The Supreme Court’s arguments on transgender care
VIEW FROM THE COURT
on Dec 4, 2024
at 6:50 pm
Demonstrators outside the court on Wednesday. (Katie Barlow).
The largest case of this term is being argued today and there is excitement in the chilly Washington atmosphere. Demonstrators from both sides of United States v. Skrmetti – the dispute over the access to hormone therapy and puberty blocking drugs for transgender teens – have arrived early at the courthouse and will remain there until the argument is concluded after noon. (Today may not have been the group’s first choice but it can be very competitive to secure such slots. Tennessee Attorney General Jonathan Skrmetti is among those who will be sworn in to the Supreme Court Bar today. He is a Republican and is also the named respondent of the case. In 2017, the then-New Jersey Governor Chris Christie was the last prominent lawyer to join the bar on the same day. In the guest box of the justices, I either see Dr. Patrick Jackson (husband of Justice Ketanji Brown Jackson) or his twin brother William Jackson, a lawyer. Each has attended arguments before, and I have probably mistaken one for the other, as Justice Jackson described in her memoir as having once memorably done herself when all three were undergraduates at Harvard.
Ashley Kavanaugh, the wife of Justice Brett Kavanaugh, is also in her seat in the guest box today.
In the press section, I am fortunate today to be seated next to Melissa Brown, the state political reporter for The Tennessean newspaper of Nashville. She identifies some Tennesseans in the courtroom including Gov. Bill Lee, William Lamberth, the state House Majority leader and Jack Johnson, the state Senate Majority leader are all Republicans who supported SB 1, the state law at issue. All three were Republicans and supported the state law SB 1, which was at the heart of the case. As far as Brown can tell, at least one parent is also present. Skrmetti will move to the Tennessee counsel’s table when the justices assume the bench and the bar induction has been completed. Elizabeth Prelogar, the Solicitor-General, is making her last argument before President Biden’s administration leaves office. (However, for the first week in January the current administration is still in office. Prelogar would make a logical amicus in the case Free Speech Coalition v. Paxton. This is about a Texas law that tries to impose age verification measures on websites offering sexually-explicit material. Strangio is the first openly transgender lawyer who has appeared before the Supreme Court. Asked about this yesterday on a press call, Strangio deferred to the team of lawyers at the ACLU who work on transgender cases and said he was “truly honored” to have this opportunity.
Chase Strangio arguing for the private plaintiffs. (William Hennessy).
On today’s call sheet Prelogar and Strangio are each scheduled for 15 minutes of arguments, while Tennessee Solicitor-General Matthew Rice is scheduled for 30 minutes. Anyone who has attended Supreme Court arguments will know that these are just suggestions. Prelogar will face about 45 minutes of seriatim questioning, Strangio about a half hour, and Rice barely five minutes. Prelogar will face about 45 minutes of seriatim questioning, Strangio about a half hour, and Rice barely five minutes.
Prelogar faces some tough questioning from the court’s conservatives, including Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, who grills her for a prolonged period about “the state of medical evidence at the present time.” There is a fair amount of discussion about recent transgender treatment developments in Sweden, Finland, and the United Kingdom.
Strangio also faces tough questions, but is well prepared with page citations to briefs and the Joint Appendix to back up his arguments that the Tennessee law creates sex-based classifications that violate the 14th Amendment’s equal protection clause. Strangio asks Chief Justice Roberts if he can answer a question when his red light indicates that his time is up. He suggests that these laws might survive a level of scrutiny because “it’s wholly different state interests” that are being asserted. He leaves aside any details about himself and the ACLU challenging those laws. Rice responds, “Justice Kagan… we think that’s the request for a substantive rights to engage in nonconforming behavior.” We don’t think it’s actually drawing a line based on sex.”
In her rebuttal, closing out the lengthy argument, Prelogar goes to one of her preferred rhetorical tools.
“Finally, I think the court should think about the real-world consequences of laws like SB1,” she says. She refers to one of the plaintiffs challenging the Tennessee law, identified in court papers as Ryan Roe, a 16-year-old transgender boy who relied on testosterone treatments to deal with his gender dysphoria.
“Ryan’s gender dysphoria was so severe that he was throwing up before school every day,” Prelogar says. “Ryan has told the court that getting these medication after a careful consultation with his doctors and parents has saved his live,” Prelogar says. His parents claim he is now thriving. But Tennessee has come in and categorically cut off access to Ryan’s care, and they say this is about protecting adolescent health, but this law harms Ryan’s health and the health of all other transgender adolescents for whom these medications are a necessity.”
The case is submitted. Some advocates will address their supporters from either side outside. The debate over this controversial issue will not be resolved today.
