a shot at Kavanaugh\u2019s emphasis on how states can come to different conclusions when their policymakers are weighing the risks of treatments for minors against their benefits. <\/p>\n \u201cI think it\u2019s important to recognize that my friend\u2019s arguments would equally apply to a nationwide ban if this were enacted by Congress,\u201d Prelogar said. \u201cAnd so, I think that the court should keep that in mind when thinking about the level of scrutiny here.\u201d <\/p>\n Prelogar said earlier that under Tennessee\u2019s theory of the law, nothing would stop the state from banning gender-affirming care for all transgender people, not just minors. <\/p>\n Transgender rights advocates have argued that that anti-transgender laws aimed at supposedly protecting children are just the start of a strategy that would ultimately go after all transgender people. <\/p>\n As the conservative justices signaled support for the Tennessee law, they were forced to do so before the first openly transgender attorney to argue a case at the Supreme Court. <\/p>\n Strangio, a seasoned ACLU attorney representing the Tennessee families challenging the ban, made history as he stood in the well of the ornate courtroom to field questions from the justices about why he believed the law is unconstitutional. <\/p>\n Though Strangio was only scheduled to present arguments for 15 minutes, he spent much longer at the lectern, going head-to-head with the conservatives about the law and a long history of anti-trans legislation in this country that he said underscored a need for the court to provide more legal protection for people like him. <\/p>\n The Tennessee law, he said, \u201chas taken away the only treatment that relieved years of suffering for each of the adolescent plaintiffs.\u201d <\/p>\n Cheers erupted outside the court when Strangio spoke to trans advocates following the hearing. Strangio thanked those who braved the frigid Washington, DC, weather to stand up for their rights and the rights of transgender people across the country. <\/p>\n \u201cWhatever happens, we are the defiance,\u201d Strangio said. \u201cWe are collectively a refutation of everything they say about us. And our fight for justice did not begin today, it will not end in June \u2013 whatever the courts decide.\u201d <\/p>\n<\/p>\n The Supreme Court appeared likely to back a divisive Tennessee law that bans gender-affirming care for minors after more than two hours of oral arguments on Wednesday in which the court delved into a culture war battle that has become even more politically fraught since the election. Several conservative justices \u2013 notably Chief Justice John …<\/p>\n","protected":false},"author":1,"featured_media":1747,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"loftocean_post_primary_category":0,"loftocean_post_format_gallery":"","loftocean_post_format_gallery_ids":"","loftocean_post_format_gallery_urls":"","loftocean_post_format_video_id":0,"loftocean_post_format_video_url":"","loftocean_post_format_video_type":"","loftocean_post_format_video":"","loftocean_post_format_audio_type":"","loftocean_post_format_audio_url":"","loftocean_post_format_audio_id":0,"loftocean_post_format_audio":"","loftocean-featured-post":"","loftocean-like-count":0,"loftocean-view-count":672,"tinysalt_single_post_intro_label":"","tinysalt_single_post_intro_description":"","tinysalt_hide_post_featured_image":"","tinysalt_post_featured_media_position":"","tinysalt_single_site_header_source":"","tinysalt_single_custom_site_header":"0","tinysalt_single_custom_sticky_site_header":"0","tinysalt_single_custom_sticky_site_header_style":"sticky-scroll-up","tinysalt_single_site_footer_source":"","tinysalt_single_custom_site_footer":"0","footnotes":""},"categories":[35],"tags":[],"class_list":["post-1746","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-health-news"],"_links":{"self":[{"href":"https:\/\/retirednurseblog.com\/index.php\/wp-json\/wp\/v2\/posts\/1746","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/retirednurseblog.com\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/retirednurseblog.com\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/retirednurseblog.com\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/retirednurseblog.com\/index.php\/wp-json\/wp\/v2\/comments?post=1746"}],"version-history":[{"count":0,"href":"https:\/\/retirednurseblog.com\/index.php\/wp-json\/wp\/v2\/posts\/1746\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/retirednurseblog.com\/index.php\/wp-json\/wp\/v2\/media\/1747"}],"wp:attachment":[{"href":"https:\/\/retirednurseblog.com\/index.php\/wp-json\/wp\/v2\/media?parent=1746"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/retirednurseblog.com\/index.php\/wp-json\/wp\/v2\/categories?post=1746"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/retirednurseblog.com\/index.php\/wp-json\/wp\/v2\/tags?post=1746"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}} Roberts, Kavanaugh wary of courts second-guessing legislatures<\/h2>\n
Alito and other conservatives focus on \u2018detransitioners\u2019<\/h2>\n
Kavanaugh worried about girls\u2019 sports<\/h2>\n
Gorsuch, a key vote in transgender case, remains silent<\/h2>\n
Parental rights and Trump add uncertainty<\/h2>\n
Tennessee\u2019s opponents fear more sweeping bans<\/h2>\n
Transgender lawyer makes history in SCOTUS faceoff<\/h2>\n