The U.S. Supreme Court heard oral arguments Wednesday in U.S. v. Skrmetti, a case that could shape the future of transgender rights in the United States. At issue is Tennessee’s law, SB 1, banning gender-affirming medical care for minors. The law prohibits the use of puberty blockers and hormones for the treatment of gender dysphoria while allowing the same medications to be used for other conditions.
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The arguments highlighted a sharp divide between the court’s liberal justices, who appeared sympathetic to the challenges faced by transgender youth, and its conservative majority, which expressed skepticism about overturning the law. Notably, Justice Neil Gorsuch — who authored the landmark Bostock v. Clayton County opinion that held transgender people cannot be discriminated against in employment — did not ask a single question during the hours-long session.
Related: What is U.S. v. Skrmetti, the Supreme Court case that could change gender-affirming care forever?
The court’s conservative majority appeared hesitant to overturn the law. Chief Justice John Roberts suggested that such deeply contentious issues might be best left to state legislatures rather than the courts. “The Constitution leaves that question to the people’s representatives rather than to nine people, none of whom is a doctor,” Roberts said.
Justice Samuel Alito pressed U.S. Solicitor General Elizabeth Prelogar on whether the overwhelming medical consensus cited in her arguments still holds, referencing reports from European countries, including Sweden and the United Kingdom, that have recently restricted gender-affirming care for minors. “I wonder if you would like to stand by the statement that you made in your petition or if you think it would now be appropriate to modify that and withdraw the statement that there is overwhelming evidence establishing that these treatments have benefits that greatly outweigh the risks and the dangers,” Alito asked.
Prelogar responded, “I stand by that there is a consensus that these treatments can be medically necessary for some adolescents. And that’s true no matter what source you look at.”
Justice Brett Kavanaugh raised concerns about the evolving medical and policy debates around the treatments. “It strikes me as pretty heavy yellow light, if not red light, for this court to come in the nine of us and to constitutionalized the whole area when the rest of the world, or at least the people who the countries that have been at the forefront of this are pumping the brakes on this kind of treatment because of concerns about the risks,” he suggested.
The countries cited by the court have not adopted a law like Tennessee, Prelogar said. Gender-affirming care can still be obtained.
Kavanaugh emphasized the complexity of weighing the risks and benefits of gender-affirming care, framing it as a policy question best left to state legislatures. “If the treatment’s barred, some kids will suffer because they can’t access the treatment,” he said. “If these treatments are allowed, some kids will suffer who get the treatment and later wish they hadn’t and want to detransition.” He questioned how one would choose.
While detransitioning happens, Prelogar noted it's rare. “We are certainly not denying that some people might regret this care, but all of the available evidence shows that it’s a very small number,” she said.
Prelogar argued forcefully that Tennessee’s law is a clear instance of unconstitutional sex-based discrimination. “In Tennessee, these medications can’t be prescribed to allow a minor to identify with or live as a gender inconsistent with the minor sex,” she said. “It doesn’t matter what parents decide is best for their children. It doesn’t matter what patients would choose for themselves. And it doesn’t matter if doctors believe this treatment is essential for individual patients.”
She emphasized that Tennessee failed to tailor its law to address the health risks it claims to be concerned about, banning care outright while allowing the same medications to be used for other purposes. “[This law] categorically bans treatment when, and only when, it’s inconsistent with the patient’s birth sex,” she argued.
When questioned about how this law differs from regulations governing other medical treatments for minors, Prelogar stressed the unique harm it imposes on transgender youth. “The effect of denying this care is to produce irreversible physical effects that are consistent with their birth sex because they have to go through puberty before they turn 18,” Prelogar said. “So essentially what this law is doing is saying we’re going to make all adolescents in this state develop the physical secondary sex characteristics consistent with their gender or with their sex assigned at birth, even though that might significantly worsen gender dysphoria, increase the risk of suicide.”
Protesters outside of the Supreme Court on Wednesday, December 4.Photo by Nikki Aye for The Advocate
The court’s liberal justices focused on the discriminatory nature of Tennessee’s law and pressed the state’s rationale for categorically banning gender-affirming care for minors. Justice Sonia Sotomayor zeroed in on the high stakes for transgender youth, emphasizing their vulnerability.
“Some children suffer incredibly with gender dysphoria, don’t they?” Sotomayor asked. “Some attempt suicide,” she said, adding, “Drug addiction is very high among some of these children because of their distress.”
Justice Elena Kagan challenged the framing of the law as sex-neutral, pointing out that it appears to target transgender individuals specifically.
Kagan also highlighted the inconsistency in the state’s justification. She noted that the same medications banned under the law for transgender youth are permitted for other conditions, such as early-onset puberty or hormonal disorders.
Justice Ketanji Brown Jackson drew parallels between Tennessee’s law and historical cases involving racial classifications, particularly Loving v. Virginia. She suggested deference to the legislature was insufficient when laws drew lines based on suspect classifications.
“I’m worried that we’re undermining the foundations of some of our bedrock equal protection cases,” Jackson said.
Drawing a parallel to Loving, she argued that such deference could undermine foundational equal protection cases. Jackson emphasized that the court’s role is to scrutinize whether laws use suspect classifications, not simply accept the state’s rationale at face value. She noted that Tennessee’s law explicitly prohibits medical care inconsistent with a person’s sex and questioned whether such a classification is inherently discriminatory.
American Civil Liberties Union attorney Chase Strangio, the first out transgender lawyer to argue before the Supreme Court, contended that the legislation uniquely and unjustly targets transgender individuals.
Related: Meet the transgender lawyer leading a bold fight to show Supreme Court justices that trans lives matter
He dismantled Tennessee’s justification for the ban, calling it overly broad and discriminatory. “This law bans treatment only when it allows an adolescent to live, identify, or appear inconsistent with their birth sex,” he said. “That is a sex classification, full stop.”
Justice Clarence Thomas about the practical implications of a ruling in favor of the plaintiffs, Strangio said the remedy would allow families to resume making individualized decisions with their doctors without the barrier imposed by SB 1.
Strangio also addressed Roberts’ concern about the court’s role in evaluating medical evidence, arguing that heightened scrutiny allows courts to assess whether laws are narrowly tailored to advance legitimate governmental interests. “The purpose of applying heightened scrutiny is not to make sex a prescribed classification but to shift the burden to the state to show their work and prove that this law substantially advances an important governmental interest,” he said.
Photo by Nikki Aye for The Advocate
Justice Neil Gorsuch’s silence during the arguments was striking. As the author of the court’s Bostock decision held that transgender individuals are protected from workplace discrimination under Title VII, Gorsuch’s reasoning is central to the plaintiffs’ argument that Tennessee’s law violates the Equal Protection Clause. Yet he refrained from engaging in the back-and-forth that marked much of the session.
Strangio noted that Tennessee’s arguments could open the door to nationwide bans on gender-affirming care for adults as well as minors. “Perhaps the scariest thing for all of us is that Tennessee’s arguments would apply if Congress tomorrow banned this care nationally,” he told reporters on the court steps after he exited the court.
Responding to The Advocate after the arguments, Strangio reflected on the challenging legal terrain. “I think the argument went, as arguments go, where you are being tested on the limits of your position,” he said. “But I think our best case is the statute that Tennessee passed. It’s a statute that, from top to bottom, says you can’t do something if it is inconsistent with your sex. And the government of Tennessee wants you to appreciate your sex. If that’s not about sex, I do not know what is.”
Strangio added, “At the end of the day, we hope the court sees it as we do, but no matter what happens, we will keep fighting,” before addressing a large crowd of supporters assembled between the Supreme Court and U.S. Capitol.
The court’s decision, expected in the summer of 2025, will determine not only the fate of Tennessee’s law but could set a significant precedent for the legal rights of transgender people nationwide. For now, the conservative majority’s apparent skepticism of overturning the law suggests an uphill battle for transgender rights advocates. However, the case continues to spotlight the profound personal and legal stakes for transgender youth and their families, who argue that access to gender-affirming care is a matter of life and death.
