The Supreme Court appears poised to uphold Tennessee’s ban on gender-affirming care for transgender youth after it heard arguments Wednesday in United States v. Skrmetti. The Biden administration and the American Civil Liberties Union argued that the law, which bans hormone therapy for transgender children but not cisgender children, is a form of sex discrimination, but right-wing justices who make up the court’s majority appeared to reject that argument. ACLU lawyer Chase Strangio, who has now become the first openly transgender lawyer to argue before the Supreme Court, describes the stakes and analyzes the reactions of the justices during the landmark case, which is expected to be decided next year. “It is precisely the role of the courts to step in when the government infringes on the individual constitutional rights of minority groups,” says Strangio. “People are suffering. They just want to be able to live their lives, and this law takes those opportunities away from them.”
This is a rush transcript. Copy may not be in its final form.
AMY GOODMAN: This is Democracy Now!, democracynow.org. I’m Amy Goodman.
The U.S. Supreme Court appears poised to uphold Tennessee’s ban on gender-affirming care for transgender youth after hearing arguments in a case that could have major repercussions for transgender people across the United States. The Biden administration and the American Civil Liberties Union argued against the ban, saying it’s a form of sex discrimination. But Chief Justice John Roberts and other right-wing justices appeared to reject that argument.
After the oral arguments, Tennessee Attorney General Jonathan Skrmetti spoke outside the Supreme Court.
ATTORNEY GENERAL JONATHAN SKRMETTI: The people of Tennessee, acting through a bipartisan supermajority of their elected officials, made a similar choice: They passed S.B. 1 to protect kids. Half the states in the United States have done the same. The Constitution allows the states to protect kids from unproven, life-altering procedures based on uncertain science. The states have exercised the power to regulate the practice of medicine for hundreds of years. …
The dramatic and unexplained increase in the use of these life-altering procedures on kids is exactly the sort of situation where the states should take notice and regulate. Adolescence is hard, and gender dysphoria is a heavy burden, and we need to remember that. But the evidence shows that the large majority of kids dealing with gender dysphoria will grow out of it, unless they’re put on these medications.
AMY GOODMAN: ACLU attorney Chase Strangio also spoke outside the Supreme Court, shortly after making history as the first openly trans lawyer to argue before the Supreme Court.
CHASE STRANGIO: Today, we were able to stand before this court and say the Constitution protects trans people just like it protects everyone else. It is breaking no new ground to recognize that when you are prohibited from receiving something because of your sex, that it is the role of the courts to ensure that the government can satisfy a burden of showing that it has a good reason for doing so. Tennessee did not meet their burden.
This law, we believe, is unconstitutional. And perhaps the scariest thing for all of us is that Tennessee’s arguments would apply if Congress tomorrow banned this care nationally for adolescents, for adults. They claim that there are no protections based on sex for the transgender people, like myself, who rely on this medical care.
AMY GOODMAN: That was ACLU attorney Chase Strangio, who argued before the Supreme Court. He’ll join us live in a moment. But first I want to turn to excerpts of Wednesday’s oral arguments. This is Tennessee Solicitor General Matthew Rice, followed by liberal Justice Sonia Sotomayor.
MATTHEW RICE: Our position is there is no sex-based classification. But to finish the answer, that to the extent that — that there — a law dealing with adults would pass rational basis review, that just means it’s left to the democratic process and that democracy is the best check on potentially misguided laws.
JUSTICE KETANJI BROWN JACKSON: So, in —
JUSTICE SONIA SOTOMAYOR: When you’re 1% of the population.
JUSTICE KETANJI BROWN JACKSON: Sorry. Mr. —
JUSTICE SONIA SOTOMAYOR: When you’re 1% of the population or less, very hard to see how the democratic process is going to protect you.
MATTHEW RICE: Well, Your Honor —
JUSTICE SONIA SOTOMAYOR: Blacks were a much larger part of the population, and it didn’t protect them. It didn’t protect women for whole centuries.
AMY GOODMAN: During the oral arguments, Justice Amy Coney Barrett, who was appointed to the Supreme Court by Donald Trump, asked if trans people have ever been discriminated against.
JUSTICE AMY CONEY BARRETT: We just head-on confront the question which you raise in the second part of your brief about whether transgender status should be a suspect class. One question I have is, at least as far as I can think of, we don’t have a history of de jure — that I know of, we don’t have a history of de jure discrimination against transgender people, right?
ELIZABETH PRELOGAR: So, I think you may be right that the discrimination, historical discrimination, against transgender people may not have been reflected in the laws, but I think there’s no dispute that there is a broad history here, and it hasn’t just been confined to private actors. I think that if you actually looked at the facts, there’s a wealth of evidence to suggest that transgender people throughout history have been subjected to violence and discrimination and maybe lost employment opportunities or housing opportunities, even in contexts where there might be state public employment at play.
AMY GOODMAN: That was U.S. Solicitor General Elizabeth Prelogar responding to a question from Justice Amy Coney Barrett. Justice Ketanji Brown Jackson, who was appointed by Joe Biden, expressed concern that the court was moving to undermine the foundations of what she called “bedrock equal protection cases.” She cited the 1967 decision in Loving v. Virginia that struck down a state ban on interracial marriage.
JUSTICE KETANJI BROWN JACKSON: And I guess my real concern — and maybe I’ll just ask you to react to my Loving parallel, because I’m getting kind of nervous — is that in Loving, those same kinds of scientific arguments were made. So, I’m reading here where the court says — the argument is that if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a state to treat interracial marriages differently from other marriages. On this question, the state argues the scientific evidence is substantially in doubt, and consequently, the court should defer to the wisdom of the state Legislature in adopting its policy of discouraging interracial marriages.
And so, for me, this kind of idea that the way we look at it is not, first, are you drawing these classifications, and then, state, give us your evidence so we can make sure that there’s a proper fit — if instead we’re just sort of doing what the state is encouraging here in Loving, where you just sort of say, “Well, there are lots of good reasons for this policy, and who are we, as the court, to say otherwise?” I’m worried that we are undermining the foundations of some of our bedrock equal protection cases.
CHASE STRANGIO: I share your concerns, Justice Jackson. I think one of the things that’s happening in this case is we’re seeing a lot of concerns that come in at step two of the analysis being imported into that........