On Wednesday, the Supreme Court engaged in oral arguments regarding United States v. Skrmetti. This lawsuit pertains to Tennessee's bill, SB1, which prohibits gender-affirming care for minors. Alabama had passed a similar bill, SB184, in 2022 and it came into effect a year later following a ruling by the 11th Circuit Court.

Protestors' Voices and Conservative Stances

Outside the Supreme Court Building on Wednesday morning, protestors passionately shared how access to gender-affirming care had saved their lives and those of their transgender children. Meanwhile, at a dueling event, conservative activist and media personality Matt Walsh declared, "We are not going to rest until every child is protected and trans ideology is entirely wiped from the earth."Both SB1 and SB184 criminalize providing specific medical treatments to transgender minors while allowing the same treatments for other purposes. The Alabama law specifically targets treatments "for the purpose of attempting to alter the appearance of or affirm the minor's perception of his or her gender or sex, if that appearance or perception is inconsistent with the minor's sex."In recent months, Republicans have repeatedly targeted transgender people and gender-affirming care in an attempt to gain political points. President-elect Donald Trump ran campaign ads suggesting Kamala Harris "is for they/them," and in September, Alabama Attorney General Steve Marshall filed an amicus brief arguing that employer healthcare plans should not be required to cover necessary gender-affirming care.South Carolina Congresswoman Nancy Mace has remained in the headlines by directly attacking Congresswoman-elect Sarah McBride, who will be the first openly transgender member of the House. Mace also introduced federal "bathroom bills," legislation that makes it illegal for transgender people to use the bathroom matching their identity. Alabama state representative Susan DuBose has promised to champion similar legislation during the upcoming session.

The Case for Applying Strict Scrutiny

Over more than two hours on Wednesday morning, U.S. Solicitor General Elizabeth Prelogar and ACLU attorney Chase Strangio made a compelling case for applying strict scrutiny to SB1. Prelogar pointed directly to the text of SB1, explaining why the court should view the law as sex-based discrimination. She said, "It says you can't have these medications to live or identify in a manner inconsistent with your sex. That is quintessentially imposing sex-based rules and expectations on adolescents in the state.""The legislature was quite upfront that part of the interest here is in ensuring that minors appreciate their sex and not become disdainful of their sex, or as Judge White put in dissent below, that they look and live like boys and girls," Prelogar continued.The liberal justices generally seemed to side with Prelogar's arguments, but the conservative justices were more skeptical. Justice Samuel Alito repeatedly referred to recent restrictions on gender-affirming care in European countries, despite those being less extensive than those in Tennessee and Alabama, and cited the Cass Review multiple times. An independent report commissioned by the UK's National Health Service, the Cass Review, questioned existing research on transgender healthcare and recommended further restrictions.However, the Cass Review has faced harsh criticism from other experts in the field. In one report, critics claimed the review "repeatedly misuses data and violates its own evidentiary standards by resting many conclusions on speculation." And earlier this year, two UK gender clinicians alleged that the lead author, Hilary Cass, was personally opposed to gender-affirming care and recommended people read the controversial anti-transgender book Irreversible Damage before she began working on the report.

Comparisons to Loving v. Virginia

During the oral arguments, Justice Ketanji Brown Jackson repeatedly compared the case to Loving v. Virginia, the 1967 Supreme Court case that struck down bans on interracial marriage. Jackson even told Prelogar at one point that she wondered "whether Virginia could have gotten away with what they did here by just making a classification argument the way that Tennessee is in this case."Justice Elena Kagan was also skeptical of Rice's arguments on behalf of Tennessee, calling it "a dodge to say that this is not based on sex—it's based on medical purpose—when the medical purpose is utterly and entirely about sex."During Rice's time speaking before the court, he repeatedly discussed "detransitioners," people who identified with a different gender and then changed their minds, and questioned the benefits of transitioning. "And the question of how many minors have to have their bodies irreparably harmed for unproven benefits is one that is best left," he began saying at one point.Justice Sonia Sotomayor quickly interrupted, saying, "I'm sorry, counselor. Every medical treatment has a risk. There is always going to be a percentage of the population under any medical treatment that's going to suffer a harm."Like Rice, Chief Justice John Roberts seemed inclined to believe that legislative bodies, rather than the courts, should make decisions about the proper regulation of gender-affirming care.Jackson pointed out that she believes the court must adjudicate potential unconstitutional legislation, stating, "I understood that it was bedrock in the equal protection framework that there was a constitutional issue in any situation in which the legislature is drawing lines on the basis of a suspect classification."The Supreme Court is expected to issue a ruling on United States v. Skrmetti by some time next summer. Legal experts generally concluded after listening to the oral arguments that there is likely a majority on the court in favor of upholding the Tennessee law.