(The Center Square) – The U.S. Supreme Court on Wednesday began weighing its role in determining whether a Tennessee law banning medication to treat gender dysphoria for minors violates the equal protection clause of the 14th Amendment.
The court heard oral arguments on the law passed by the Tennessee General Assembly in 2023 and signed by Gov. Bill Lee. The state is one of at least 26 with similar restrictions or bans and the first to have litigation against it reach the nation's highest court.
The high court is split 6-3 with conservatives in the majority.
The U.S. Department of Justice, the American Civil Liberties Union and others argue the law violates the 14th Amendment. Tennessee law allows puberty blockers and hormone treatments for purposes other than treatment on minors.
The question before the court is what is its role, Justice Brett Kavanaugh said.
"If the constitution doesn't take sides, if there's strong, forceful, scientific policy arguments on both sides in a situation like this, why isn't best to leave it to the democratic process?" Kavanaugh said.
U.S. Solicitor General Elizabeth Prelogar, representing the Biden administration, said she understood the state's need to regulate and take into concerns about adolescent health.
"But when you look at how this law actually operates, what it is doing is denying individual plaintiffs the ability to access medications on the basis of their sex," Prelogar said. "And that doesn't mean that the states are disabled from taking into account the actual biological differences between males and females, but that has to be channeled to the highest scrutiny stage. And I think that there would be a real danger in this court saying, looking ahead essentially saying there might be benign justifications or we think states should have some ability in this regard to overlook the … sex classification in this statute."
Tennessee Attorney General Jonathan Skrmetti said it should be up to the General Assembly.
“Tennessee’s General Assembly reviewed the medical evidence, as well as the evidence-based decisions of European countries that restricted these procedures, and ultimately passed this bipartisan law prohibiting irreversible medical interventions," Skrmetti said in a statement after oral arguments ended. "The plaintiffs in this case are asking the court to take the power to regulate the practice of medicine away from the people’s elected representatives and vest it in unaccountable judges.”
Justice Sonia Sotomayor struck back against claims by Tennessee Solicitor General Michael Rice that the law is not tied to sex and that the treatments could cause harm to minors.
"There is always going to be a percentage of the population under any medical treatment that is going to suffer harm," Sotomayor said. "So the question in my mind is not do policymakers decide whether one person's life is more valuable than the millions of others who get relief from this treatment, the question is can you stop one sex from the other."
Justice Samuel Alito referred to the United Kingdom and Sweden, which have instituted bans on puberty blockers in some situations.
"I, of course acknowledge, Justice Alito, that there is a lot of debate happening here and abroad about the proper model of deliver of this care and exactly when adolescents should receive it and how to identify the adolescents for whom it would be helpful," Prelogar said. "But I stand by that there is a consensus that these treatments can be medically necessary for some adolescents and that shouldn't matter what source you look at."
Prelogar said the court could issue a narrow ruling, pointing the court to a West Virginia law that bans gender-affirming care for minors unless there is a suicide risk.
The decision from the court is not expected before summer.
