EDITOR’S NOTE: Mike Whitehead is an attorney in private practice in Lee’s Summit, Mo., and serves on the Board of Directors for Alliance Defending Freedom. The opinions of the author are his own. This article is not legal advice, but is provided for education and information only.
WASHINGTON, D.C. – The U.S. Supreme Court considered on Dec. 4 whether to uphold a Tennessee law protecting children from high-risk medicines that alter their bodies to try to make them look like the opposite sex.
The Biden-Harris Administration promotes such procedures and will urge the Court to prevent states from regulating the medical profession as to the use of these drugs for kids. The federal government argues that Tennessee’s law denying access to transitioning drugs for minors violates the Equal Protection Clause by discriminating against transgender minors based on their sex and transgender status.
Many observers say the case, U.S. v. Skrmetti, will be the most important case this term in the culture clash between those selling so-called “trans-gender” drugs and surgeries and those safeguarding vulnerable children from bad science and dangerous experiments with puberty blockers, cross-sex hormones and mutilating surgeries that often do irreversible harm to the young bodies of minor children. The Tennessee law bans gender surgeries for minors, as well as the drugs, but the surgery issue is not before the Court in this case.
Currently, 26 states have laws that regulate these drugs and procedures.
European countries like Sweden, Finland, Norway, and the United Kingdom have each concluded that the risks of these experimental procedures often outweigh their benefits.
Early in the hearing, Dec. 4, Chief Justice Roberts noted that European countries were moving away from these treatments, due to evidence of adverse consequences and lack of evidence of positive benefits. He questioned whether it would be wise for the courts to intervene as scientific referees over the decisions of state legislatures grappling with evolving scientific evidence.
Justice Brett Kavanaugh asked similar questions about whether the Supreme Court should be taking sides on issues of hotly debated and evolving science.
The Missouri Legislature passed a law in 2023, the Save Adolescents from Experimentation (SAFE) Act. It restricted the ability of medical practitioners to perform gender transition surgeries on minors and to use puberty-blocking drugs or cross-sex hormones “for the purpose of a gender transition for any individual under eighteen years of age” (§ 191.1720.3.4 RSMo). This law has a sunset provision and will expire in August of 2027 unless renewed by the General Assembly.
When the law was challenged in court by activists, the Cole County Circuit Court upheld SB 49 in the case of Noe v. Parson. A final judgment was entered just this week, on Nov. 25, and can be viewed here.
In the U.S. Supreme Court, Missouri Attorney General Andrew Bailey filed an amicus curiae brief noting that Missouri was the first State in the nation to prevail in trial court against a challenge to these kinds of laws. Bailey informed SCOTUS about the Noe case and cited certain crucial evidence that was introduced. Affidavit testimony from a Missouri whistleblower revealed that transgender centers have often bullied parents into “consenting” and have lied to parents and the public about their activities. In the amicus brief, the whistleblower is quoted: “The meeting was brief and began on a shocking note. In front of my son, the therapist said, ‘Do you want a dead son or a live daughter?’” Thus, Missouri has a significant interest in the Court’s ruling in the Skrmetti case, Bailey argued.
Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh and Barrett seem to favor a result of affirming the 6th Circuit Court of Appeals by upholding the Tennessee law. These conservative justices seemed to agree that the Court should not “constitutionalize” this area, but should leave it to the political process. Liberal Justices Kagan, Sotomayor and Jackson seemed solidly aligned against the state law and the 6th Circuit decision affirming it.
Surprisingly, Justice Neil Gorsuch asked no questions and made no comments.
At the U.S. Supreme Court (SCOTUS), there are two combined cases: U.S. v. Skrmetti, and L.W., et al., v. Skrmetti. The petitioners before SCOTUS are the U.S. government and also private individuals: three teenagers who live in Tennessee, their parents and a Tennessee doctor who treats adolescents with gender dysphoria.
In the government case, U.S. v. Skrmetti, the Biden Administration are being represented by the Solicitor General Elizabeth Prelogar. In the private case, L.W. v. Skrmetti, ACLU attorney Chase Strangio is dividing time with the Solicitor General. Strangio is the first self-identified “transgender lawyer” to argue before SCOTUS.
Jonathan Skrmetti is the Attorney General of Tennessee, and his Solicitor General Matt Rice represented the State before the Court.
Several issues were appealed by the petitioners, but the Supreme Court only agreed to address a single legal issue:
“Whether Tennessee Senate Bill 1 (SB1), which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” Tenn. Code Ann. § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment.” (Emphasis added.)
The U.S. government contends that the Tennessee’s law violates the 14th Amendment’s Equal Protections Clause because the law explicitly classifies minors based on sex and discriminates based on transgender status.
Justices Kavanaugh and Barrett both asked questions about parental rights, and whether it was proper for the state to overrule parents’ decisions for their children. Solicitor General Rice emphasized that the issue of parental rights was not before the court, but the State agreed with Judge Sutton in the 6th Circuit case below, who said in rare cases, the government must intervene in protecting the interests of minor children, in spite of differing judgments by parents.
Justice Gorsuch’s silence was deafening, as the saying goes. He authored the 2020 Bostock opinion which held that Title VII of the Civil Rights Act of 1964 applied to discrimination based on homosexuality or transsexual gender identity. Therefore, court observers were very interested in the type of questions he would ask. Total silence during the lengthy 2.5-hour hearing was very unusual for him and left observers only to guess his inclinations.
Even if Justice Gorsuch were to vote with three liberals, that would likely result in a 5-4 vote upholding the Tennessee law. However, Chief Justice Roberts joined Justice Gorsuch in the Bostock opinion, and if he joined Gorsuch in opposing the Tennessee law, he could swing the result to a 5-4 win for the ACLU. The Chief Justice did not seem inclined to inject the Court into this political and scientific debate at this time, so numerous observers anticipated a victory for Tennessee, by at least a 5-4 vote. But such prognostications can be as unreliable as weather forecasts.
The election of Donald Trump as president means that the U.S. Justice Department will have personnel changes, including a new Solicitor General John Sauer, a Missouri attorney and former Missouri Solicitor General. Such staff changes could result in changes in legal positions about this case before the justices issue a decision. However, such changes by the U.S. would not likely change the legal position of the private petitioners in the L.W. v. Skrmetti case.
A SCOTUS decision is expected by June 30, 2025, at the end of the Court’s current term.