Tennessee law banning gender-affirming Care

Conservatives appear skeptical of challenge banning gender-affirming care for minors

By Josh Gerstein and Daniel Payne

12/04/2024

Transgender-rights advocates seeking to overturn a Tennessee law banning some gender-affirming care for minors got a chilly reception from the Supreme Court’s conservatives on Wednesday. But the silence of one justice in particular may have offered them a glimmer of hope.

Most of the court’s conservatives seemed inclined to leave in place a lower court ruling that allowed the state’s ban on hormone treatments and puberty blockers to remain in place, but the normally voluble Justice Neil Gorsuch asked no questions and offered no public comments during the two-and-a-half hour session.

Gorsuch’s decision to remain mute was particularly notable because he was the author of a surprise 6-3 decision four years ago that found employment discrimination against transgender people illegal under a longstanding federal law banning sex discrimination.

Opponents of the Tennessee law framed their arguments around Gorsuch’s 2020 ruling in Bostock v. Clayton County, contending that denying certain medicines to adolescents based on their sex amounted to discrimination and required strong justification from state officials.

It was unclear why Gorsuch, an appointee of President Donald Trump, chose not to engage Wednesday. With the court’s three liberals all appearing to support the plaintiffs challenging the Tennessee law, Gorsuch’s vote alone would not be enough to form a majority to require closer legal scrutiny for the ban. One more would be needed.

The outcome of the case is being closely watched by people on both sides of the issue because 26 states have passed laws in recent years that restrict gender-affirming care. Many of those laws have faced challenges in court, and the Supreme Court’s decision in the Tennessee case could have implications for the future of the laws in other states.

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In the U.S, more restrictions — and challenges — could be ahead. The incoming Trump administration has promised to reverse measures meant to increase access to gender-affirming care and promote inclusion of transgender people. But several justices also acknowledged that even after this case, a parent might bring a case before the court challenging a ban on care for their child.