The Daily - The Supreme Court Takes On Transgender Care for Minors

Episode Date: December 5, 2024

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.Adam Liptak, who covers the Supreme Court for The Times, explains how the questioning played out and how the justices are likely to rule. Guest: Adam Liptak, who covers the Supreme Court and writes Sidebar, a column on legal developments, for The New York Times.Background reading: The justices heard arguments on Wednesday over whether Tennessee can ban some medical treatments for transgender youth.For families of transgender children, Tennessee’s ban forces hard choices.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday.  Unlock full access to New York Times podcasts and explore everything from politics to pop culture. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify.

From the New York Times, I'm Michael Barbaro. This is The 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 Liptaak listened in and explains how it played out and how the justices are likely to rule. It's Thursday, December 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 a Tennessee law that 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 Constitution's 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 this 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 challenger's 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 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 work around 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 heightened 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 Scrumetti. General Prelogger. Mr. Chief Justice, and may it please the court. So the case, United States against Scrumetti, starts with the Solicitor General of the United

States, Elizabeth Prelogger, the top appellate 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 in all other contexts. SB1 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 heightened 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's 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? One major theme that runs through the conservative justices, and 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 we might think that we can do just as good a job with respect to the evidence here 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 Dobbs.

Right. Which said, we're going to send this back to the states, you can have abortion, you can not have abortion. Justice Kavanaugh? It seems to me that if the Constitution doesn't take sides, if there's strong, forceful, scientific policy arguments on both sides in a situation like this, 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 Constitution takes no point of view on that. And we're not even capable of making these judgments. Hmm. 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.

The question before them is simply, is it sex discrimination? If so, does a demanding form of judicial 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 it good policy? Is it 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 case that when you prohibit conduct that's inconsistent with sex, that is a sex-based line, so you do have to apply a...

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 in particular? Justice Kavanaugh, who coaches a girls' basketball team, was very interested in the impact of a potential ruling on transgender participation in sports. Would transgender athletes have a constitutional right, as you see it, to play in women's and girls' sports? Basketball, swimming, volleyball, track, et cetera?

And it wasn't just the conservative justices who seemed to want to expand the scope of their questioning beyond that narrow legal question. Some children suffer incredibly with gender dysphoria, don't they? Yes, it's a very serious medical condition. Some attempt suicide? Yes, the rates of suicide are striking and it's a vulnerable... Justice Sotomayor said that transgender minors suffering from gender dysphoria, the disconnect between sex assigned at birth and gender identity, can go through very rough times, including potential suicide.

One of the petitioners in this case described throwing up every day, going almost mute because of their inability to speak in a voice that they could live with. These are physically 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 Alito 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. 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? I guess, 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. And then there was a striking moment when Justice Katanji 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 Clause. 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 sex 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. Strangio? 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 Alito, who's one of the court's most conservative members, that's really quite remarkable.

Is transgender status immutable? Alito asks him whether transgender identity is immutable. I think that the record shows that the discordance between a person's birth sex and gender identity has a strong biological basis and would satisfy an immutability test. And Alito is 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. If Tennessee can have an end run around heightened 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, counsel. 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 challenge is 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 in 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. We'll be right 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 the board rule that allows the use of drugs and surgeries for some medical purposes, but not for others. 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. Dr. Kahn That this isn't sex discrimination. Neither boys nor girls can get this kind of

medical treatment. He says it's a restriction on medical procedures. It's a restriction on is 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 the gender of the patient. And what do the justices say to that? Both the SG and petitioner have suggested...

Justice Clarence Thomas asks the first question to Rice, saying that maybe Tennessee could have taken a different approach to its law. So it becomes a pure exercise of weighing benefits versus risk. And the question of how many minors... And Rice starts to answer the question, says, you know, there are risks to this kind of intervention. I'm sorry, counselor. Every medical treatment has a risk, even taking aspirin. And as he is answering,

Justice Sotomayor 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, do policymakers decide whether one person's life is more valuable? But the question is, what are you trying to achieve and what's the countervailing 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 med, the medical condition is the same. We don't agree. But you're saying one sex is getting it and the other's not.

We do not agree that the medical condition is the same. 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 minors 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. Your Honor, I think if it's for the purpose of identifying inconsistent with their sex, she would be barred from doing that under the law. But isn't that the point, Mr. Rice, that if it's for the purpose of gender dysphoria? And Justice 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. 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 can be sustained.

And in that moment, Adam, and 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 Bryce gradually collects himself.

We're arguing there is no sex baseline. 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 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 fundamentally different treatments that defy medical reality and defy how the statute itself sets out what is a treatment. And that's similar to the reasoning in Dobbs, the case that overturned Roe v. 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 Dobbs and Rice, the Tennessee lawyer, is making a similar point here. Hmm. So even though abortion is predominantly a question for women, the Dobbs 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? Hmm. And helpfully for the Tennessee lawyer, he is speaking to a court whose majority just wrote and issued the Dobs opinion So presumably he thinks he's gonna get a pretty sympathetic ear on that point Yeah, and his the Tennessee brief in the case cites dobs a dozen times it knows a good thing when it sees it

Thank you. Thank you counsel. The case is submitted The Honorable Court is now adjourned until Monday next at 10 o'clock. 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 don't know, we're not doctors, we're gonna let the states do what they like. And I'd be surprised if we didn't have a classic six-three 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 bans that seem very much related to this law in Tennessee. It would seem to suggest that all of them are constitutional, at least as against an equal protection challenge. There is 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 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 an important decision to make on taking office of whether they disavow the position of the Biden administration in this very case.

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 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. 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 minors. 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.

Well, Adam, as always, thank you very much. Thank you, Michael. We'll be right back. We'll be right back. Here's what else you need to know today. On Wednesday, Pete Hegseth 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 Megyn Kelly of Sirius XM Radio, Hegseth 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 there are 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 Hegseth 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 UnitedHealthcare, 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 Central Park. Thompson was declared dead shortly after. Today's episode was produced by Diana Wynn, Sydney Harper, and Will Reed. It was edited by Diana Wynn, Sydney Harper, and Will Reed. It was edited by Devin Taylor, contains original music by Marian Lozano and Dan Powell, and was engineered by Alyssa Moxley.

Our theme music is by Jim Brunberg and Ben Lansford of Wonderly. That's it for the Daily. I'm Michael Boborjo. See you tomorrow.