Today the Supreme Court granted the Biden administration’s certioriari petition in United States v. Skrmetti, which seeks review of an excellent Sixth Circuit ruling that held that the state of Tennessee could enforce its law that prohibits healthcare providers from providing certain procedures as treatment for minors with gender dysphoria. The prohibited procedures include surgically removing or modifying tissues, cavities, or organs (e.g., chopping off breasts or genitals) and administering puberty blockers or cross-sex hormones. Sixth Circuit chief judge Jeffrey Sutton, one of the most respected judges in the country, wrote the majority opinion, which another outstanding judge, Amul Thapar, joined.
Some quick observations:
1. The Court granted only the petition of the Biden administration (which intervened below), not the petition of the plaintiffs. The Biden administration’s petition presents only the question whether the Tennessee law violates the Equal Protection Clause of the Fourteenth Amendment. (Its petition recommended that the Court not grant plaintiffs’ request for review of the Sixth Circuit’s Due Process Clause holding.)
2. I expect that the Court will affirm the Sixth Circuit, essentially for the reasons set forth by Sutton. Among other things, recent developments have amply confirmed the Tennessee legislature’s concerns that (in Sutton’s paraphrase, partly quoting the law’s findings) the “long-term harms of these treatments [for minors with gender dysphoria], some potentially irreversible, remain unknown and outweigh any near-term benefits because the treatments are ‘experimental in nature and not supported by high-quality, long-term medical studies.’”
The Cass Review—a 388-page report commissioned by England’s National Health Service—bluntly concludes that there is “remarkably weak evidence” that might weigh in favor of medical interventions on children and young people: “The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.”
The report known as the WPATH Files presents extensive leaks from the World Professional Association for Transgender Health (WPATH), the group that has somehow been treated as authoritative on medical treatment for gender dysphoria. The report concludes that WPATH “is not engaged in a scientific quest to discover the best possible way to help vulnerable individuals who are suffering from gender-related distress” and is instead “a fringe group of activist clinicians and researchers masquerading as a medical group, advocating for a reckless hormonal and surgical experiment to be performed on some of the most vulnerable members of society.”
3. The case seems likely to be argued in November, right around the presidential election. There could be an interesting wrinkle if Donald Trump is elected president. Specifically, on taking office, he might direct the Department of Justice to abandon its position and to support Tennessee. On the other hand, his legal team might judge that the oral argument has gone so well for Tennessee that it’s better to have the Court rule in the case.
Disclosure: Judge Sutton and I clerked together for Justice Scalia more than three decades ago and have remained friends since, and we co-edited The Essential Scalia.