Court upholds Tennessee’s ban on certain medical treatments for transgender minors

This post was updated on June 18 at 2:22 pm

The Supreme Court on Wednesday upheld Tennessee’s ban on puberty blockers and hormone therapy for transgender teenagers. By a vote of 6-3, the justices rejected an argument by three transgender teens (along with their parents and a Memphis doctor) that the law violates their constitutional right to equal protection and should be scrutinized using a more stringent standard than the one used by a federal appeals court in Cincinnati. 

Writing for the majority, Chief Justice John Roberts acknowledged that the dispute “carries with it the weight of fierce scientific and policy debates about the safety, efficacy, and propriety of medical treatments in an evolving field.” But the court’s only role, he said, is to ensure that the Tennessee law does not violate the Constitution’s guarantee of equal protection. “Having concluded that it does not,” he wrote, “we leave questions regarding its policy to the people, their elected representatives, and the democratic process.” 

The court’s Democratic appointees dissented from the decision. Justice Sonia Sotomayor wrote that the court’s ruling “authorizes, without second thought, untold harm to transgender children and the parents and families who love them.” 

According to KFF, more than half the states have laws similar to Tennessee’s. The decision also comes just under five months after President Donald Trump signed a series of executive orders affecting the rights of LGBTQ+ people – and, in particular, transgender people. One such order, signed on Jan. 28, seeks to restrict the availability of certain medical treatment for transgender people under the age of 19. 

The Biden administration joined the transgender teens in their challenge to the Tennessee law. But in early February, the Trump administration took a different position, telling the justices that it had determined that the law does not violate the right to equal protection. It “would not have intervened to challenge” the law, much less asked the Supreme Court to weigh in, it wrote in a letter on Feb. 7. 

Tennessee’s legislature passed the law, known as SB1, in 2023. SB1 emphasizes that the state has a “legitimate, substantial, and compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty.” It prohibits (as relevant here) the use of puberty blockers and hormone therapy for transgender teens while allowing the use of the same treatments for other purposes. 

U.S. District Judge Eli Richardson put the ban on hold. He concluded that the treatments at the center of the dispute are “safe, effective, and comparable in both risk profile and efficacy to many other forms of pediatric medicine that Tennessee permits.” 

The U.S. Court of Appeals for the 6th Circuit reversed Richardson’s ruling and upheld the ban. It relied on a less stringent standard of review, known as “rational basis” review, which asks whether the law is rationally related to a legitimate government interest. 

On Wednesday, the Supreme Court affirmed the 6th Circuit’s ruling. In a 24-page opinion, Roberts and the majority agreed with the court of appeals that the Tennessee law is not subject to heightened scrutiny, because it does not draw classifications based on sex. Instead, Roberts explained, the law “prohibits healthcare providers from administering puberty blockers and hormones to minors for certain medical uses, regardless of a minor’s sex.” 

Roberts rejected the challengers’ contention that the law draws sex-based classifications because a transgender boy cannot receive puberty blockers or testosterone, while a teenage boy who is not transgender can receive those medicines. Such examples, Roberts stressed, “contort the meaning of the term ‘medical treatment.’” When “a transgender boy (whose biological sex is female),” Roberts reasoned, “takes puberty blockers to treat his gender incongruence, he receives a different medical treatment than a boy whose biological sex is male who takes puberty blockers to treat his precocious puberty.” 

Roberts also rebuffed the challengers’ assertion that the Tennessee law, by “encouraging minors to appreciate their sex” and barring medical care “that might encourage minors to become disdainful of their sex,” “enforces a government preference that people conform to expectations about their sex.” Those interests, Roberts suggested, simply reflect the state’s “concerns” in light of the state’s “legitimate, substantial, and compelling interest in protecting minors from physical and emotional harm,” and its findings that treatments like the use of puberty blockers and hormone therapy can be risky and lead to regret later in life. 

Roberts similarly turned aside the challengers’ argument that the Tennessee law should be subject to heightened scrutiny because it discriminates against transgender people, who are a suspect or quasi-suspect class – that is, people who have historically been subject to discrimination. The Supreme Court has never held that transgender people are a suspect or quasi-suspect class, Roberts noted. And it does not need to reach that question in this case because the Tennessee law “does not classify on the basis of transgender status.” 

Finally, Roberts disagreed with the challengers’ suggestion that the Supreme Court’s 2020 decision in Bostock v. Clayton County, holding that federal employment discrimination laws protect LGBTQ workers, should apply to this case. The challengers had contended that the Tennessee law “discriminates on the basis of sex because it intentionally penalizes members of one sex for traits and actions that it tolerates in another.” The court, Roberts countered, had “not yet considered whether Bostock’s reasoning reaches beyond” federal employment discrimination laws, “and we need not do so here.” 

Therefore, Roberts wrote, the law is subject to rational basis review, which it can meet as long as there are “plausible reasons” for the government’s actions: “Tennessee concluded that there is an ongoing debate among medical experts regarding the risks and benefits associated with administering puberty blockers and hormones to treat gender dysphoria, gender identity disorder, and gender incongruence.” The Tennessee law’s “ban on such treatments responds directly to that uncertainty.” 

Justice Clarence Thomas joined the Roberts opinion, but he also wrote a 23-page concurring opinion in which he pushed back against efforts by the challengers and the Biden administration to give what he characterized as “outsized credit to claims about medical consensus and expertise” surrounding medical treatments for transgender minors. Thomas dismissed the experts cited by the challengers and the Biden administration, contending that they “have built their medical determinations on concededly weak evidence” and “have surreptitiously compromised their medical recommendations to achieve political ends.” Thomas noted approvingly that the Supreme Court’s opinion upholding the Tennessee law had given “‘the people, their elected representatives, and the democratic process’ the power to decide how best to address an area of medical uncertainty and extraordinary importance.” “That sovereign prerogative,” he concluded, “does not bow to ‘major medical organizations.’” 

Thomas joined another concurring opinion, by Justice Amy Coney Barrett, arguing that transgender status is not a suspect class. The test to determine whether a group is a suspect class is “strict,” Barrett emphasized, considering whether members of the group display “immutable” or “distinguishing characteristics,” whether the group has historically been subject to discrimination, and whether the group is “a minority or politically powerless.”

Transgender people, Barrett wrote, cannot meet this test. According to Barrett, transgender people do not have “immutable” characteristics, and they are a “large, diverse, and amorphous” group, rather than a discrete one. 

And although the challengers and the Biden administration contend that transgender people have faced a range of discrimination, Barrett said, the key question is whether they have been subject to legal discrimination (as opposed to discrimination by private actors). Because transgender people are “an insufficiently discrete and insular minority,” Barrett stressed, “the question is largely academic,” but she observed that the evidence on this point is “sparse but suggestive of relatively little” legal discrimination.

Barrett highlighted what she saw as a potential complication from recognizing transgender people as a suspect class. Doing so, she posited, “would require courts to oversee all manner of policy choices” that the legislature would normally make. And it would also implicate “several other areas of legitimate regulatory policy—ranging from access to restrooms to eligibility for boys’ and girls’ sports teams. If laws that classify based on transgender status necessarily trigger heightened scrutiny, then the courts will inevitably be in the business of ‘closely scrutiniz[ing] legislative choices’ in all these domains.” 

Justice Samuel Alito agreed with the result that the court reached, but not all of its reasoning. He wrote that there “is a strong argument” that the Tennessee law does classify based on transgender status. But even if that’s true, he said, he would still uphold the law using rational basis review. 

Sotomayor – whose dissent was joined in full by Justice Ketanji Brown Jackson and in large part by Justice Elena Kagan – began by observing that “[t]he level of constitutional scrutiny courts apply in reviewing state action is enormously consequential.” In her view, because the Tennessee law “plainly classifies on the basis of sex,” it should be reviewed using intermediate scrutiny, which allows governments to draw classifications only if they serve “important governmental objectives” and if the classification is “substantially related to the achievement of those objectives.” 

In Sotomayor’s view, the majority’s conclusion that the Tennessee law draws distinctions based only on age and medical purpose is flawed because “the very ‘medical purpose’ SB1 prohibits is defined by reference to the patient’s sex”: The essential question in determining whether a minor can receive puberty blockers or hormone therapy, she wrote, is whether the treatment serves the “medical purpose” of “helping the minor live or appear ‘inconsistent with” the minor’s sex.” 

Sotomayor also pushed back against the court’s conclusion that transgender people are not a suspect or quasi-suspect class, calling it not really a “serious dispute.” “Transgender people,” she said, “have long been subject to discrimination in healthcare, employment, and housing, and to rampant harassment and physical violence.” Indeed, she observed, “the Federal Government … has started expelling transgender servicemembers from the military and [is] threatening to withdraw funding from schools and nonprofits that espouse support for transgender individuals.”

Sotomayor acknowledged that states can regulate puberty blockers and hormones to protect the health and welfare of its young residents. “But that does not change,” she concluded, “the Court’s obligation, as mandated by our precedents, to determine whether the challenged sex classification in SB1’s categorical ban is tailored to protecting minors’ health and welfare, or instead rests on unlawful stereotypes about how boys and girls should look and act.” 

Both in reading her dissent from the bench in the courtroom and in her written opinion, Sotomayor indicated that she dissented “[i]n sadness,” and without qualifying the phrase “I dissent” with the traditional “respectfully.”