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Oral arguments set Dec. 4 before U.S. Supreme Court in Tennessee gender affirming care ban

Oral arguments are set for Dec. 4 in what is expected to be a test case in determining whether transgender minors are a protected class in the United States.
J. Holly McCall
/
Tennessee Lookout
Oral arguments are set for Dec. 4 in what is expected to be a test case in determining whether transgender minors are a protected class in the United States.

A 16-year-old transgender adolescent challenging Tennessee’s law against gender affirming care said she doesn’t want to return to the “dark place” she was in mentally before she was able to access care doctors prescribed for her.

“I want this law to be struck down so that I can continue to receive the care I need, with the support of my parents and my doctors, and have the freedom to live my life and do the things I enjoy,” said one of three teens whose case is being taken up by the U.S. Supreme Court.

Oral arguments are set for Dec. 4 in what is expected to be a test case in determining whether transgender minors are a protected class in the United States.

Only after years of “debilitating distress” caused by gender dysphoria and then through deliberation with parents and doctors did the child and two others involved in the lawsuit receive puberty-delaying medication and hormone therapy that alleviated their suffering, according to a court brief.

One of the teens, identified as John Doe, said in the brief he went through a lot “to finally get to [a] happy, healthy place,” and he “desperately hope[s] [it] doesn’t all get taken away.”

The American Civil Liberties Union, ACLU of Tennessee, Lambda Legal and Akin Gump Strauss Hauer & Feld LLP filed the lawsuit on behalf of three families and Dr. Susan Lacy of Memphis.

I’m hopeful (the Supreme Court) will see it the way the 6th Circuit did and that is we absolutely have not only a right but I would say that we have an obligation to protect children with this type of legislation.
Senate Majority Leader Jack Johnson, R-Franklin

The question before the court is whether Tennessee’s law prohibiting all gender-affirming medical treatments or other gender dysphoria treatments for minors violates the Equal Protection Clause of the 14th Amendment.

Senate Majority Leader Jack Johnson told the Lookout he is “grateful” to the court for taking up the case after the Sixth Circuit Court of Appeals overturned a ruling by U.S. District Court Judge Eli Richardson that the law violates equal protection.

“I’m hopeful they will see it the way the 6th Circuit did and that is we absolutely have not only a right but I would say that we have an obligation to protect children with this type of legislation,” Johnson said.

Johnson, a Franklin Republican, introduced Senate Bill 1 in 2023 with House Majority Leader William Lamberth after reports surfaced that Vanderbilt University Medical Center was providing treatment for transgender young people. He led a rally along with Republican U.S. Sen. Marsha Blackburn in October 2022 at Nashville’s Legislative Plaza before sponsoring the bill.

Vanderbilt said at the time none of the gender-affirming care for children involved any form of surgery, even though it wound up suspending all gender-affirming care.

Still, Johnson moved forward with the bill and continues to say he is “passionate” about the law the Legislature passed “to protect children from these barbaric procedures.”

Johnson also said he believes the case is important in establishing states’ rights and state sovereignty to maintain the “ability to make decisions here in Tennessee about what we think is best for the children of Tennessee.”

Challengers say state argument flawed

The challengers’ brief contends the law failed to enact a total ban on the use of puberty blockers and gender-affirming treatment and, instead, was adopted because the medical care allows transgender adolescents to “live” and “identify” in ways the state finds “inconsistent” with their sex assigned at birth. The filing says the law is designed to “encourage minors to appreciate their sex” by barring treatment “that might encourage minors to become disdainful of their sex.”

Tennessee, along with many other states in the South, has become a testing ground for targeted assaults on the constitutional rights of trans Tennesseans.
Lucas Cameron-Vaughn

Thus, it says, the law doesn’t completely outlaw puberty-delaying medication and hormone therapy but prohibits it only when treatment is used to “depart” from what the state considers “typical of a minor’s sex assigned at birth.”

Judge Richardson of Nashville ruled in favor of plaintiffs after applying what is called “heightened scrutiny” because the law “imposes disparate treatment on the basis of sex.”

The 6th Circuit Court of Appeals reversed that ruling, though, and the U.S. Supreme Court opted to take up the case at the request of the ACLU and Lambda Legal.

Families describe painful struggle

Attorneys for the plaintiffs filed their brief in August laying out what they say are “fundamental flaws” of the 6th Circuit’s decision, including “brazen disregard of longstanding sex discrimination precedent,” in addition to “significant harms” the ban has had on transgender youth statewide.

“Tennessee, along with many other states in the South, has become a testing ground for targeted assaults on the constitutional rights of trans Tennesseans. Every day this law remains in place, it inflicts further pain, injustice and discrimination on trans youths and their families,” said Lucas Cameron-Vaughn, staff attorney for ACLU of Tennessee.

One parent who is a plaintiff said, “it was incredibly painful watching my child struggle before we were able to get her the life-saving health care she needed. We have a confident, happy daughter now, who is free to be herself and she is thriving.”

She said Tennessee’s ban forced the family to take expensive out-of-state trips for treatment and, ultimately, could cause them to move from Tennessee.

“No family should have to make this kind of choice,” she said.

Cameron-Vaughn predicted that failure by the Supreme Court to protect trans Tennesseans’ access to medical care will embolden politicians to discriminate further against people based on their looks, whom they love and how they choose to start their families.

Senate Majority Leader Jack Johnson, R-Franklin, sponsored the measure banning gender affirming care that will be argued at the U.S. Supreme Court.
John Partipilo
/
Tennessee Lookout
Senate Majority Leader Jack Johnson, R-Franklin, sponsored the measure banning gender affirming care that will be argued at the U.S. Supreme Court.

Senator claims “irreparable damage”

Johnson acknowledged that because of federal laws he has no idea how many Tennessee children suffer from gender dysphoria. But he said proponents of the law “know that surgeries were taking place” in Tennessee, even though Vanderbilt said it wasn’t performing surgeries, and that “more than a few children” were being prescribed with what he described as “harmful drugs that do irreparable damage.”

He also said the suicide rate for adults and children who go through gender affirming treatment is higher than national averages.

Despite being “fierce defenders” of parents’ rights, even those desperate for treatments, proponents of the law believe the state has a “compelling interest” to protect children, Johnson said, especially in regard to medical procedures.

A brief filed with the Supreme Court by the Academy of Pediatrics and numerous medical groups contradicts much of his assertion.

It points toward a study of nearly 50 transgender adolescents that found the potential for suicide decreased by a “statistically significant degree” after gender-affirming hormone treatment started. Another study published in January 2023 found decreases in depression and anxiety among 315 participants ages 12 to 20 who received gender-affirming care.

Those were among several studies cited by the plaintiffs, who say the 6th Circuit Court’s opinion and state’s argument rely on “factually inaccurate” claims and ignore the medical community’s recommendations.

The brief also contradicts the state’s claim that use of puberty blockers and hormone therapy to treat adolescent gender dysphoria is “experimental in nature and not supported by high-quality, long-term medical studies.” The medical community’s brief says that argument ignores a “significant body of research.”

In addition, the medical groups’ brief disagrees with the state’s view that “the risks likely outweigh the benefits” of puberty blockers and hormone therapy for transgender adolescents. They say research shows use of the medications is safe and effective.

The brief also says no studies exist to support the state’s claim that patients might “regret their treatment decisions” and decide to “detransition,” regardless of whether they receive treatment.

This story was originally published by the Tennessee Lookout.

Sam Stockard is a veteran Tennessee reporter and editor with the Tennessee Lookout, having written for the Daily News Journal in Murfreesboro, where he served as lead editor when the paper won an award for being the state's best Sunday newspaper two years in a row. He has led the Capitol Hill bureau for The Daily Memphian. His awards include Best Single Editorial from the Tennessee Press Association.
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