The Supreme Court hears argument in a case involving gender-affirming care for minors in Tennessee.
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Front and center at the Supreme Court on Wednesday is the battle over the rights of transgender children. At issue is a state law in Tennessee that blocks minors from accessing gender-affirming care in the state.
In the last three years, more than two dozen states have enacted laws that ban puberty blockers, hormones and other treatments for minors seeking gender-affirming care. The issue has become highly politicized, as anyone who watched election ads this fall can attest.
Challenging Tennessee’s law in the Supreme Court are three trans kids and their parents.
LW, as she is known in legal documents, is one of them.
“People make assumptions. They say it’s just a phase, because they don’t know what it’s like,” LW says of her experience. “It can certainly feel pretty hopeless,” especially given “how slow” the process is.
Her mother, Samantha Williams, partially disagrees, stressing the need for caution.
“We kept saying we wouldn’t be good parents if we weren’t taking our time,” she says.
It took nearly a year for LW to get the go ahead, but LW’s mom says that at 15, her once troubled child is an easy and happy teenager, now that she is getting access to treatments for gender dysphoria. The medications, however, are now illegal for minors in Tennessee where the family lives, so they have to drive out of state 10 hours round trip for LW to get the drugs for her transition.
The Tennessee law
Tennessee State Sen. Jack Johnson introduced the challenged bill, which bans access to hormones, puberty blockers, and other treatments for trans kids in Tennessee. For Sen. Johnson, the law is just another example of the state exercising its regulatory power.
“You can’t get a tattoo in Tennessee unless you’re 18. You can’t smoke. You can’t drink,” he observes. Tennessee regulates “a number of different types of medical procedures,” Johnson says, adding that “it felt like this was the best public policy to prevent kids form suffering from irreversible consequences, things that cannot be undone.”
Those challenging the Tennessee law counter that the ban violates the Constitution’s guarantee to equal protection of the law. The law bars access to treatment for kids who want to transition from their sex assigned at birth, but permits those same medications to be used when treating minors suffering from other conditions, like endometriosis or early-onset puberty.
ACLU lawyer Chase Strangio, the first openly trans lawyer to argue in front of the Supreme Court, represents the kids and their parents. He argues that “these are very commonly used medications,” and Tennessee “bans them for one and only one purpose.”
Strangio says that the language of the statute telegraphs the real purpose of the ban. Specifically, the statute encourages minors to “appreciate their sex” and bans treatments that “might encourage minors to be disdainful of their sex.”
“The government of Tennessee is displacing the decision-making of loving parents,” who follow the “recommendations of doctors,” Strangio says. “At the end of the day, the law is tailored to one and only one interest, which is to enforce Tennessee’s preference that adolescents conform to their birth sex.”
Although the Tennessee legislature did hear testimony from individual doctors in support of the ban, all the major medical associations that deal with gender dysphoria have filed briefs supporting these treatments for trans kids, including the American Medical Association, the American Academy of Pediatrics and the American Psychological Association.
Long-term impact
But critics of the treatments say the science is very unsettled in terms of long-term implications.
“You’ve got countries in Western Europe that were far ahead of us in terms of these types of medications,” says Sen. Johnson. “They are pulling back because they’ve had a longer runway, and they’re seeing that the adverse effects of some of these medications far outweigh any benefit that they have.”
John Bursch of the conservative Christian legal advocacy group Alliance Defending Freedom echoes that sentiment, noting that some Western European and Scandinavian countries have not only been at this longer, they have national health care systems that cover everyone.
“They can track a patient from birth until death. And so if someone gets cross-sex hormones for the purpose of a gender change at age 15, they can look at how they’re doing at age 20,25, 45 65 and see what the outcomes were,” Bursch notes.
These characterizations of European studies are highly controversial, but the drugs are still accessible in a research setting, and access has not been terminated for any minor already using the medications.
There is much about this issue that remains in dispute. To take just one example, parents Samantha and Brian Williams maintain that the law not only bans treatments, it bars parents and children from even consulting doctors about these treatments. The law’s supporters deny that claim to varying degrees. Sen. Johnson says that the “legislative intent does not prohibit or prevent any type of conversation.” Bursch, on the other hand, says that a family could generally have a conversation about the pros and cons of puberty blockers and hormone treatment, “as long as the doctor was not encouraging someone to engage in an illegal procedure.”
NPR put the question to Vanderbilt University Medical Center, which until the law was passed was the major center in Tennessee for providing gender-affirming care for minors. The center took three days to ponder the question, ultimately declining to comment.
Vanderbilt does still provide gender-affirming care for adult patients. But lawyers for the trans kids argue that if states can ban gender dysphoria treatments for minors, the next step will be to ban such treatments for adults, too.
Sen. Johnson, the sponsor of the Tennessee bill, sees things very differently.
“We want to love these kids,” he says. “But let’s see if we can get them to their 18th birthday, which is when we recognize people as an adult.”
The court is expected to make a decision in the case by the summer.
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