WASHINGTON, D.C. — A majority of justices appeared inclined to uphold Tennessee’s ban on gender-affirming care for minors — as the conservative members of the Supreme Court debated Wednesday what role, if any, they should take to intervene when a state wants to halt access to gender-affirming care. 

The issue at the core of United States v. Skrmetti is whether banning a certain kind of health care for just one group — transgender youth — violates the 14th Amendment’s equal protection clause by discriminating based on sex. Laws that make sex-based classifications are subject to a more rigorous legal review to determine their constitutionality, and it would be difficult for Tennessee’s law to survive that scrutiny. The Biden administration, alongside attorneys for the ACLU and Lambda Legal representing trans youth and their families, want the Supreme Court to vacate an appeals court decision that allowed Tennessee’s ban to take hold.

During oral arguments on Wednesday, however, the justices frequently turned the conversation to broader subjects, like the benefits and risks of gender-affirming care overall, and whether transgender people should be considered a protected class under the 14th Amendment. Several of the conservative justices seemed wary of the potential domino effects of weighing in on one state’s ban amid 25 other states banning gender-affirming care across the country.

The justices also differed in how they described transgender people and, to varying degrees, often misgendered trans people and equated them to their sex assigned at birth. Those differing descriptions came into play as the justices asked questions regarding whether the law draws any sex-based lines. 

Tennessee’s solicitor general defended the state’s ban by arguing that it does not prohibit medical care based on sex, and instead prohibits medical care based on use — namely, if it is being used to assist in a gender transition. Justices Ketanji Brown Jackson, Sonia Sotomayor and Elena Kagan pushed back on this line of argument. 

“The whole thing is imbued with sex. It’s based on sex. You might have reasons for thinking it’s an appropriate regulation and those reasons should be tested and respect given to them, but it’s a dodge to say ‘this is not based on sex, it’s based on medical purpose,’ when the medical purpose is utterly and entirely about sex,” Kagan said. 

Matthew Rice, the state’s solicitor general, maintained that although Tennessee’s law portrays gender-affirming care as a treatment “that might encourage minors to become disdainful of their sex” — and says that banning such care will “encourage minors to appreciate their sex” — the ban does not draw sex-based lines. 

As conservative justices on the court asked how European countries have regulated gender-affirming care and whether it should be the role of the Supreme Court to overrule state medical regulations, Solicitor General Elizabeth Prelogar and Chase Strangio, co-director of the ACLU’s LGBT & HIV Project, reminded the justices that they are not asking the court to decide the merits of gender-affirming care or even to prevent Tennessee from regulating the care. But banning such care outright for only one group of people is not regulating it, Prelogar said.

Chief Justice John Roberts suggested that the medical nuances of gender-affirming care are too complex for the court to directly address, adding: “we’re not best situated to address issues like that.” 

“Doesn’t that make a stronger case for us to leave that to the legislative bodies rather than try to determine them ourselves?” he asked Prelogar.

“It would be a pretty remarkable thing for the court to say just because we’re in the space of medical regulation you’re not going to apply the traditional standards that are normally applied when there’s a sex classification,” Prelogar said as part of her response. 

Notably, Justice Neil Gorsuch remained silent during the deliberations. He wrote the majority opinion in the Supreme Court’s 2020 decision in Bostock vs. Clayton County, in which the court held that discrimination on the basis of sexuality or gender identity constitutes unconstitutional sex discrimination.

Following oral arguments, the justices will deliberate on the case, though the decision is not expected to be handed down until the end of the court’s term in June 2025.