Unpacking the Oral Arguments Over Youth Gender Transition Treatment

Happy Friday! For reasons beyond our comprehension, there is a color of the year. Even more incomprehensibly, the color for 2025 will be … brown. 

Quick Hits: Today’s Top Stories

• Syrian rebels on Thursday entered the western Syrian city of Hama, south of Aleppo, just over a week after the coalition led by the Islamist group Hayat Tahrir al-Sham began its offensive against Syrian President Bashar al-Assad’s forces. Assad’s forces retreated, redeploying outside the city. Over the weekend, rebel forces took Aleppo, entering the city for the first time since they were pushed out by Syrian government forces in 2016. 
• Authorities are still searching for the man who fatally shot Brian Thompson, the CEO of UnitedHealthcare, in midtown Manhattan on Wednesday. Police have released a picture of the man they believe was the shooter—who they said rented a room in a nearby hostel with a fake New Jersey ID—and have also shared that they discovered bullet casings marked with the words “deny” and “delay.”
• A strong 7.0 magnitude earthquake struck off the coast of Northern California on Thursday morning shortly before 11 a.m. PT, prompting a short-lived tsunami warning for the area. There were more than 30 aftershocks later on Thursday, though there were no reports of serious damage, injuries, or landslides following the quake. 
• Supreme Court Justice Neil Gorsuch recused himself from a case regarding environmental regulations related to a railroad in Utah, according to a letter from the Supreme Court’s clerk. Congressional Democrats urged Gorsuch to recuse himself over his ties to Philip F. Anschutz, a billionaire who, though not a part of the case, owns oil wells in Utah and could benefit from the increased access to them that the railway project could provide. The letter did not explain Gorsuch’s thinking, stating only that the decision was “consistent with the Code of Conduct for Justices of the Supreme Court of the United States.” The case is set to be argued later this month. 
• Estonian officials said on Thursday that Russia’s intelligence services were responsible for a spate of vandalism incidents in the country since October 2023. Authorities said 11 men were carrying out acts of vandalism at the behest of Russian intelligence, breaking the windows of the Estonian interior minister’s car and throwing paint on several World War II memorials, among other acts. 
• A federal judge on Thursday rejected a plea deal between prosecutors and Boeing that would have seen the airline company plead guilty to lying to the Federal Aviation Administration before two 737 Max crashes in 2018 and 2019 that killed several hundred people. Boeing agreed to the deal in July, but the judge objected to the fact that under the agreement the Justice Department, rather than the court, would approve the monitor to enforce the agreement. He also took issue with a provision in the deal that would have race be a consideration in the hiring of the independent monitor. The parties have 30 days to decide what to do next.  

A Skrmetti Skirmish 

The Supreme Court on Wednesday heard oral arguments in what could prove to be the most politically divisive case since the 2022 Dobbs decision that overturned Roe v. Wade. 

The arguments in United States v. Skrmetti center on a relatively narrow argument over whether Tennessee’s law banning gender transition treatment for all minors constitutes discrimination based on sex and therefore triggers heightened scrutiny under the equal protection clause of the 14th Amendment. But that didn’t mean the oral arguments were quite so narrow, featuring a pointed back-and-forth with several of the justices and touching on a wide array of issues ranging from how European countries handle gender treatment for minors to women’s sports to parental rights. 

How did United States v. Skrmetti make its way to the Supreme Court? 

The case involves Senate Bill 1—a Tennessee law adopted last spring that imposed an across-the-board ban on gender transition treatment for minors. The law prohibits: 

“Medical procedures from being administered to or performed on minors when the purpose of the medical procedure is to: (1) Enable a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex; or, (2) Treat purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”

The law also stipulates that patients under the age of 18 can still use hormone treatments or puberty blockers to treat conditions like congenital defects or the early onset of puberty, but not for the purpose of sex transitions or to treat gender dysphoria.  

A group of transgender teenagers, their parents, and a Tennessee doctor brought a challenge to courts in April 2023 that the Biden administration joined, seeking a preliminary injunction to prevent the law from going into effect while it was being litigated. The District Court agreed to the delay when it came to prohibiting gender treatments using hormone and puberty blockers, but it allowed the ban on transition surgeries to continue. The judge argued that the challengers did not have legal standing to contest the surgery ban since the teenage plaintiffs had not expressed an intent to undergo those surgeries.

The Sixth Circuit Court of Appeals reversed the District Court’s decision in September 2023, fully reinstating the Tennessee ban as well as an injunction on a similar ban in Kentucky that was challenged in a separate case. The challengers then appealed to the Supreme Court. 

U.S. Solicitor General Elizabeth Prelogar, arguing for the Biden administration, made the case on Wednesday that the Tennessee law amounts to a distinction based on sex. More specifically, Prelogar argued that whether an individual has access to the treatments hinges on their sex at birth. “The law restricts medical care only when provided to induce physical effects inconsistent with birth sex,” Prelogar told the justices. “Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can. If you change the individual’s sex, it changes the result. That’s a facial sex classification, full stop, and a law like that can’t stand on bare rationality.” Prelogar also noted that the Tennessee ban is categorial and that the state “made no attempt to tailor its law to its stated health concerns.”       

If the justices buy her argument, that would subject the law to heightened or intermediate scrutiny. Under the heightened scrutiny standard, Tennessee would have to prove the law furthers and is substantially relevant to an important government interest, rather than simply passing a rational-basis review—the lowest tier of judicial review that the law can satisfy—if the court determines the state’s action is rationally related to a legitimate government interest. “Plenty of rational bases exist for these laws, with or without evidence,” the Sixth Circuit noted in its decision. “Rational basis review requires only the possibility of a rational classification for a law.”

Matthew Rice, representing the State of Tennessee, argued that the law doesn’t make distinctions based on sex at all, but rather on the medical purpose of treatments. “The law imposes an across-the-board rule that allows the use of drugs and surgeries for some medical purposes but not for others,” he told the justices. “Its application turns entirely on medical purpose, not a patient’s sex. That is not sex discrimination.” 

“Just as using morphine to manage pain differs from using it to assist suicide, using hormones and puberty blockers to address a physical condition is far different from using it to address psychological distress associated with one’s body,” he added. 

The liberal-leaning justices seemed highly skeptical of this distinction. “The whole thing is imbued with sex,” Justice Elana Kagan told Rice. “You might have reasons for thinking that it’s an appropriate regulation, and those reasons should be tested and respect given to them, but it’s a dodge to say that this is not based on sex, it’s based on medical purpose, when the medical purpose is utterly and entirely about sex.” Justice Ketanji Brown Jackson suggested that even if the Tennessee law involves medical purpose that doesn’t mean it isn’t also “drawing a line on the basis of sex.”   

In an extended change with Jackson, Rice argued that to say there are sex-based distinctions in the law “is to equate fundamentally different medical treatments.” He added that “giving testosterone to a boy with a deficiency is not the same treatment as giving it to a girl who has psychological distress associated with her body.” 

The law itself gets at the heart of the debate over transgender treatments for minors, namely whether they are medically beneficial or harmful. Several of the justices probed that very question. Justice Samuel Alito mentioned the shift in several European countries toward restricting transition treatments for minors, citing a multi-year review conducted by Dr. Hilary Cass at the United Kingdom’s National Health Service (NHS) known as the Cass Review. “The rationale for early puberty suppression remains unclear, with weak evidence regarding the impact on gender dysphoria, mental or psychosocial health,” the review concluded. The NHS reversed its policy of regularly prescribing puberty-suppressing hormones (PSH), restricting them to clinical trials: “We have concluded that there is not enough evidence to support the safety or clinical effectiveness of PSH to make the treatment routinely available at this time.”  

Prelogar and Chase Strangio, the American Civil Liberties Union lawyer who represented the private plaintiffs bringing the challenge and the first transgender lawyer to argue before the court, tried to push back on the Cass Review and the European examples. “I stand by that there is a consensus that these treatments can be medically necessary for some adolescents,” Prelogar said. 

Their arguments highlighted the growing divide between some American medical associations and advocates of gender treatments for minors—the American Academy of Pediatrics and the American Psychological Association both filed briefs supporting the challenge—and European medical bodies. The consensus position and the evidence that undergirds it have come under increasing scrutiny. Justice Sonia Sotomayor seemed to agree with the challengers’ argument and highlighted how vulnerable the transgender youth population is, with high rates of suicidality and drug addiction.

The challengers argued that regardless of the broader debate over gender treatment, there’s evidence that gender treatments can be appropriate in at least some individual cases. Therefore, the Tennessee law’s sweeping prohibition is overly broad and would likely fail to pass a heightened scrutiny test. They noted that no European country has categorically banned gender treatment for minors. 

Some of the conservative justices, particularly Justices Brett Kavanaugh and John Roberts, seemed wary of the court becoming the arbiter of heated scientific and medical disputes about the efficacy of gender treatments. “The Constitution doesn’t take sides on how to resolve that medical and policy debate,” Kavanaugh said. “If the Constitution doesn’t take sides, if there’s strong, forceful scientific policy arguments on both sides in a situation like this, why isn’t it best to leave it to the democratic process?” 

“The court could write a very narrow opinion in this case,” Prelogar responded. “The court could say simply that when you prohibit conduct that’s inconsistent with sex, that is a sex-based line, so you do have to apply heightened scrutiny.”  

But Kagan pushed the challengers on whether applying the heightened scrutiny standard instead of the more deferential rational-basis standard would functionally result in all the state bans being overturned and undercut the authority of states to legislate in this area. “You seem to want to say, ‘No, you can do heightened scrutiny, but you can also make certain deferential moves towards the legislature,’” she said. “I guess I’m pressing you on whether that’s really true.” 

Prelogar responded by citing West Virginia’s restriction of gender treatments for minors, which requires two doctors to diagnose gender dysphoria as severe and medically necessary to prevent self-harm before providing treatment. The state also requires a mental health screening to detect any confounding diagnoses, as well as agreement from parents and an adolescent’s primary care physician, before treatment is administered. Prelogar argued West Virginia’s law likely wouldn’t run afoul of equal protection: “A law like that is going to fare much better under heightened scrutiny precisely because it would be tailored to the precise interests and not serve a more sweeping interest like the one asserted here in having minors appreciate their sex.” 

Some legal observers assessed the oral arguments—particularly, the questions from the conservative-leaning justices—as favoring a defeat for the challengers. But the silence of Justice Neil Gorsuch during the entire proceeding could potentially throw a wrench in those assessments. Gorsuch wrote the court’s only major opinion addressing transgender discrimination, Bostock v. Clayton, holding that an employer who fires an individual for being gay or transgender violates federal civil rights law. “It is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Gorsuch wrote in the opinion. Prelogar shied away from comparing the case at hand to Bostock, arguing instead, “We think it’s equal protection principles, as much as Bostock, that carries the day, although, of course, Bostock reinforces those principles.”

If the challengers’ arguments win out, laws restricting or banning gender treatment for minors in 26 states could be on the legal chopping block. If the respondents win, the U.S. will continue to see widely diverging transgender care regimes in states across the country, similar to the status quo of abortion law: Republican states banning or restricting the treatments and Democratic states passing “shield laws” to preserve access to gender treatment. The court will likely issue its ruling by early next summer.

Worth Your Time

• The fight over gay marriage taught Democrats the wrong lessons, writer Jeremiah Johnson argued for his Substack Infinite Scroll. “We’ve all seen progressive groups that treat every issue like a moral issue, where the maximalist stance is the only acceptable answer and there are no tradeoffs or costs to deal with. … Astonishingly, this approach did work for gay marriage. … But the problem with this Triumphalist approach is that it fails with almost every other issue. Activists have been yelling about abortion for decades and polls simply haven’t moved that much. Defund the Police was never popular and making it a topic of national discourse only made it less popular. Tradeoffs exist. … Most importantly, regular people simply do not like being lectured. They do not like to be scolded and nagged and told that they’re bad people for not believing the same thing as you do. But post-gay marriage, that became the default strategy of the left.” 
• Why are Bashar al-Assad’s forces collapsing so quickly in Syria? For Foreign Policy, Charles Lister explained what was happening when no one was looking. “Not only had Assad never truly ‘won’ his country’s civil war, but his rule has also been weakening for some time. His position is more vulnerable than ever before,” he wrote. “While the regime’s embrace of organized crime brings in at least $2.4 billion in profit each year from the sale of just one type of synthetic stimulant, none of that has helped the Syrian people. … HTS and other armed opposition groups have worked intensively since 2020 to enhance their own capabilities. HTS, in particular, has established entirely new units that have arguably changed the game on the battlefield in recent days. … The last time that Assad had to deal with multiple concerted challenges to his territorial control—back in 2015—his regime was pushed to breaking point, and Russia had to militarily intervene to save him. There will be no such savior today.” 

Presented Without Comment

The Hill: ‘Santos Claus’ Makes Return as Burchett’s Special Party Guest

Expelled Rep. George Santos (R-N.Y.) appeared at the Capitol on Thursday dressed in a Santa suit to attend Rep. Tim Burchett’s (R-Tenn.) famous annual 15-minute Christmas party.

Each year, Burchett hosts a quick Christmas party to ring in the holidays in Congress. Last year, his party stretched to 16 minutes, but he decided against it this year, saying he was “going back to the original 15 minutes” because he felt like the slightly longer event dragged on a bit.

Also Presented Without Comment

Stanford Review: EXCLUSIVE: The Review Interviews President Levin 

Stanford Review: What is the most important problem in the world right now?

President Levin: There’s no answer to that question. There are too many important problems to give you a single answer.

Stanford Review: That is an application question that we have to answer to apply here.

Also Also Presented Without Comment

NBC News: Secret Service Chief and Trump Assassination Task Force Member Get Into Screaming Match at Final Hearing

In the Zeitgeist

Did it seem like Taylor Swift’s Eras Tour has been going on for years? You’d be right, but the mammoth run is ending this weekend after almost two years, five continents, and almost 150 shows. Good thing all the Swifties out there have a holiday Lifetime movie inspired by Swift and her football player boyfriend to fill the void: 

Toeing the Company Line

• In the newsletters: Will explained why it would be hard to break up Google, and Nick explored (🔒) the pros and cons of Biden preemptively pardoning Liz Cheney before Trump takes office. 
• On the podcasts: Sarah is joined by Steve and Jonah to discuss South Korea and Syria on The Dispatch Podcast roundtable. 
• On the site: Mike reports on profiteering by Trump’s aides, Charlotte covers the situation in Syria and its regional implications, Drucker writes about how Democrats are evolving on immigration, and Kevin reflects on corporatism and the “swamp.”

Let Us Know

What do you make of Solicitor General Prelogar’s argument?