Right-Wing Justices Had to Help Anti-Trans Lawyer During SCOTUS Hearing

A majority of justices on the U.S. Supreme Court appear supportive of keeping intact a Tennessee law that forbids gender-affirming treatment options for transgender youth.

Tennessee’s ban on gender-affirming care, often referred to as SB1, restricts health care providers from issuing trans children prescriptions for puberty blockers or hormone treatments. It also bans surgeries for transgender minors, a treatment option that is only used on older teenagers and only in extreme situations, typically after several years of therapy.

Twenty-six states in the U.S. currently have bans or restrictions on gender-affirming care for transgender youth, and in some cases, for trans adults, too.

The Tennessee law does not forbid the same treatment options when they are being used by cisgender children in the state for other health needs. The discrepancy prompted children, their family members and their health care providers to file a lawsuit against the law. The case, titled U.S. v. Skrmetti, was argued by ACLU lawyer Chase Strangio at the Supreme Court on Wednesday.

Strangio made history by being the first openly trans person to argue a case before the court, doing so for around 40 minutes. U.S. Solicitor General Elizabeth Prelogar, representing the federal government, also argued before the court in support of blocking the ban. Tennessee Solicitor General J. Matthew Rice spoke on behalf of Tennessee lawmakers in favor of keeping the ban in place.

Strangio and Prelogar argued that the ban amounted to sex-based discrimination, in violation of the 14th Amendment’s equal protection clause. Because the law barred doctors from prescribing transgender youth medications that could be used by cisgender peers for other health issues, they argued, the law was discriminatory on the basis of sex.

“SB1 has taken away the only treatment that relieved years of suffering for each of the plaintiffs,” Strangio said in his statements.

Gender-affirming treatments aren’t just safe, but are also overwhelmingly viewed by the medical community as being potentially life-saving — a point that Strangio himself noted in a personal essay for Truthout in 2021.

Conservative bloc members of the court made it clear to observers that they were likely to favor Rice’s position on the question before them, with many refusing to acknowledge established facts about gender-affirming care. Justice Brett Kavanaugh, for example, wrongly suggested that both allowing and banning gender-affirming care presented equal potential “harms,” implying that youth who receive gender-affirming treatment could, in the future, regret their decision.

“For us to come in and choose one side of that, knowing that either way people are going to be harmed — there’s no perfect way out,” Kavanaugh said.

In fact, there is a multitude of evidence demonstrating that detransitioning is incredibly rare, with one recent study showing that it happens in fewer than 1 percent of cases.

Kavanaugh also tried to interject the issue of transgender athletes in youth sports. In response to Kavanaugh’s comments, Prelogar noted that the issues were unrelated.

Justice Clarence Thomas attempted to claim that Tennessee’s ban on gender-affirming care for trans youth wasn’t really a ban at all, in terms of sex discrimination, but rather that it disallowed such care based on a person’s age.

“Why isn’t this simply a case of age classification?” Thomas posited during the hearing.

Notably, cisgender children in the state can still access these types of medication, as long as the medication is not prescribed for reasons relating to their gender identity.

Chief Justice John Roberts suggested that the matter should be left to the states, despite such bans unfairly restricting the right of trans children to seek adequate medical care.

The Constitution leaves the question over whether medical care is safe or requires regulation “to the people’s representatives, rather than to nine people, none of whom is a doctor,” Roberts said.

On at least two separate occasions, observers of the case noted that conservative justices actually had to assist Rice with some of his arguments and responses, as he appeared to slip up while trying to make his points in favor of the anti-trans law.

Elie Mystal, justice correspondent for The Nation, noted that Roberts had to jump in at one point “to try to save the floundering Rice” when the lawyer struggled to respond to questions from liberal bloc Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson. Mystal, who frequently reports on goings-on at the court, wrote in a Bluesky post that Roberts “only does this when his side is getting the shit kicked out of it by the liberal women, as was just happening.”

Alejandra Caraballo, a transgender clinical instructor at Harvard Law’s Cyberlaw Clinic, also recognized that Thomas was helping Rice during the hearing, noting there was “a lot” of “back and forth” between the two.

“Clearly, [Thomas is] trying to salvage some of his mistakes earlier,” Caraballo added.

Notably silent during the ordeal was Justice Neil Gorsuch, a conservative who authored an opinion in favor of trans rights four years ago. Caraballo and others interpreted his silence as an indication that he was possibly shifting his views toward accepting Tennessee’s ban, in line with the other conservative justices.

Caraballo expressed pessimism about the chance of a ruling overturning the state ban.

“I can easily see a 6-3 decision from [Justice Samuel] Alito that basically says it is not a sex based discrimination and trans people are not a quasi suspect class which would relegate explicit discriminations to rational basis,” Caraballo wrote on social media. “This would be a catastrophic decision.”

Evan Urquhart, founder of Assigned Media, a news site that focuses on combating anti-trans propaganda, expressed similar sentiments.

“The law doesn’t care about our lives. That was my big takeaway,” Urquhart wrote on Bluesky. “It doesn’t care if our treatments are necessary or unnecessary, and it doesn’t care if the states help us or harm us. Some of the judges may care. But the law doesn’t.”