What Went Down at the Supreme Court Hearing on Tennessee’s Ban on Pediatric Gender Medicine

Is banning puberty blockers for minors the same as banning interracial marriage for adults? Why should girls be forced to develop breasts? Are powerful drugs that can cause infertility really so different from aspirin?

Those were some of the questions posed to Matthew Rice, the solicitor general of Tennessee, as he defended his state’s ban on pediatric gender medicine before the Supreme Court on Wednesday. The case, United States v. Skrmetti, could decide whether similar bans in another 25 states are constitutional. While the Court’s liberal justices seemed quite convinced that the answer was no, the conservative majority appeared inclined to uphold the law.

If they do, the dissents may be blistering. Justices Ketanji Brown Jackson and Sonia Sotomayor seemed particularly incensed by the law, arguing that it was a form of discrimination and, in Jackson’s case, comparing it to Jim Crow.

Tennessee’s law is “sort of the same thing” as bans on interracial marriage, Jackson suggested. “I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases.”

In another exchange about the risks of puberty blockers and cross-sex hormones, Sotomayor made little effort to hide her exasperation.

“Every medical treatment has a risk,” she said, interrupting Rice. “Even aspirin.”

The Court’s conservative majority seemed considerably more sympathetic to the law. Aside from Justice Neil Gorsuch, who remained silent during oral arguments, all of the right-of-center judges expressed some degree of skepticism toward the legal challenge brought by the Biden administration, which has argued the ban amounts to unconstitutional sex discrimination.

They noted that some European countries have restricted access to puberty blockers amid growing doubts about their efficacy. And they questioned whether it was wise, given that uncertainty, for courts to wade into a thorny debate about the harms and benefits of unproven treatments.

“Doesn’t that make a stronger case for us to leave those determinations to the legislative bodies rather than trying to determine them for ourselves?” Chief Justice John Roberts asked.

The back-and-forth offered a window into the philosophical stakes of America’s gender debate, which has pit prudential arguments about medical risk against the absolutist logic of civil rights.

Passed in 2023, the Tennessee law bans puberty blockers and cross-sex hormones for minors seeking to transition. It does not, however, bar those drugs from being used to treat precocious puberty or hormonal deficits—meaning that a girl who identifies as transgender will be unable to access the same drugs as a boy who does not.

That discrepancy was at the crux of the argument made by Elizabeth Prelogar, the U.S. solicitor general, who represented the Biden administration before the High Court on Wednesday.

“Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can,” she said. “If you change the individual sex, it changes the result. That’s a facial sex classification—full stop.”

Banning pediatric gender medicine, Prelogar added, would be like banning boys from wearing dresses or girls from wearing pants.

“It’s no different than saying you can’t dress inconsistent with your sex,” she told Justice Samuel Alito.

Sotomayor made a version of that argument when, in an exchange with Rice, she compared precocious puberty in boys to gender dysphoria in girls.

If a boy has “unwanted hair” because he is going through puberty too early, he can access puberty blockers, Sotomayor said. But if a girl with gender dysphoria has “unwanted breasts,” she can’t.

“That’s the sex-based difference,” Sotomayor said. “The medical condition is the same.”

The plaintiffs challenging the law are three families with children who identify as transgender, as well as a Memphis-based gynecologist, Susan Lacy, who was providing gender treatments to minors before the law went into effect. They are represented by Chase Strangio, an attorney at the American Civil Liberties Union, who argued alongside Prelogar.

The case comes as many European nations have restricted, but not outright banned, gender medicine for minors, based in part on evidence reviews like the Cass Report that found little evidence to support the use of puberty blockers.

The justices repeatedly pressed Prelogar and Strangio on those findings. Justice Brett Kavanaugh, who also raised concerns about girls’ sports, said they were a reason to exercise restraint.

“It strikes me as a pretty heavy yellow light, if not red light, for this Court to come in, the nine of us, and to constitutionalize the whole area when the rest of the world, or at least the people who the countries that have been at the forefront of this are pumping the brakes on this kind of treatment,” Justice Brett Kavanaugh said. “If there’s strong, forceful scientific policy arguments on both sides in a situation like this, why isn’t it best to leave it to the democratic process?”