The Supreme Court appeared likely to back a divisive Tennessee law that bans gender-affirming care for minors after more than two hours of oral arguments on Wednesday in which the court delved into a culture war battle that has become even more politically fraught since the election.
The transgender care case is the most significant matter to come before the Supreme Court this term – and it has become even more extraordinary since former President Donald Trump was elected to a second term, in part on a campaign to end the “transgender craziness.”
More than 110,000 teenagers live in states where restrictions on transgender care exist, according to the Williams Institute at UCLA School of Law.
Here are some key takeaways from Wednesday’s historic arguments:
Roberts, Kavanaugh wary of courts second-guessing legislatures: On multiple occasions, Chief Justice John Roberts and Justice Brett Kavanaugh, two of the court’s most important votes, suggested that the issue of gender-affirming medical treatments for minors should be left to legislatures to decide and that the courts shouldn’t play a role. Roberts’ skepticism toward courts getting involved was a particularly worrying sign for the challengers to the Tennessee ban, as Roberts had previously sided with federal transgender employees in a major 2020 case finding those employees are covered under the workplace discrimination protections of the Civil Rights Act.
Alito and other conservatives focus on “detransitioners”: Several of the court’s conservatives appeared heavily focused on so-called detransitioners – individuals who regret receiving gender-affirming treatments earlier in their lives – as they expressed skepticism toward arguments that transgender Americans should receive heightened protection under the law. Justice Samuel Alito, in particular, was interested in the question of whether transgender status is “immutable.” Historically, the court has considered immutability to be a key aspect of the characteristics of a group deserving of more protection.
Kavanaugh worried about girls’ sports: Kavanaugh repeatedly raised concerns about the impact the court’s decision may have on girls’ sports – an issue that has already worked its way up to the Supreme Court in several cases. “If you prevail here,” Kavanaugh pressed US Solicitor General Elizabeth Prelogar, “what would that mean for women’s and girls’ sports in particular?” It was notable that Kavanaugh was raising that question. The Trump nominee has discussed his efforts coaching basketball for his daughters’ teams, one of which even came to his confirmation hearing in 2018.
Gorsuch, a key vote in transgender case, remains silent: One of the most notable twists in the hours of speaking was a conservative justice who decided to say nothing at all: Neil Gorsuch. Gorsuch is considered a key vote in the case because he wrote the majority opinion in an unexpected decision four years ago in Bostock v. Clayton County that protected transgender employees from discrimination in the workplace. He was cheered by surprised LGBTQ+ advocates on the left and roundly criticized by conservatives – including several of his colleagues on the bench.
Read more key takeaways from the oral arguments.
