Transgender care at issue in US Supreme Court’s latest culture war fight

Bengaluru — US Dr Susan Lacy had been caring for transgender patients for several years in Tennessee when, in 2023, everything changed.

In the span of a few months, the Republican-governed state banned healthcare providers from treating minors for gender dysphoria.

The Memphis gynaecologist, one of the plaintiffs who challenged the law in a case going before the US Supreme Court on December 4, recalled the “hype and hysteria” as public debate coarsened over the issue.

“Why all of a sudden it’s a problem is a little bit hard to understand,” said Lacy, who has her own medical practice and an adult child who is transgender. “I think that really comes from sort of a political motivation to create an issue that people can rally around.”

Gender dysphoria is the clinical diagnosis for significant distress that can result from an incongruence between a person’s gender identity and the sex they were assigned at birth.

Tennessee’s law aims to encourage minors to “appreciate their sex” by prohibiting puberty blockers or hormones used to help them live as “a purported identity inconsistent with the minor’s sex”.

Tennessee House of Representatives majority leader William Lamberth, a Republican who co-sponsored the measure, said in a statement that he was optimistic about the state’s case.

“This case is about protecting vulnerable young people who are experiencing gender dysphoria or other mental health crises from making the biggest mistake of their lives,” Lamberth said.

“These procedures are harmful, unproven and come with permanent, irreversible and life-changing consequences. States have a compelling interest in protecting minors from adult decisions they aren’t ready for,” Lamberth said.

To Lacy, an expert in hormone management, the swirling claims in the media and by some legislators that activists are carelessly pushing dangerous medications on vulnerable adolescents are not true, and are meant to stoke outrage.

“Actually listen to the patients. Actually listen to the physicians who are providing the care,” Lacy said. “You’re really seeing people that have a significant improvement in their lives.”

The Supreme Court is scheduled to hear arguments in an appeal by President Joe Biden’s administration of a lower court’s decision allowing enforcement of the ban, one of 24 such policies enacted by conservative legislators around the US.

The plaintiffs challenged the law as a violation of the US Constitution’s 14th Amendment promise of equal protection. Biden’s administration and other challengers including Lacy contend that banning care for youth with gender dysphoria discriminates against these adolescents based on sex and transgender status.

The case brings transgender rights, a major flashpoint in the US culture wars, to the nation’s highest judicial body just as president-elect Donald Trump prepares to take office on January 20. Trump pledged during his election campaign to restrict gender-affirming care and transgender sports participation.

Tennessee passed its law in March 2023 after a conservative political commentator’s criticism of Vanderbilt University Medical Centre’s transgender health clinic in Nashville went viral on social media, prompting Republican legislators to take action.

A filing to the Supreme Court by the office of Tennessee attorney-general Jonathan Skrmetti, a Republican, justified the state’s regulation by pointing to “scientific uncertainty” about the treatments, tightened restrictions on their use in some European countries, and “first-hand accounts of regret and harm” from people who discontinue or reverse gender-affirming medical intervention.

Tennessee has warned of long-term side effects such as diminished bone density or infertility — though the law allows these medications to be used to treat minors for any other reason, including congenital defects, precocious puberty or other conditions.

The Supreme Court’s 6-3 conservative majority has steadily moved American law rightward on other contentious issues including abortion, guns and race policies. But in a landmark 2020 ruling authored by conservative justice Neil Gorsuch, the court declared that a federal law called Title VII that bars discrimination in the workplace also protects gay and transgender employees.

If the Supreme Court sides with the challengers, it could rule that Tennessee’s ban is unconstitutional, or that the lower court must reconsider the state law under a more sceptical standard — an outcome that would make it harder for states to pass laws restricting transgender rights.

The court could rule that “discrimination against people because of their gender identity is sex discrimination subject to heightened scrutiny under the court’s precedents,” said Yale Law School professor William Eskridge.

Another issue with the law, Eskridge said, is that it denies a small group of Tennesseans access to a fundamental interest — “the rights of parents to make health decisions for their children”.

Biden’s administration contends that the law singles out transgender people to “enforce gender conformity and discourage adolescents from identifying as transgender”.

Under the law, “an adolescent assigned male at birth cannot receive puberty blockers or oestrogen to live and present as a female, but an adolescent assigned female at birth can,” the justice department said in a filing to the Supreme Court, adding: “That is sex discrimination.”

The state has “exaggerated the risks” of gender-affirming care while ignoring its benefits, the administration said, noting that major US medical organisations such as the American Academy of Pediatrics and the American Medical Association support the therapies for adolescents when deemed clinically necessary.

Meanwhile, denying treatment for gender dysphoria can cause psychological harm, with studies showing that up to a third of transgender high school students attempt suicide in a given year, the administration said.

Represented by the American Civil Liberties Union, several plaintiffs — including two transgender boys, a transgender girl and their parents as well as Lacy — sued Skrmetti and other officials to defend the treatments they have said improved their happiness and wellbeing.

The justice department intervened in the lawsuit. A federal judge blocked the ban in 2023 as likely violating the 14th Amendment. In a 2-1 decision in 2023, the Cincinnati-based sixth US Circuit Court of Appeals reversed the judge’s preliminary injunction.

Lacy began treating transgender patients in 2016. They now make up about a quarter of her practice.

“The most prevalent thing that (patients) would say is, ‘I finally feel like I can think correctly. I finally feel sort of at peace,” Lacy said. “I realised, there are many, many, people who need this care. And there are very few physicians that are providing this care.”

About a year after Lacy began treating these patients, one of her four children — now 23 — came out as transgender.

Deciding to join the legal fight against Tennessee’s law was easy, Lacy said, not only to share her experience caring for hundreds of transgender patients.

“But as a parent of a child who went through this,” Lacy said, “I was compelled from that standpoint.”

Reuters