The Supreme Court Takes On Transgender Care for Minors

from The New York Times I'm Michael. buaro this is the. [Music]. daily. today in history making arguments on. Wednesday the Supreme Court heard a. major case on the rights of transgender. children that could help uphold or. dismantle dozens of laws across the. country my colleague Adam lipac listened. in and explains how it played out and.

how the justices are likely to. [Music]. rule it's Thursday December. [Music]. 5th Adam welcome back to the show it's. good to be here Adam this case that. we're going to talk about today has that. feeling of bigness that comes when the.

Supreme Court takes up a defining social. issue of our time at the precise moment. when that issue is completely front and. center that's right this is the biggest. case of the term and would have been. regardless but it hits the court just as. we're coming off a presidential campaign. in which trans rights played a central. role so the Supreme Court confronts an. important civil rights issue at just the.

moment in time when it's at the peak of. public scrutiny right and not just the. presidential campaign but school boards. across the country and sports leagues. across the country so tell us about this. case and Adam how it fits into all of. that well this case Michael presents. probably the most fraught question of. all gender transition care for people. under 18 and the case concerns the. Tennessee law the bars providing some.

kinds of medical care to transgender. minors to people under 18 years of age. in particular puberty blockers hormone. therapy and surgery 23 other states have. similar laws and the Tennessee law was. challenged by three families and a. doctor the Biden Administration. intervened on the side of the. families and they say that the law. violates the con itions equal protection.

clause and can you just explain that. argument started by these families and. as you said picked up by the Biden. Administration about why this is an. equal protection 14th Amendment case so. the equal protection Clause says that. some kinds of discrimination are. presumptively unlawful and the classic. examples are of course race or gender. and what the families and the Biden. Administration say here is that this law.

is an example of sex. discrimination it says that certain. forms of care are available to everybody. except minors who are seeking gender. transition care and you have to take. account of the sex of the child involved. to know whether they're entitled to get. that kind of treatment or not so think. about it this way Michael if you have a. child assigned male at Birth. experiencing precocious puberty meaning.

he's going through puberty earlier than. he wants to he can get puberty blocking. drugs if a transgender boy doesn't want. to experience puberty because it doesn't. align with his gender identity he's not. entitled to the very same treatment so. the challengers would say that example. tells you that this Tennessee law is a. form of sex discrimination so under the. Tennessee law the same medicines and. procedures are available or not. available depending on whether you are a.

transgender boy or girl or not and. therefore the claim being made is it's. discriminating against trans boys and. trans girls that's the claim under the. 14th Amendment that's the challengers. argument the state will come back and. say no we're not drawing distinctions. based on transgender status we're. drawing distinctions based on the. medical procedure these are different. medical procedures they would say and. the reason why this matters matters is.

that the Supreme Court has said that if. it is sex. discrimination the law is subject to a. very demanding form of judicial scrutiny. lawyers call it heightened scrutiny and. what it means is that a state has to. prove that it has a good reason for the. law and that the Restriction advances. that reason and that's a difficult. hurdle to overcome got it and just to be. very clear because I think this might. Escape people's understanding.

the government's legal argument here is. not about whether this Tennessee law and. I guess laws like it violate the rights. of trans people as trans people but. instead about whether this law is a form. of sex discrimination which is different. right and that's kind of a consequence. of necessary litigation. strategy almost surely The Challengers. would prefer to make the more. straightforward argument.

that this is discrimination based on. gender identity this is discrimination. based on transgender status and not have. this kind of intermediate workaround. about sex discrimination but sex. discrimination the court has ruled is. subject to heightened scrutiny and. transgender status they have never said. is subject to heighten scrutiny and. almost any reason will do for a state to. discriminate against transgender people. if it's not sex discrimination so while.

the transgender discrimination idea is. in the case as a backup argument most of. the chips of the challengers are put on. the sex discrimination argument because. that's the one where we know heightened. scrutiny kicks in if the court agrees. it's sex discrimination okay got it so. Adam take us into the courtroom for. these arguments from the federal. government and the state of Tennessee. we'll hear argument this morning in case. 23477 United States versus scetti.

General progger Mr chief justice and may. it please the. court so the case United States against. scetti starts with the solicitor general. of the United States Elizabeth progger. the top appellant lawyer in the Justice. Department representing the Biden. Administration sb1 bans the care. outright no matter how critical it is. for an individual patient and that. approach is a stark departure from the. state's regulation of pediatric care and. all other contexts s sp1 leaves the same.

medications and many others entirely. unrestricted when used for any other. purpose even when those uses present. similar risks telling the justices that. whatever else you can say a law that is. this categorical and that prohibits. gender transition care for all minors. whatever their parents say whatever. their doctors say whatever their. personal situation is is deeply.

problematic and that the court should. apply heighten scrutiny because this is. plainly a law that draws distinctions. based on sex someone assigned female at. Birth can't receive medication to live. as a male but someone assigned male can. if you change the individual sex it. changes the result that's a facial sex. classification full stop and a law like. that can't stand on bare rationality and. so what strikes you as the justices.

inevitably begin their. questioning well one major theme that. runs through the conservative justices. in particularly the more moderate by the. standards of this court conservative. justices I'm thinking of Chief Justice. John Roberts and Justice Brett Kavanaugh. sort of in the middle of the court and. you know we might think that we're you. know we can do just as good a job with. respect to uh the the evidence here as. as you know Tennessee or anybody else.

they take the view that this is above. our pay grade but my understanding is. that the constitution leaves that. question to the people's Representatives. rather than to nine people none of whom. is a doctor that we can't make. decisions about medical practices that. we're just nine people we're not medical. doctors and it's a little reminiscent. Michael of the opinion in DOS right. which said we're going to send this back.

to the States you can have abortion you. can not have abortion Justice kavanov. seems to me that you know if the. Constitution doesn't take sides if. they're strong forceful scientific. policy arguments on both sides in a. situation like this uh why isn't it best. to leave it to the Democratic process. similarly Justice Kavanaugh says you. know some states may be fine with these. procedures others not we take no point. of view on that the stition takes no.

point of view on that and we're not even. capable of making these judgments and. how does the government's top lawyer the. solicitor general respond to that she. says they're kind of leapfrogging the. question before them but when you look. at how this law actually operates what. it is doing is denying individual. plaintiffs the ability to access. medications on the basis of their sex. and that does the question before them. is simply is it sex discrimination if so. does a demanding form of Jud scrutiny.

apply and only then once you determine. that question which is the only question. she really has before the justices do. you get into this area of do we know. enough what's the right answer is a good. policy is a good law if you are. concerned Justice Kavanaugh about maybe. restricting the ability of states to. take a close look at these issues I. think the court could write a very. narrow opinion in this in this case that. when you prohibit conduct that's. inconsistent with sex that is a. sex-based line so you do have to she's.

focused on what is a fairly modest ask. which is to say what's the right way to. analyze the question do you analyze it. as sex discrimination giving rise to. heightened scrutiny and then you get. into all the other stuff the justices. are eager to talk about right but as. narrow as she wants to keep this set of. oral arguments and I was watching them. alongside you Adam the justices keep. finding ways to go bigger and bigger in. their questions yeah it's a wide ranging.

argument and all kinds of things pop up. I want to ask in particular about one. thing if you Prevail here on the. standard of review what would that mean. for women's and girls Sports uh in. particular Justice Kavanaugh who coaches. girls basketball team was very. interested in the impact of a potential. ruling on transgender participation in. sports or would transgender athletes. have a constitutional right as you see. it to play women's and girls Sports.

basketball swimming volleyball track Etc. notwithstanding and it wasn't just the. conservative justices who seem to want. to expand the scope of their questioning. beyond that narrow legal question some. children suffer incredibly with gender. Doria don't they yes it's a very serious. medical condition some attempt suicide. yes the rates of suicide are are. striking and it's a vulnerable Justice. sort of myor said that transgender.

minors suffering from gender dysphoria. the disconnect between sex assigned. birth and gender identity can go through. very rough times including potential. suicide one of the petitioners in this. case describe throwing up every day. going almost mute because of their. inability to speak in a voice that they. could live with um these are phys I the.

challenging situations as well too so. that this is an urgent situation she. says that needs to be addressed and. indicated that the Tennessee law gets in. the way of what can be life-saving Care. on the other side of the balance the. Restriction that I mentioned was imposed. by the British government some months. ago it was reaffirmed by the current. labor Justice Alo kind of surveyed the. world and said that much of Europe has.

grown cautious about some forms of. transgender care to which the solicitor. general responded if the court wants to. go ahead and look at what's happening in. Europe the UK has not categorically. banned this care Sweden Finland and. Norway the other jurisdictions that my. friends point to have not banned this. care and I think that's because of the. recognition that this care can provide. critical sometimes life-saving benefits. for individuals with severe gender. dysphoria that it's true that there have. been. adjustments in the UK in Sweden but none.

of them have a categorical rule like the. one in Tennessee forbidding transgender. care as such MH so at this point the. argument and the justices are sort of. all over the map quite literally trans. kids in sports laws in Europe you know. all very important stuff but really. beyond the very specific question of. does this law discriminate on the basis. of sex um I guess I I I think there.

might be some confusion a little bit at. least I'm confused because there's so. many lines that this statute could draw. the classific and then there was a. striking moment when Justice katangi. Brown Jackson says wait a second we have. a job here it's not to decide the risks. or benefits of the policies that justify. the law it's our job under the. Constitution to decide at least in the. first instance whether the law triggers. the equal protection.

things and the question for equal. protection purposes is if you're right. that there is a sex based line being. drawn then to the extent the plaintiffs. are implicated by that line don't we. have to apply heightened scrutiny in. evaluating their claims yes that's. exactly right she said that's the job of. the Supreme Court to police the 14th. Amendment and at least reach the initial. question of is this. discrimination and does that mean that a.

heightened form of judicial review kicks. in right she's sort of like people focus. we have a job here it was a striking. moment Mr. strel Mr chief justice and may it please. the. court but I think in a lot of ways one. of the most memorable moments in the. arguments came when another lawyer. challenging the law stood up to argue. but sb1 has taken away the only. treatment that relieved years of. suffering for each of the Adolescent.

plaintiffs chase strangio a lawyer with. the ACLU representing the families and. the doctor challenging the law is the. first transgender lawyer ever to argue. before The Supreme Court or at least the. first openly transgender lawyer let me. ask a question about another issue that. came up during Justice kagan's. questioning and he pretty quickly gets. into an exchange with Justice Alo who's. one of the Court's most conservative. members that's really quite remarkable.

is transgender status immutable Alo asks. him whether transgender identity is. immutable I I think that the record. shows that the the discordance between a. person's birth sex and gender identity. has a strong biological basis and would. satisfy an imut immutability test and I. also think Al was essentially asking a. transgender person a lawyer arguing. before the court is your identity. an essential element of who you are and.

it's not just a striking moment it also. has some legal significance whether or. not a characteristic is immutable plays. into deciding whether that. characteristic can make you into a. protected class so this was not only. personal but also an important point for. his side to try to win scrutiny if. Tennessee can have an end run around. heighten scrutiny by asserting at the. outset that biology justifies the. sex-based differential in the law that.

would undermine Decades of this Court's. precedent thank. you thank you. Council So Adam when the two lawyers. arguing against this Tennessee law are. done and about to hand it over to the. folks defending this law what are you. thinking so Michael by the time the. challengers finished and it was kind of. an unwieldy romp through a lot of. different areas not tightly focused on. the legal question before the justices. I kind of had the sense that the.

Challengers were facing an uphill fight. in what they had to. prove and persuading the more. conservative majority that this law. amounts to sex. discrimination and that was before we. even heard from Tennessee's lawyer who. was defending the law and saying that it. wasn't about sex discrimination but. about something else entirely. [Music].

we'll be right. [Music]. back so Adam tell us about the second. half of these arguments when the lawyer. for Tennessee argues his side of this. case Mr rice Mr chief justice and may it. please the court Tennessee solicitor. general Matthew Rice says the other side.

misunderstands what's going on here the. law imposes an across theboard rule that. allows the use of drugs and surgeries. for some medical purposes but not for. others its application turns entirely on. medical purpose not a patient's sex that. is not sex discrimination that this. isn't sex discrimination neither boys. nor girls can get this kind of medical. treat. he says it's a restriction on medical.

procedures it's a restriction on the. purpose of the procedure not on any. particular gender not on any particular. sex of a patient the equal protection. Clause does not require the states to. Blind themselves to Medical reality or. to treat unlike things the same he's. saying this law if it discriminates. against anyone does So based on the. purpose of this medical treatment if the.

purpose is to transition a minor we're. not for it if it's for something else we. are he's saying as a result it cannot be. construed as discriminatory based on sex. right he would also say listen we are. discriminating based on age but we're. allowed to do that we are discriminating. based on as you say Michael what the. medical procedures are but we're not. discriminating he claims based on on the. gender of the patient and what do the.

justices say to that um both the SG and. um petitioner have suggest Justice. Clarence Thomas asks the first question. to Rice saying that maybe Tennesse could. have taken a different approach to its. law so it it becomes a pure exercise of. of weighing benefits versus risk and the. question of how many minor and rice. starts to answer the question says you. know there are risks this kind of. intervention one that is best left I'm.

sorry counselor every medical treatment. has a risk even taking aspirin and as he. is answering Justice sodora interrupts. him and says wait a second all kinds of. medical procedures have risks there is. always going to be a percentage of the. population under any medical treatment. that's going to suffer a. harm so the question in my mind is not. um do policy makers decide whether one.

person's life is more valuable but the. question is what are you trying to. achieve and what's the counterveiling. value of the harm that comes to. transgender youths who are deeply. distressed by the disconnect between. their gender assigned at Birth and their. current gender identity but the other is. can you stop one sex from the other. one person of one sex from another sex.

from receiving that benefit that the. same medical treatment under this law is. unavailable to transgender kids but. available to other kids that's the sex. based difference it's not the me the. medical condition is the same we don't. you're saying one sex is getting it and. the other's not we do not agree that the. medical and the other liberal justices. sort of pile on they're loaded for bear. now looking at this statute a girl comes.

in biologically and asks for a hormone. to deepen her voice in order to affirm. the identity that she chooses which is. masculinity Justice Jackson presses the. lawyer on the distinction between two. different miners seeking the same. treatment testosterone to lower their. voices she wants to I'm sorry one more. time your honor she wants to get the. medication in order to deepen her voice. and affirm her.

masculinity you honor I think if it's. for the purpose of identifying. inconsistent with their sex she would be. barred from doing that under the but. isn't that the point Mr rice that if. it's and jce Kagan jumps in as well I. mean the prohibited purpose here is. treating gender dysphoria which is to. say that the prohibited purpose is. something about whether or not one is. identifying with one's own sex or. another sex the whole thing is imbued. with sex I mean it's based on sex you if.

the first half of the argument was a. little diffuse and roaming across the. legal landscape the second part of the. argument had the three liberal members. of the Court really bearing down on the. Tennessee lawyer and really questioning. him about whether this distinction he's. drawing between medical purpose and sex. discrimination makes sense and get can. be sustained and in that moment Adam I. don't know if you felt the same way it.

did feel like these three liberal. justices were cutting this lawyer down. to size I mean they were Landing their. points in this sustained prosecutorial. style right and it looked like at least. for a time that they had Tennessee's. lawyer on the ropes and that's not the. argument that we're making but ryce. gradually collects himself we're arguing. there is no sexb line and starts to make. probably the best formulation of his. argument saying that maybe there's an.

incidental effect on sex but sex is not. the Baseline sex is not the Criterion. the Criterion is what's the purpose of. the procedure you're trying to obtain if. you're a boy and you go in to get. puberty blockers you can get the puberty. blockers if you're going to use them for. precocious puberty you cannot get the. puberty blockers if you're going to use. them to transition that is not a sex. based line that is a purpose based line. and both boys and girls he says are.

prohibited from getting care that is for. the purpose of gender transition so he. says there's no sex discrimination there. so our fundamental Point here is not. that you can discriminate against both. sex both sexes in equal degree our. fundamental point is there is no. sex-based line here and the only way. they get to a sex-based line is by. equating fundamental fundamentally. different treatments that defy medical. reality and defy defy how the statute. itself self sets out what is a treatment.

and the treatments are different and. that's similar to the reasoning in DOS. the case that overturned roie Wade there. was a passage in that majority opinion. that says there's an argument that. abortion restrictions violate equal. protection because they fall. disproportionately on women but that's. not how equal protection works if the. category the prohibited procedure is. neutral just because one sex is more. affected than the other that's not an.

equal protection problem the court said. in dobs and rice the Tennessee lawyer is. making a similar Point here H so even. though abortion is predominantly a. question for. women the do's opinion makes the case. that it cannot be construed as being. fundamentally discriminatory to women. and now the lawyer for the Tennessee law. is saying. the same principle applies here right.

that the prohibition is actually neutral. it may happen to disproportionately. affect one gender or the other but the. point is what is the prohibition. supposed to achieve H and hopefully for. the Tennessee lawyer he is speaking to a. court whose majority just wrote and. issued the do's opinion so presumably he. thinks he's going to get a pretty. sympathetic ear on that point yeah and.

his uh the Tennessee brief in the case. cites dos a dozen times it it knows a. good thing when it sees it thank you. thank you Council the case is. submitted the honorable court is now. adjourned until Monday next at. 10:00 so Adam once both sides are done. here what are you thinking about how. these justices based on their questions. based on their tone are likely to rule. in this biggest case of the term so I.

guess I probably put the justices in. three buckets the three liberal justices. are almost certainly going to want to. strike down the Tennessee law the most. conservative justices will doubtless. want to sustain it and then the group in. the middle the chief justice justice. Kavanaugh maybe Justice Barrett might. take this kind of hands off attitude. saying we we don't know we're not. doctors we're going to let the states do. what they like and I'd be surprised if.

we didn't have a classic 63 split where. the six Conservative Republican. appointees say the Tennessee law is fine. and the three liberal Democratic. appointees say that it at a. minimum amounts to sex. discrimination and at a minimum requires. new analysis by the lower courts to see. whether the law can clear that very high. bar of heightened scrutiny and what. would such a ruling mean for the 20 some.

state level banss that seem very much. related to this law in. Tennesse it would seem to suggest that. all of them. are constitutional at least as against. an equal protection challenge there's a. separate possible constitutional. argument not before The Supreme Court on. Wednesday that parents have a. constitutional right to direct the. medical care of their children those. challenges might might still work but.

the equal protection challenge which was. the only challenge the Biden. Administration pressed would seem to be. dead if we get that kind of ruling right. and the parental rights argument was. hinted at in this case parental rights. is and has been for years a tenant of. American conservatism and the case being. made here would be that bands like this. take a crucial decision away from. parents when it comes to their children. yeah like imagine the situation of. vaccines many conservatives say if a.

parent doesn't want to have their child. vaccinated the government can't force. them that parental rights have enormous. Force for many American conservatives so. that argument might be a more promising. one before this conservative Supreme. Court of course we do not expect the. incoming Trump Administration to bring. such a parental rights case before The. Supreme Court right no the Trump. Administration is not going to do. anything to enhance transgender rights.

so even though that argument would be. available to them they're not going to. press it but that's not to say that. private parties parents doctors won't. make that argument but the Trump. Administration also has a important. decision to make on taking office of. whether they disavow the position of the. Biden Administration in this very case. huh and they are likely to do so and. that will require the Supreme Court to. do some procedural gymnastics because.

the only petition they agreed to hear. was the one from the Biden. Administration and it's possible they'd. find some way to substitute in the. families in this case who while they. argued are not strictly speaking. petitioners in the case so there will be. some machinations in the coming months. because uh there is no doubt that the. Trump Administration is not on board for. the arguments that the solicitor general. was making on Wednesday Adam putting.

that aside and assuming that this case. does get decided in due course and. assuming as you suggested that the. justices a majority of them side with. the Tennessee law then it looks like. we're in a scenario where youth trans. medicine is on a similar path to. abortion in this country it becomes the. province of State lawmakers and as a. result we get this Patchwork we get two. systems in the. country and that means there are going. to be states where this gender affirming.

care for young people is allowed and. where it's not allowed just as we have. states where abortion is now allowed and. it's not allowed yeah it's very much the. same dynamic as abortion where we might. have wholly different sets of laws in. deep red States like Mississippi and. deep blue States like. California but then there may be ways in. which abortion and trans care are. different because it's no small thing.

but women can leave a state to get an. abortion come back and go on with their. lives this kind of treatment might. require entire families to leave the. state forever mhm an even bigger burden. and then there's also the question of. political power in a number of referenda. around the nation voters have. reestablished. abortion rights there's not this sense I.

don't think that the trans Community has. the political power or their allies have. the political power to vote in by. referenda similar protections for care. for transgender. miners right and in that sense these. laws especially if upheld by the Supreme. Court may end up feeling like the final. word on this for a long time that's. right. [Music]. well Adam as always thank you very much.

thank you. [Music]. Michael we'll be right. back here's what else you need to know. today on Wednesday Pete Heth and his. allies tried to salvage his potential. nomination for Secretary of Defense amid. growing allegations about his public.

drunkenness his sexual pursuit of. subordinates and his financial. mismanagement of two nonprofit. groups in an interview with Megan Kelly. of Sirius XM radio hegf dismissed the. allegations against him as a fiction. created by enemies of Donald Trump it is. the classic art of the smear take. whatever tiny kernels of Truth and their. T tiny tiny ones in there and blow them.

up into a masquerade of a narrative. about somebody that I am definitely not. for his part Trump insisted that his. support for Heth remains unwavering but. the times reports that the. president-elect is already considering. alternatives to run the defense. department including Florida Governor. Ron. DeSantis and on Wednesday the CEO of. United Healthcare one of the nation's. largest Health insurers was gunned down.

in Midtown Manhattan in what police are. calling a Brazen and targeted attack. police said that the gunman was waiting. outside of the hotel where the CEO Brian. Thompson was scheduled to speak at the. company's annual meeting of investors as. Thompson prepared to enter the hotel the. gunman opened fire shooting him. repeatedly before fleeing into to. Central Park Thompson was declared dead.

shortly. after today's episode was produced by. Diana WN Sydney Harper and will Reed it. was edited by Devin Taylor contains. original music by Maran Lozano and Dan. Powell and was engineered by Alysa. Moxley our theme music is by Jim. brunberg and Ben lansberg of.

[Music]. wonderly that's it for the daily I'm. Michael. buaro see you tomorrow. [Music].