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“During almost two-and-a-half hours of debate on Wednesday, nearly all of the court’s conservative majority expressed skepticism about a challenge to Tennessee’s ban on puberty blockers and hormone therapy for transgender teenagers. Three transgender teens, their families, and a Memphis physician, along with the Biden administration, contend that the law violates the Constitution’s guarantee of equal protection and should be examined with the higher degree of legal scrutiny required in such cases. But Tennessee counters that it is simply exercising its power to regulate the practice of medicine for all youth and is not distinguishing based on a patient’s sex.” SCOTUSblog
The left urges the Court to overturn Tennessee’s law, arguing that it infringes upon the rights of transgender children.
“The statute bars doctors from providing puberty blockers or cross-sex hormones to trans children, although these and other gender-affirming medicines remain freely available to cisgender kids. A cisgender boy who wants testosterone to kick off the development of male sex characteristics can still get it. A transgender boy who wants testosterone for the exact same reason cannot…
“The only difference between the two is that the transgender boy was deemed female at birth. So, the plaintiffs argue, S.B. 1 plainly discriminates on the basis of sex, and is therefore subject to heightened scrutiny, requiring Tennessee to put forth an ‘exceedingly persuasive justification’ for its restrictions, otherwise it is unconstitutional. Half a century of gender discrimination jurisprudence demands this result.”
Dahlia Lithwick and Mark Joseph Stern, Slate
“There is plenty of research to back up the concrete benefits appropriate medical care has for trans youth who need it. In an amicus brief jointly filed by the Trevor Project, the Juvenile Law Center, and the National Center for Youth Law, it is noted: ‘a peer-reviewed study of 11,914 transgender or nonbinary youth found that gender-affirming hormone therapy is associated with nearly 40% lower odds of recent depression and attempting suicide in the past year for transgender or nonbinary participants between the ages of 13 and 17.’”
Lex McMenamin, Teen Vogue
“It's true that several countries, most prominently the UK and Sweden, recently tightened guidelines on the use of puberty blockers and hormones. But none of these countries have banned gender-affirming treatment for adolescents. (And if the judges want to point to Europe as an example, a medical group in France this week released the first national guidelines for treating transgender adolescents — guidelines that support the use of puberty blockers and hormone therapy.)…
“The justices were also hung up on the idea that these drugs are being used ‘off-label,’ meaning the FDA has not approved them to treat gender dysphoria. The implication, of course, was that that makes them dangerous. Many pediatric medicines are prescribed off-label; the solution is to study them in children, not ban them… Putting families in these difficult, even dangerous situations does not seem like protecting children to me.”
Lisa Jarvis, Bloomberg
“The lawyers opposing S.B. 1 said ruling for Tennessee could lead to banning care for adults. Rice countered that if a court did uphold such a ban on adults, it would be left to the democratic process. ‘Democracy is the best check on potentially misguided laws,’ Rice said…
“But democracy often doesn’t protect people who aren’t white, male, and straight, [Justice Sonia] Sotomayor shot back. ‘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 said. ‘Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.’”
Susan Rinkunas, Slate
The right urges the Court to uphold Tennessee’s law, arguing that there is insufficient evidence the treatments work.
The right urges the Court to uphold Tennessee’s law, arguing that there is insufficient evidence the treatments work.
“Perhaps the single most consequential and rigorous examination of the safety and efficacy of gender-affirming medical interventions is the Cass Review, a comprehensive survey by Dr. Hilary Cass of research on gender-affirming medical treatments for minors. Britain’s National Health Service commissioned the review…
“Cass described the field of study as ‘an area of remarkably weak evidence.’ Even worse, ‘the results of studies are exaggerated or misrepresented by people on all sides of the debate to support their viewpoint.’ Her conclusion was sobering: ‘The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.’”
David French, New York Times
The plaintiffs “asked the justices to make the ‘evidence-based’ WPATH guidelines the constitutional standard… [But] Some authors of the WPATH standards reported that they avoided conducting systematic evidence reviews of the safety and efficacy of transition treatments because of ‘concerns, echoed by the social justice lawyers we spoke with,’ that ‘evidence-based review reveals little or no evidence and puts us in an untenable position in terms of affecting policy or winning lawsuits.’…
“In other words, to get courts to defer to ‘evidence-based’ guidelines, WPATH obscured the lack of evidence supporting them. WPATH leaders similarly asserted that it was important for these ostensibly medical guidelines to be reviewed by movement lawyers, ‘because we will have to argue it in court at some point.’ Two of the organizations WPATH considered to conduct that review, the ACLU and Lambda Legal, represent the plaintiffs at the Supreme Court…
“The Biden-Harris administration likewise worked with WPATH to craft the guidelines. WPATH sent a final draft in June 2022 to Rachel Levine, assistant secretary for health at HHS, who feared that the draft’s proposed age minimums for hormones and surgery would be politically damaging and pressured WPATH to get rid of them. After some initial consternation ‘about allowing US politics to dictate international professional clinical guidelines,’ WPATH obliged.”
Steve Marshall, Wall Street Journal
“Until very recently, the reality of sex difference was progressive orthodoxy. Feminists such as Ruth Bader Ginsburg once argued, for example, that abortion bans were sex discrimination because only women could get pregnant, so only women were affected by them…
“Now they must argue that it is sex discrimination to even acknowledge in the medical context that the same things may affect the male and female body differently…
“A ruling against Tennessee would require judges (whether the justices or lower courts) to delve deeply into the medical debate… Legislatures, not courts, are the proper place to decide the outer limits of what experiments doctors may inflict on children, and to adjust those decisions over time on the basis of changing conditions. That’s what has been happening in European countries that have reconsidered these treatments.”
The Editors, National Review
