The Supreme Court on Wednesday in just its second major case, a challenge to a Tennessee law that bans .
The nation鈥檚 top court will weigh whether violates the equal protection clause of the 14th Amendment, requiring that people in similar circumstances be treated the same under the law. Both sides in the case say they are acting to protect minors from harm.
At least 26 states for minors, and most of those states face lawsuits.
Here's the latest:
Strangio: 鈥榃e will keep fighting鈥�
Chase Strangio, the ACLU attorney who represented the families challenging the ban, said he was 鈥渉umbled and honored鈥� to appear before the court.
Strangio said the arguments Tennessee used for its ban could also be used to justify a national ban. Strangio is the first transgender attorney to argue before the Supreme Court.
鈥淣o matter what happens, we will keep fighting,鈥� Strangio said.
鈥楨ach state is allowed to make its own decisions鈥�
Speaking outside the Supreme Court building after the arguments, Tennessee Attorney General Jonathan Skrmetti said the state鈥檚 argument would allow other states to set their own policies on whether or not to restrict the case.
鈥淓ach state is allowed to make its own decisions,鈥� he said.
Lead co-sponsor of Tennessee鈥檚 ban is 鈥榟opeful鈥� it will be upheld
鈥淭oday marks a pivotal moment in Tennessee and our country鈥檚 history. The Supreme Court of the United States heard oral arguments for a first-of-its-kind case that shows every state in the country what it really looks like to stand up for children,鈥� Tennessee state Sen. Jack Johnson said in a statement.
Miss the hearing?
Listen in .
Arguments begin at 1:12:38.
Prelogar pushes in her closing arguments for a narrow ruling
She pointed out that the arguments in favor of Tennessee鈥檚 law could also potentially support nationwide restrictions on transgender health care for minors.
The issue could remain at the center of the political conversation after the inauguration next month of President-elect Donald Trump, who made opposition to transgender rights central to his campaign鈥檚 closing message.
Arguments have concluded
The arguments in front of the justices wrapped up after more than two hours.
Rice argues Tennessee鈥檚 law doesn鈥檛 discriminate based on sex
鈥淥ur fundamental point is there is no sex-based line here,鈥� Rice said.
Rice argued that the Tennessee law is instead aimed at the purpose of the treatment.
Children can get puberty blockers to treat early onset puberty, but not as a treatment for gender dysphoria.
Justices again ask about the implications of Tennessee鈥檚 law in other areas
Justice Amy Coney Barrett asked Tennessee Solicitor General Matt Rice about the possible impact of both laws restricting women and girls from women鈥檚 and girls鈥� sports competitions 鈥� and those that keep them out of women鈥檚 and girls鈥� bathrooms in schools or other public buildings.
At least 24 states have sports laws. At least 11 have bathroom laws.
Where the justices seem to be leaning so far
The court鈥檚 three liberal justices seem firmly on the side of the Biden administration and the families who are challenging the Tennessee law.
But it鈥檚 not clear that any of the court鈥檚 six conservatives will go along.
Five conservatives have voiced varying degrees of skepticism of the challengers鈥� arguments. Gorsuch has yet to say anything.
Tennessee鈥檚 state solicitor general begins arguments
Tennessee Solicitor General Matt Rice is now before the court to defend the state鈥檚 law, following the conclusion of ACLU attorney Chase Strangio鈥檚 time at the podium.
Strangio cites laws against cross-dressing and more as examples of 鈥榙e jure鈥�
Justice Amy Coney Barrett earlier had asked if there were examples of 鈥渄e jure,鈥� or by law, discrimination against transgender people rather than private discrimination.
Strangio cited laws against cross-dressing and previous bans on military service by transgender people.
President Joe Biden in 2021 a Trump-era policy that largely barred transgender people from serving in the military. Trump has indicated he plans to reinstate that ban when he takes office in January.
Roberts suggests lawmakers should make the decision on such care 鈥� not judges
鈥淭he Constitution leaves that question to the people鈥檚 representatives, rather than to 9 people, none of whom is a doctor,鈥� Roberts said in questioning Strangio.
Alito seems skeptical about whether gender-affirming care reduces suicide risk
Strangio notes that multiple studies show the care reduces the risk of depression and suicidality.
Transgender youth in the United States have been flooding since the of Donald Trump, who made central to his campaign.
ACLU attorney begins arguments
ACLU attorney Chase Strangio has begun his arguments against Tennessee's ban. He follows U.S. Solicitor General Elizabeth Prelogar, who finished answering questions after spending more than an hour at the podium.
Brown Jackson references Loving v. Virginia decision
Justice Ketanji Brown Jackson said she saw some parallels between the case and a 1967 landmark decision that legalized interracial marriage.
She said that in the , which addressed a Virginia law, 鈥渆veryone seemed to concede that a racial classification was being drawn as a starting point. The question seemed to be whether it was discriminatory.鈥�
Barrett sounds skeptical of the government鈥檚 argument
Barrett wasn鈥檛 on the court when the 2020 case was decided so this is her first time diving into the issue as a justice.
She sounded skeptical of the administration鈥檚 argument that the law discriminates because of sex. She was equally skeptical that the court should for the first time declare that discrimination against transgender people should be viewed as similar to bias based on race, sex and national origin, all of which have a special legal status.
Barrett said transgender people have not experienced the same long history of discrimination written into the law in the same way those other groups faced.
鈥淎ll other suspect classes do have that long de jure history of discrimination,鈥� Barrett said, using the Latin phrase for 鈥渁ccording to law.鈥�
Kavanaugh asks about sports participation
Justice Brett Kavanaugh, who has coached his daughters鈥� youth basketball teams, asked about the impact of a ruling on gender-affirming care in that realm.
鈥淚f you prevail here on the standard of review, what would that mean for women and girls sports?鈥� he asked. 鈥淲ould transgender athletes have a constitutional right to participate in girls鈥� sports?鈥�
At least 24 states have adopted restrictions on transgender women and girls in women鈥檚 and girls鈥� sports competitions. There have also been legal challenges to those laws, with mixed verdicts so far.
Prelogar said that鈥檚 a different issue and suggested the court could say in an opinion that sides with her argument that the Tennessee law would not impact the sports issue.
Kavanaugh expresses concern about patients who later change their minds
鈥淗ow do we as a court choose which set of risks is more serious in deciding whether to constitutionalize this whole area?鈥� Kavanaugh said.
Research and reports from individual doctors and clinics suggest that .
Kagan asks if all bans on such care for minors would need to be struck down
Twenty-six states have passed versions of bans.
Prelogar said some might stand up to heightened scrutiny by courts than others.
鈥淲e do think there is a real space for states to regulate here,鈥� Prelogar said.
She pointed to as one that might fare better because it gives a path for treatment for teens who are considered by medical providers to be at risk for self-harm or suicide.
鈥楽ome children suffer incredibly with gender dysphoria鈥�
During questioning by Justice Sonia Sotomayor, Prelogar noted that every major medical organization has supported gender-affirming care for transgender youth, and many have filed briefs supporting the challenge to Tennessee鈥檚 law.
鈥淪ome children suffer incredibly with gender dysphoria, some attempt suicide,鈥� Sotomayor said.
The groups include the American Medical Association and the American Academy of Pediatrics.
Prelogar is focusing on the sex-based nature of Tennessee鈥檚 law
Justices Thomas and Alito both asked about when the states can and cannot have sex-based laws.
鈥淲e think the court just needs to recognize the sex-based classification and send this case back,鈥� Prelogar said, adding that the treatments can be 鈥渃ritical, sometimes lifesaving, care to individuals with severe gender dysphoria.鈥�
Tennessee鈥檚 law bars puberty blockers and hormone treatment only for transgender minors.
A reminder of the Justices to watch
The votes of Chief Justice John Roberts, Justice Neil Gorsuch and Justice Amy Coney Barrett probably will decide this case.
Here鈥檚 a look at where the Justices stand:
Roberts and Gorsuch joined the court鈥檚 liberal justices (Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson) in the 2020 workplace discrimination case won by LGBTQ+ plaintiffs.
Three conservative justices, Samuel Alito, Brett Kavanaugh and Clarence Thomas, dissented on that case.
Barrett has no high court track record on transgender issues, although she votes with the other conservatives in most of the high-profile cases.
If the parties challenging the Tennessee law hope to win, they need at least two conservative justices on their side, along with the three liberal members of the court.
Alito suggests this case diverges from the 2020 case
Alito, who seems likely to vote to uphold the Tennessee ban, is using his questioning of Prelogar to persuade his colleagues that this case is different from the one four years ago where the court sided with LGBTQ+ people.
The Bostock decision in 2020 found that the landmark Civil Rights Act of 1964 banned discrimination against LGBTQ+ people in the workplace.
That 鈥渋nvolved the interpretation of particular language in a particular statute,鈥� Alito said.
This case involves the Constitution鈥檚 equal protection clause, a key provision of the 14th Amendment.
Alito zeroes in on European policies
Alito focused on where European countries stand on gender-affirming care for minors, noting that Finland, Norway and Sweden have policies discouraging it from being available routinely to minors.
Prelogar noted that those countries don鈥檛 go as far as Tennessee鈥檚 outright ban on the treatments for transgender minors.
Alito asks about a UK report that questioned such care for minors
The report asserts there is 鈥渘o good evidence on the long-term outcomes of interventions to manage gender-related distress.鈥�
But advocates for transgender people have a lot of questions about the report.
鈻禩he AP delved into it
Roberts asks whether the issue is better left to elected lawmakers
Chief Justice John Roberts, who is one of the most closely watched justices in this case and previously voted in favor of transgender rights in the workplace, is asking whether this question might be best left to state legislatures.
Prelogar responds that the state does have regulatory powers, but argues Tennessee鈥檚 law is too broad.
Court is in session and arguments are underway
Supreme Court arguments have begun over Tennessee鈥檚 ban on health care for transgender minors. The first attorney to argue is U.S. Solicitor General Elizabeth Prelogar, arguing against the ban.
Tennessee has become an eager adopter of anti-trans legislation over the years
The Republican-controlled Statehouse and GOP Gov. Bill Lee have signed off on legislation banning transgender athletes from participating in girls鈥� sports.
Republicans have also blocked businesses from setting their own rules about bathroom access 鈥� a move that critics have warned targets transgender people.
This year, they placed a ban on the spending of state money on hormone therapy or sex reassignment procedures for prisoners and required public school employees to out transgender students to their parents.
Tennessee鈥檚 Republican lawmakers didn鈥檛 stop at banning care for minors
Shortly after enacting the ban on gender-affirming care, the Republican-dominant Legislature also passed legislation penalizing adults who help minors receive gender-affirming care without parental consent.
Supporters of the proposal couldn鈥檛 point to any examples of minors leaving the state to receive gender-affirming care without their parent鈥檚 consent, but said it was needed anyway to protect children.
Republican Gov. Bill Lee later signed off on the first-in-the-nation proposal.
Tennessee passes more anti-LGBTQ+ legislation than any other state
Over the years, Republican-dominant Tennessee has not only been among the top states to introduce the most anti-LGBTQ+ legislation but also the top state to enact such legislation.
According to the Human Rights Campaign, Tennessee has enacted more anti-LGBTQ+ laws than any other state since 2015, identifying more than 20 bills that advanced out of the Legislature earlier this year. That includes Gov. Bill Lee signing off on bills banning the spending of state money on hormone therapy or sex reassignment procedures for prisoners 鈥� though it would not apply to state inmates currently receiving hormone therapy 鈥� and requiring public school employees to .
Here鈥檚 some of what is at stake
Attorneys for the families challenging Tennessee鈥檚 law have warned a ruling upholding the measure could open the door for more attempts to restrict the care for transgender adults as well as youth.
is the only state that has enacted a law restricting gender-affirming care for transgender adults, though similar restrictions have been attempted in at least two other states.
Ohio Gov. Mike DeWine鈥檚 administration earlier this year proposed and then backed off rules that advocates said would have to gender-affirming care provided by independent clinics and general practitioners.
Missouri鈥檚 Republican attorney general last year pushed for an emergency rule that would have placed limits on care for adults, but state officials abruptly . Missouri later this year enacted a law banning some gender-affirming care for minors.
Most adults still are allowed to access gender-affirming health care under the Missouri law, but Medicaid won鈥檛 cover it.
Today may be the solicitor general鈥檚 last major case
Arguing for the Biden administration is U.S. Solicitor General Elizabeth Prelogar. She鈥檚 the second woman to serve in the role in the country鈥檚 history, and this could be the last major case she argues as solicitor general 鈥� essentially the federal government鈥檚 top lawyer before the Supreme Court.
Matt Rice, Tennessee鈥檚 state solicitor general, will defend the law before the high court. He served in 2019 as a clerk for Justice Clarence Thomas, who dissented from a ruling that term that a landmark civil rights law protects LGBTQ+ workers.
Tennessee isn鈥檛 trying to ban all uses of puberty blockers
The treatments at the heart of today鈥檚 arguments are also used by minors who are not transgender, including intersex people. Tennessee and other states have not tried to ban puberty blockers or hormone treatments for those uses.
Puberty blockers can be used to delay sexual development in children who go through puberty before age 8 or 9. Adolescents with delayed puberty can be treated with hormones.
Justice Clarence Thomas will ask the first question
was famously silent during arguments for years at a time because he said he relied on written briefs and thought his colleagues interrupted too much.
But when the court started hearing cases remotely during the COVID-19 pandemic, the justices altered their practice and asked questions one by one, instead of the usual free-for-all. Even after they returned to the courtroom, the justices have informally agreed to allow Thomas, the longest-serving member of the court, to go first.
He has asked questions at every argument session he鈥檚 attended since the court鈥檚 first remote arguments in May 2020.
How long will arguments last?
Don鈥檛 be fooled by the hour the court has allotted. The session could easily go twice as long.
Gone are the days when Chief Justice William Rehnquist would cut lawyers off mid-sentence when the red light went on at their podium. Chief Justice John Roberts was more lenient even before the coronavirus pandemic forced changes to the structure of the arguments.
The Biden administration is supporting the challenge to Tennessee's law
But the administration鈥檚 position seems likely to change .
He campaigned against transgender rights, using demeaning language and misrepresentations as he pledged to remove 鈥渢ransgender insanity鈥� in schools and restrict participation in women鈥檚 sports.
A father and his and transgender daughter travel out of state to receive care
Brian Williams of Nashville, Tennessee, says his transgender daughter, L.W., has to travel to another state to receive the health care that 鈥渨e and her doctors know is right for her.鈥�
Williams, speaking on a Zoom call arranged by the legal team representing the family and others at the Supreme Court, said L.W. approached him and his wife, Samantha, several years ago to share 鈥渉onestly and openly her pain鈥� over her gender identity.
She began taking puberty-blocking drugs at age 13 and started hormone therapy a year later, Williams says.
Today, her father says, she is a 鈥�16-year-old planning for her future, making her own music and looking at colleges.鈥�
Williams says he鈥檚 not expecting people to understand everything about the family. But he asks others to 鈥渙pen your hearts and listen.鈥�
What are Biden and Trump鈥檚 stances on the case?
President-elect backed a national ban on such care as part of his 2024 campaign in which he transgender people. Trump and his allies also promised to roll back for transgender people throughout the campaign.
Meanwhile, in its waning days, the Biden administration, along with families of transgender adolescents, as unlawful sex discrimination and protect the constitutional rights of vulnerable Americans.
Earlier this year, the administration and Democrat-led states extended protections for transgender people, including that seeks to protect transgender students.
The scene outside the Supreme Court
People on both sides of the issue are gathered outside the court for demonstrations that are increasing in volume ahead of arguments.
They carried signs reading 鈥淐hampion God鈥檚 Design鈥� and 鈥淜ids Health Matters鈥� on one side and 鈥淔ight like a Mother for Trans Rights鈥� and 鈥淔reedom to be Ourselves鈥� on the other.
Speeches and music filled the air on the sidewalk outside the court鈥檚 marble steps.
More than 500 bills restricting the rights of LGBTQ+ people were introduced in statehouses this year
Multiple bills related to transgender youth have already been filed in Texas鈥� legislature ahead of its session next year.
The proposals include a bill that would make it easier to sue providers of gender-affirming medical care for children.
Other bills include restrictions on which public restrooms transgender people can use, and limits on how topics related to sexual orientation and gender identity are taught in schools.
While this case is about a Tennessee law, it holds national significance
At least 26 states have adopted laws banning gender-affirming medical care for transgender minors. Federal judges in Arkansas and Florida have struck down the bans in those states as unconstitutional, though an appeals court has put the Florida ruling on hold. The ban in New Hampshire is to take effect on Jan. 1.
Several Democratic-controlled states have policies seeking to protect access to gender-affirming care.
Additionally, at least 24 states have bans barring transgender women and girls from competing in certain women鈥檚 and girls鈥� sports competitions. And at least 11 have laws barring transgender women and girls from using girls鈥� and women鈥檚 bathrooms at public schools 鈥� and in some cases, in other government facilities.
Level of scrutiny: A legal issue that could play a decisive role in the case
Most laws are reviewed and upheld under the lowest level of scrutiny, known as rational basis review. Indeed, the federal appeals court in Cincinnati that allowed the Tennessee law to be enforced held that lawmakers acted rationally in adopting the law to address the risks they perceived in gender-affirming care for minors.
But when discrimination is present, judges take a closer look.
Sex discrimination gets heightened scrutiny, which requires states to identify an important objective and show that the law helps accomplish it. Racial discrimination, not at issue here, is reviewed under strict scrutiny 鈥� the highest level 鈥� and laws rarely survive such a demanding examination.
The votes of Roberts, Gorsuch and Coney Barrett probably will decide this case
Roberts and Gorsuch joined the court鈥檚 liberal justices in the 2020 workplace discrimination case won by LGBTQ+ plaintiffs. Three conservative justices, Samuel Alito, Brett Kavanaugh and Clarence Thomas, dissented.
If the parties challenging the Tennessee law hope to win, they need at least two conservative justices on their side, along with the three liberal members of the court. Barrett has no track record on transgender issues, although she votes with the other conservatives in most of the high-profile cases.
When is a decision expected on this case?
The Supreme Court almost always issues its decisions by early summer, usually before the end of June. The transgender health case could be one of the last cases decided, which is typical of highly contentious issues. One additional potential cause for delay is the Trump administration could weigh in soon after he takes office. It鈥檚 not clear how that might affect the case.
The first transgender attorney ever to argue before the Supreme Court
Chase Strangio will be the first openly transgender attorney to argue before the nation鈥檚 highest court, representing families who say Tennessee鈥檚 ban on health care for transgender minors leaves their children terrified about the future.
Strangio will bring months of intense legal preparation to the case as well as hard-won lessons from his own experience.
鈥淚 am able to do my job because I have had this health care that transformed and, frankly, saved my life,鈥� he said. 鈥淚 am a testament to the fact that we live among everyone.鈥�
Strangio grew up outside of Boston and came out as trans when he was in law school. Now 42, he鈥檚 an attorney whose legal career has included representing former Army intelligence analyst , challenging a ban on transgender people and helping win an LGBTQ+ at the Supreme Court. He鈥檚 also the father of a 12-year-old, the son of a father who supports Trump, and has a close relationship with his Army veteran brother.
鈻� Read more about Strangio and
When was the last time the Supreme Court took up a case on transgender rights?
The Supreme Court鈥檚 only other major case on transgender rights was in 2020 when the court ruled that workplace discrimination against LGBTQ+ people was sex discrimination in violation of the federal civil rights law commonly known as Title VII.
The court concluded in separate cases involving a gay man and a transgender woman that they were discriminated against because of their sex. Justice Neil Gorsuch, an appointee of Donald Trump鈥檚 in his first term in the White House, wrote the 6-3 opinion for the court. Chief Justice John Roberts was the only other conservative member of the court in the majority.
What is being argued before the court?
The nation鈥檚 top court will be weighing whether violates the equal protection clause of the 14th Amendment, requiring that people in similar circumstances be treated the same under the law. Both sides in the case claim they are acting to protect minors from harm.
Transgender attorney Chase Strangio will represent families who say Tennessee鈥檚 ban leaves them terrified for the future and that access to this kind of care is life-saving.
Tennessee, meanwhile, will argue before the Supreme Court that treatments like puberty blockers and hormones carry risks for young people and its law protects them from making treatment decisions prematurely.
The Associated Press
