Most likely, we will have to wait for this time next year to see how this one comes out.
The Supreme Court took seven cases this morning to hear next year, including a long-running lawsuit by Holocaust survivors against Hungary for expropriation of property. The big one is United States v. Skrmetti, a Biden administration challenge on equal-protection grounds to Tennessee and Kentucky laws that restrict the use of potentially irreversible gender-transition treatments such as transgender surgeries and puberty blockers on minors.
I explained, back when the lawsuit was filed in May 2023 as part of Merrick Garland’s campaign to stamp out self-government in the states on any issue where states dissent from cultural progressivism, why it was nuts:
The legislature reached its own conclusions about whether the treatments at issue were medically supported or abusive to children. . . . Are these really interests no legislature is permitted to consider? The complaint cites the American Psychiatric Association’s Diagnostic & Statistical Manual of Mental Disorders (“DSM-V-TR”) as “an authoritative source for psychiatric conditions,” ignoring how often the DSM has been revised — and politicized — over the years. Of course, unlike the Tennessee legislature, the authors of the DSM are neither representative of, nor accountable to, a democratic populace. Moreover, on transgender issues, there is a significant divide between the American medical establishment and the European medical establishment. I’m as rah-rah USA as the next guy, but when that happens, it’s at least reasonable to allow the democratic process to consider the possibility that the Americans are wrong. Once upon a time, the American medical profession refused to accept the European consensus that doctors should wash their hands.
We may get a sense of how this Court resolves this question soon in this term’s big abortion case, Moyle v. United States, in which the Biden administration and the liberal justices argue that a federal statute puts an unelected national “medical consensus” above the elected legislatures in determining the standards for emergency-room care. Then again, Moyle is a statutory case rather than a constitutional one, and it might well be resolved on other grounds.
In September, a divided panel of the U.S. Court of Appeals for the Sixth Circuit upheld the laws in a well-reasoned opinion by Chief Judge Jeffrey Sutton and joined by Judge Amul Thapar. As Sutton wrote:
The novelty of these treatments also undercuts any claim of animus. Physicians began offering specialized care for transgender minors only in the 1990s, and the first clinic to treat transgender youth in America opened around 2007. . . . The unsettled, developing, in truth still experimental, nature of treatments in this area surely permits more than one policy approach, and the Constitution does not favor one over the other. . . . Plenty of rational bases exist for these laws, with or without evidence. Rational basis review requires only the possibility of a rational classification for a law. . . . It does not generally turn on after-the-fact evidentiary debates. . . . Kentucky and Tennessee offered considerable evidence about the risks of these treatments and the flaws in existing research. Administering puberty blockers to prevent pubertal development can cause diminished bone density, infertility, and sexual dysfunction. Introducing high doses of testosterone to female minors increases the risk of erythrocytosis, myocardial infarction, liver dysfunction, coronary artery disease, cerebrovascular disease, hypertension, and breast and uterine cancer. And giving young males high amounts of estrogen can cause sexual dysfunction and increases the risk of macroprolactinoma, coronary artery disease, cerebrovascular disease, cholelithiasis, and hypertriglyceridemia. The challengers disagree, citing experts of their own. But no one disputes that these treatments carry risks or that the evidence supporting their use is far from conclusive. . . .
This is a relatively new diagnosis with ever-shifting approaches to care over the last decade or two. Under these circumstances, it is difficult for anyone to be sure about predicting the long-term consequences of abandoning age limits of any sort for these treatments. That is precisely the kind of situation in which life-tenured judges construing a difficult-to-amend Constitution should be humble and careful about announcing new substantive due process or equal protection rights that limit accountable elected officials from sorting out these medical, social, and policy challenges.
There is no circuit split on this question, but there is a circuit split on whether “transgender status” is a protected classification for constitutional purposes — and the Biden administration’s complaint is premised upon the argument that this takes the case out of rational basis review and requires a heightened standard of scrutiny for the Tennessee and Kentucky laws. Bostock v. Clayton County was only a statutory case, although Justice Samuel Alito warned in his dissent at the time that “the Court’s decision may exert a gravitational pull in constitutional cases.” Also, the 6–3 Bostock majority included Justices Stephen Breyer and Ruth Bader Ginsburg, who have since been replaced by Justices Amy Coney Barrett and Ketanji Brown Jackson; Barrett, at least, is less likely to go in that direction.
The Court apparently agonized about taking this case. John Elwood at SCOTUSBlog notes that it was “rescheduled before the Mar. 15, Mar. 22, Mar. 28, Apr. 12, Apr. 19, Apr. 26 and May 9 conferences; relisted after the May 16, May 23, May 30, June 6 and June 13 conferences” before finally being granted at the conference held on June 20 (the results of which were announced this morning). The timeline of when it is heard could matter; if Donald Trump wins the election and the case is still pending after January 20, the Justice Department likely would switch positions on the case. Most likely, we will have to wait for this time next year to see how this one comes out.
This post has been corrected since publication to reflect that Justice Jackson, not Justice Kavanaugh, replaced Justice Breyer.