Supreme Court upholds Tennessee law banning gender-affirming care for transgender minors

Amna Nawaz:

Welcome to the "News Hour."

The Supreme Court is upholding Tennessee's ban on gender-affirming care for transgender minors. In a 6-3 decision today, the justices ruled that the state's law, which prevents children from accessing treatments like puberty blockers or hormone therapy, did not violate the Constitution's Equal Protection Clause.

Geoff Bennett:

In the court's majority opinion, Chief Justice John Roberts wrote: "The voices in these debates raise serious concerns. The implications for all are profound."

But he went on to add that: "The court will leave the issue to the people, their elected representatives, and the democratic process."

Tennessee is one of 27 states that have enacted some form of legislation limiting gender-affirming care for minors. An advocates say today's ruling is a huge setback for trans rights across the country.

John Yang has more.

John Yang:

The challenge to the Tennessee law came from three transgender teens, their parents, and a physician. The ACLU said today's ruling was a devastating loss for transgender people and creates a class of people who politicians believe deserve health care and a class of people who do not.

Tennessee Attorney General Jonathan Skrmetti, who defended the law in court, said the decision "recognizes that the Constitution lets us fulfill society's highest calling, protecting our kids."

PBS News Supreme Court analyst Amy Howe is co-founder of SCOTUSblog. And Lindsey Dawson is director of LGBTQ health policy at KFF.

Welcome to you both.

Amy, let's start with you and talk about what the justices said today.

Now, in 2019, this court said that transgender people had workplace protections against discrimination. Why a different outcome today?

Amy Howe:

We don't know exactly. And that was a 6-3 decision as well. Justice Neil Gorsuch, who was in the majority today in upholding Tennessee's ban, was the author of that decision. The chief justice, John Roberts, also joined that decision.

The court's dynamics have changed. Obviously, Justice Ruth Bader Ginsburg died in 2020 and was replaced by Justice Amy Coney Barrett. But that doesn't explain exactly what was going on. One of the things that may well be going on, the court pointed to both Tennessee's interest, it said, in protecting children and then to the — what Tennessee describes as the uncertainty and the risk surrounding these kinds of treatments for transgender children.

John Yang:

Lindsey, we have been following a family in Texas. We have given them pseudonyms to protect their identity. Texas, of course, bans gender-affirming care for minors. So they have had to go to New Mexico to get hormone therapy for their 14-year-old trans daughter, Leah.

After the court ruled, we spoke to Mary, Leah's mother. Listen to what she had to say.

Mary, Mother of Leah: This just kind of gives states the green light to continue to ban this gender-affirming care. We're lucky that we're able to access this care in New Mexico right now, but I don't know what that's going to mean in the future. I don't know if the current sanctuary states are going to hold up what they're doing or not.

The first thought is just look for another sanctuary city, but, I mean, if everybody starts following suit, then we're just stuck. I mean, I don't know what that would mean for us. Every time we go, we get another six months of meds and just kind of hold on to that and hope that that's enough.

John Yang:

Are there a lot of families like Leah and her family across the country? What's sort of the general impact on — across the country?

Lindsey Dawson, Director of LGBTQ Health Policy, KFF: Sure.

So, because the Supreme Court decided that the Tennessee law does not violate the Constitution's Equal Protection Clause, that means that states with bans in place, like Texas or like Tennessee, can continue. In states where there are no bans, there is no restriction, so that those minors can still access care.

But what you're faced with is a patchwork of access to gender-affirming care, just as we see with this family. And if you're fortunate enough to be able to cross the state line and get access to care somewhere else, then that's wonderful for your family, but many families don't have the privilege to be able to do that.

John Yang:

Amy, Justice Sotomayor wrote the dissenting opinion for herself and Justice Kagan and Jackson.

She noted that major medical associations say that gender-affirming care is appropriate and necessary. And she said that: "The majority authorizes without second thought untold harm to transgender children and the parents and families who love them."

What was your takeaway from that dissent?

Amy Howe:

So she read her dissent from the bench, which is something that justices only do when they feel really strongly and they feel that the majority really got it wrong.

It took about 15 minutes and she concluded with kind of an unusual statement. She said, "in sadness," which is not something we hear all the time, even in dissents from the bench. And then she said, "I dissent," without including the respectfully that justices usually include. So it was something that she felt very strongly about.

Justice Ketanji Brown Jackson joined all of her dissent. Justice Elena Kagan joined most of it. And her argument was really that the court got it very wrong. You referenced the earlier case involving LGBT protections, protections under federal employment discrimination law for LGBTQ workers.

And she said, in essence, this case is just like that one, for all of the reasons that the court held in that case, Bostock, that LGBTQ workers are entitled to protections under federal employment discrimination laws, this Tennessee law violates the Equal Protection Clause of the Constitution.

John Yang:

Lindsey, where does this fit in with the Trump administrations and the congressional Republicans and Republicans across the country, their drive or their effort to limit the rights of transgender people?

Lindsey Dawson:

So what's been happening in states that have been seeking to restrict this care is similar to what we have been seeing in the Trump administration.

The Trump administration campaigned on restricting access to care for transgender youth and, since taking office and since the early days of the presidency in January, have sought to take actions to restrict this care further. So it is really in line with those efforts as this issue has become more politicized and polarized.

John Yang:

Amy, Justice Barrett wrote a concurring opinion in which she stressed that she was writing to emphasize that she does not believe that transgender people are a suspect class, that they do not deserve heightened scrutiny in cases.

What does that do to the drive, the work in courts to get to protect transgender rights?

Amy Howe:

So that was a separate opinion that was joined by Justice Clarence Thomas. None of the other justices joined that.

The court, in the chief justice's majority opinion said, we don't need to address that question. We have never held that. We're not deciding it now.

But it certainly is something, I think, that will lend itself to other challenges to other laws affecting transgender children, and then also possibly affecting other transgender people. She mentioned a couple of examples in particular. She said that laws affecting transgender people, because transgender people are not a suspect class, they should not be subject to heightened scrutiny.

She said courts shouldn't be weighing in. Legislatures should be making decisions on things involving like restrooms and boys and girls sports teams. And so you do suspect that when these issues come to the Supreme Court, as they likely are to come in months or the years ahead, that at least Justice Barrett and Justice Thomas are going to be skeptical of those challenges as well.

John Yang:

Amy Howe, Lindsey Dawson, thank you both very much.

Amy Howe:

Thank you.

Lindsey Dawson:

Thanks for having me.