SCOTUS is considering whether Tennessee’s total ban on transgender medical care for minors violates the Equal Protection Clause, and Liz and Rebecca have some thoughts. They explain what the oral arguments last month revealed and what the stakes are for the real people who will be affected by the Court’s decision.
Background
NYT: "Opinion – The Supreme Court Just Showed Us What Contempt for Expertise Looks Like”
SCOTUSblog: Supreme Court appears ready to uphold Tennessee ban on youth transgender care
Cases
Rebecca Markert: Welcome to We Dissent the podcast with secular women attorneys discussing religious liberty issues in our federal and state courts and our work to keep religion and government separate. I’m Rebecca Markert with Americans United.
Liz Cavell: And I’m Liz Cavell with the Freedom From Religion Foundation. Today we are going to cover a case that’s being reviewed by the Supreme Court right now. The case is called United States versus Skrmetti. You may have heard of it. It is a case involving a state’s total ban on gender affirming care for minors, and it’s the first time that the Supreme Court is considering this issue of gender affirming care and states’ laws that are trying to regulate and ban it.
Rebecca Markert: There are actually 23 other states that have a similar ban on the books. We saw an explosion of these bans in 2023, which was not surprising because that was the first legislative session after Dobbs versus Jackson came down overturning Roe versus Wade. And that of course was also a year when we saw a dramatic increase in anti-trans rhetoric as well. One of the questions that our organizations get asked a lot is, why are we focusing on this case? US versus Skrmetti does not implicate the Establishment Clause or the free exercise clause. So why do AU and the Freedom From Religion Foundation care about this case? Well, it’s pretty simple. If you are a loyal listener, you’ve heard us espouse this before, if you care about the separation of church and state, you are also going to care about bodily autonomy rights. Our constitution’s guarantee of church state separation means that no one can be compelled to live under the religious rules of another and that everyone should be able to live as we identify and as we believe so long as we don’t harm others.
For decades, though our opponents have worked to tear down the wall of separation between church and state, especially when it comes to personal autonomy involving gender and sexuality, often explicitly justifying their attacks with their own version of theology. You see this obviously with Christian nationalist opposition to marriage equality for same-sex couples, and we see it often and still with attacks on reproductive freedom across the country.
It was no less true in the case of US versus Skrmetti, which involves a Tennessee state law, SB 1 banning gender affirming care for minors in the state of Tennessee. Notably state representative Chris Todd who co-sponsored the version of the law that’s before the court. Cited Proverbs and his own religious beliefs in support of denying this care for minors. And as you would imagine, we oppose any arguments that are based on Holy books. Those arguments must never decide who has freedom and equality in America. Whatever the context, transgender people should be free to express their gender according to their beliefs. They should not be required to live by another person’s theology of what a man or a woman is, and we believe that they should have equal access to medical care based on scientifically informed conversations they have with their own doctor. Church/state separation protects all of us, and we are especially concerned when attacks like this come for our more vulnerable and marginalized communities.
Liz Cavell: That’s right. And one more thing I’ll say about this, and we too get this question even sometimes from our supporters, which is why are church state separation organizations taking a stance on trans rights? And everything Rebecca said is exactly why. But I think it’s also important to point out to people that have a hard time kind of seeing the connection our adversaries, the Christian nationalist legal organizations that have been fighting us for decades in and out of court on all of those strict separation issues, separation of church and state in our public schools and keeping religious displays and speech off of public property, keeping government free from religious indoctrination, all of those strict state church separation goals. The same groups that have been fighting us on that, they’ve moved on to these areas. This is what they are focusing on. They themselves, the Alliance Defending Freedom, the First Liberty Institute, all of these religious right legal organizations, this is where they’ve turned their attention because this is the next step in their conservative Christian takeover of our laws.
And so we can’t turn a blind eye to that and pretend that our issue, which is protecting the secular character of our country and our laws is just confined to all of these really black and white issues that just involve religious expression or religious promotion directly by the government. It’s coming in all of these forms and this is where our adversaries are doing their work. And so we’re there fighting back against them to keep our laws secular and based on rational science and focused autonomy and in places even where there is disagreement like in the area of gender affirming care, that our laws are airing on the side of more freedom, more expansive civil rights and not restricting people’s rights based on the narrow view of Christian nationalists.
Rebecca Markert: And both of our organizations had put out statements connecting these dots the day of the argument or the week of the argument, which was held at the beginning of December, that outlines all of these points too. Again, if you have listened to our podcast previously, you’ve heard us talk about this over and over again as we talk about the intersection of religious liberty and LGBTQ rights. Certainly when we’re looking at Project 2025, which is a largely Christian nationalist driven document and plan, they specifically target the LGBTQ community really looking for traditional American families, traditional gender roles. So it seems very obvious to us, but it’s not always obvious, as Liz said to others sometimes even in our movement. But it is certainly true that our adversaries, when I started working with the Freedom From Religion Foundation 16 years ago, they were focused on displays and legislative prayer. They moved on from that once they won and moved on to abortion, now they’ve won on that issue and they’re moving here. So this is something that we can no longer deny. This is a clear link between our issues and is something that both of our organizations are dedicated to combating as we move forward into 2025.
So Liz, we should probably get back to the case, the heart of the matter. Could you please just elaborate for our listeners and let ’em know how we got here?
Liz Cavell: Okay, so this case, the Skrmetti case comes out of Tennessee. Rebecca alluded to this up top. It’s a challenge to a Tennessee law that was known as Senate Bill one, it prohibits all medical treatments intended to allow, and now I’m quoting a minor to identify with or live as a purported identity inconsistent with the minor sex or to treat "purported discomfort or distress from a discordance between the minor sex and asserted identity." That’s the end of the quote. It’s basically a categorical ban on all treatments for gender dysphoria for minors. And this case was brought by three transgender teenagers in the state, their parents, and one Memphis doctor who trans youth, and they sued the state officials that are in charge of enforcing the ban. So basically the claim in the lawsuit is that the ban on puberty blockers and hormone therapy in particular for trans teens violates the equal protection clause of the 14th Amendment.
And the reason is that the Tennessee law allows the use of those same medical treatments just for other purposes, not gender dysphoria. So for example, puberty blockers can be prescribed and used to treat precocious puberty, which is an early onset of puberty. Hormone therapy can be used and is used for minors for whom puberty is delayed. So to trigger puberty and any of those treatments can and are used for intersex minors, which is actually more common than anyone would have you believe and is usually unquote corrected with these types of treatments, hormone therapies. So the argument is that the law bans use of these same therapies but only for trans teens and therefore violates their right to equal protection under the laws.
So they sued in federal district court. The federal district court granted an injunction, so stop the law from going into effect and agreed with the plaintiffs that the law likely violates the equal protection rights guaranteed by the 14th Amendment.
And therefore while litigation was pending, they would enjoin the law from going into effect. The Sixth Circuit Court of Appeals in a divided ruling reversed the district court and upheld the ban on gender affirming care. So what’s key in the Sixth Circuit opinion is that they applied a standard of review known as rational basis. And basically that means the court is only asking whether or not the law is rationally related to legitimate government interests. And for all the non-lawyers whose eyes are glazing over, all that means is that’s a really permissive standard. So for a state to come forth with a basis for why they have made this law that distinguishes based on sex, they have to give just a legitimate government interest. It doesn’t have to be compelling, it doesn’t have to be a strong interest, it just has to be legitimate and the law has to only be rationally related to serving that interest.
It doesn’t have to be what’s known as narrowly tailored. It just has to be rational. It’s a low standard of review. It’s very permissive. It is hard to get a law struck down on that standard of review because it’s a review that is deferential and very permissive to the state’s action. So using that very low deferential to Tennessee standard of review, the Sixth Circuit overturned the federal district court and upheld the ban. So the federal government joined in on this case because whenever there is a case of great public importance and it’s an appeal going to SCOTUS, they can choose to involve themselves in the appeal. So that happened here and the families in this case along with the federal government, the Biden administration sought Supreme Court review of that Sixth Circuit decision. The justices granted only the Biden administration’s petition for review, which is only significant because the Biden administration did not ask the court to decide whether SB 1 violates the rights of parents to make decisions about and control their children’s medical care. That’s an important potentially constitutional issue that the Supreme Court declined to review. They only took up the question of whether or not the law violates the equal protection clause of the 14th Amendment.
Rebecca Markert: I think it’s always interesting to see the evolution of these cases. The state law itself also changed from the moment that it was introduced. It was the first bill introduced in the state of Tennessee in 2023. And at the time it included not only the ban on gender affirming care, but also a provision that would call it child abuse. For you as a parent to get this care for your child, that provision was dropped at the end. And so only the ban on gender affirming care is the one that was signed into law. And then of course when we go up through the courts, it also like the question then narrowed dropping this parental rights discussion focusing solely on the equal protection claim. So as always, there’s a lot happening behind these cases and if you’re not following along every day, there’s going to be a lot that’s missed.
And in my view, if you’re looking at the backstory behind these cases, that also goes to show what they’re really going after. It’s not something that’s so black and white. And once we get up to the Supreme Court, it seems like we’re only focused on this one very narrow question, but when you’re working for advocacy organizations like ours, we want to get the whole picture because like we talked about earlier, our adversaries have been playing a long game for decades and they have their tentacles in everything. And so the parental rights issue probably also will not go away even though the Supreme Court didn’t take it up and neither will these attempts to insert criminalization of providing this type of care.
Liz Cavell: That’s right. So we’re at the Supreme Court review phase and the focus of the questions before the Supreme Court really narrowed to what standard of review should the lower courts have used to determine whether or not SB one is constitutional and in determining the answer to that question, whether SB 1 draws a distinction based on sex because again, without causing everyone’s eyes to glaze over whether or not a court applies a heightened standard of review, strict scrutiny or that lower more deferential rational basis standard that I just described, it turns on whether or not the law at issue makes a classification based on what the court has called suspect classes. One of those suspect classes the court has held in past cases is sex, another is race. The court has decided previously that when a law draws a distinction based on a suspect class, the court will apply this heightened standard of review and a state has to justify distinguishing between people based on sex under the law with a better reason basically.
Right. It’s a less deferential standard of review. The courts are really going to examine, okay, why did the state have to make this law since it discriminates on the basis of sex, you really need to have a compelling reason to do that state and your law needs to be really narrowly tailored to achieving that really compelling interest. So that is what the Supreme Court is kind of focused on. What standard of review should be used in determining whether or not this law is constitutional? And in order to do that, a lot of the argument focused on whether or not the law even makes a distinction based on sex.
Rebecca Markert: Well, a couple of things. First of all, this seems like it’d be a simple case, Liz, because as you said at the outset, SB 1 prohibits all medical treatments intended to allow a minor to identify with or live as a purported identity inconsistent with the minor’s sex or to treat the purported discomfort or distress from a discordance between the minor’s sex, an asserted identity, sex is listed right there in the statute.
Liz Cavell: Yeah, it’s pretty focused in on the sex of the person seeking the treatment. You’re not wrong. And this of course was the subject of much of the oral argument and we’ll get into how it was being argued and treated by the justices.
Rebecca Markert: Before that, I wanted to just also talk about, so we have rational basis review, which is what you talked about and strict scrutiny, which you also talked about. But then there’s this intermediate scrutiny and if our listeners have been paying attention to the news, this might’ve come up too. Can you just talk a little bit about what intermediate scrutiny is?
Liz Cavell: Yeah, so kind of a compromise in between standard of review exists and that is intermediate scrutiny and that is just like it sounds, it is a heightened level of scrutiny beyond rational basis. So it applies a more stringent analysis on the state’s reason for passing a law, their interest and how well the law relates to that interest. So what was being argued in Skrmetti is they use the language heightened scrutiny throughout oral arguments, but classifications based on sex under the law have usually been reviewed using intermediate scrutiny by the court traditionally. And so, I think the United States and the families here were arguing that the court at least send the case back down to be reviewed with intermediate scrutiny instead of just the rational basis scrutiny that was used in the court below. And what the court would be asking if they had done the review of the law under intermediate scrutiny is whether or not the law furthers an important government interest and if the law does that by means that are substantially related to that government interest.
So it’s a less deferential to the state standard and it’s a more searching analysis by the court of all of these things that came up at oral arguments and that are at issue in this case, which is basically how risky or harmful is the treatments being categorically banned to minors and how do those risks weigh against the risks of not allowing treatment for gender dysphoria for youth, which are well-documented and are those interests substantial on the state’s part? And if they are, do these laws try to achieve those interests in a narrow way that doesn’t unduly infringe on the equal protection rights of people based on sex? Because if you get to the point where the court is going to hold that this case needs intermediate scrutiny, then you’ve already answered the question like Rebecca said, should be a no-brainer, which is that this law classifies people based on sex and based on oral arguments, there may or may not be a majority of justices who can even get that far in seeing that this law classifies people based on sex.
So oral arguments like Rebecca said, were early December, I think it was December 4th, they went for a long time, nearly two and a half hours long over what time was budgeted. And again, because the United States chose to be involved in this appeal, the Solicitor General Elizabeth Prelogar had all the arguing time and shared that time with the attorney who was arguing on behalf of the teens and their families. That’s an ACLU attorney named Chase Strangio, who was also incidentally the first openly transgender lawyer to argue before the Supreme Court, which was very cool in an uncool otherwise uncool oral argument.
Rebecca Markert: Very historical moment.
Liz Cavell: It was. And honestly listening to oral arguments and hearing the chief justice say Mr. Strangio, just like it was a moment for sure. So it was pretty apparent from oral arguments that all of the six conservative justices are very skeptical of the Solicitor General’s position. They seem inclined to hold up the ban spoiler alert. And the Solicitor General Prelogar was pretty much immediately and pretty incessantly questioned by the conservative justices. She took a lot of interruptions and questions from Roberts, Thomas and Alito especially. They really seized on and grilled her about their view of the state of the medical evidence. I’m quoting from their questioning about trans care. So this is where it was just Rebecca, the activist talking points of anti-trans online world. It was like, well, what about these new studies coming out in developments in Sweden, Finland, and the UK? And turns out they’re all rethinking what the harms could be of gender affirming care to minors.
And I mean without getting into debunking some of these studies or reports, the Solicitor General pointed out, which I think is important, that regardless of any evolving data that has been coming out about gender affirming care, no European countries have changed their laws based on any of these reports. None of these countries that justices pointed to as having changing data on trans care, none of these countries have an outright ban on gender affirming care for minors the way Tennessee does. So it’s a very online thing. It’s the typical Justice Alito comes out strong with the first question and it’s like something from the internet.
Rebecca Markert: Yes
Liz Cavell: That’s what it felt like.
Rebecca Markert: Yes, he was just focused on Europe. Very much, let’s look at the evidence that is coming out of these studies, out of these really, really socially otherwise socially progressive countries and suddenly they’re very interested in what those countries are doing. But as you mentioned, Prelogar just shot that down immediately with the idea that there’s no categorical ban in those countries.
Liz Cavell: And again, it’s so frustrating to watch these oral arguments because as you or listened to, because as we just set up for you, this is a very sort of technical and narrowly focused question for review. And right out of the gate, the first thing that these justices are chomping at the bit to put out there has nothing to do with the question that they really should be focused on, which is what the Solicitor General kept trying to stress that they should focus on, which is the very narrow question of whether or not this law draws a distinction based on sex and therefore it should have been subject to a more stringent standard of review than the one used by the Sixth Circuit. What does the changing medical standards in Finland have to do with that question? You ask nothing. It’s just what is top of mind for these justices, which is it gets more to the question of how compelling or substantial is the interest of the state of Tennessee, but that’s not really where the step one narrow focus of the analysis should be. But of course, these justices are not that focused. They’re more just interested in their own view of the controversy around trans care and especially for minors.
So there was that whole line of questioning and that really came out first from the most eager of the conservative justices, which is the state of the medical evidence is this changing thing and what about that? And then you had sort of so typical of Justice Kavanaugh, which is sort of the softer but equally empty line of questioning, which was like, gee whiz, if the medical standards are so uncertain and evolving, we just leave this to the states and the democratic process and not even review these things with any exacting standard. Just kind of give the states that deference. And I think Prelogar did a good job of pushing back and just pointing out, and again, trying to redirect the justice’s attention to the question at hand, which is like, yes, that’s true of most things, but where a state has chosen to pass a law that treats people differently based on their sex or their other protected characteristics, this court has a tradition of stepping in and reviewing, at least with some scrutiny, whether or not states are violating the rights of these classes that otherwise can’t get protection in the democratic process because they are a extremely vulnerable and marginalized minority.
Rebecca Markert: I was smirking and trying not to bust out laughing while you were talking because when I was listening to Kavanaugh, you were very diplomatic in the way that you described it, by the way, very professional because I was just like, he was just, well, there’s really forceful arguments on this side and there’s really forceful arguments on that side. Could people on both sides, I have no idea.
Liz Cavell: Gee whiz, this is tough.
Rebecca Markert: This is tough. And then yes, maybe this is just better for the states to decide. And he also went to law school like you and I did. This is simple. This is a classification that is facially based on right protected characteristic.
Liz Cavell: He almost acts like it’s a man on the street interview, right? Where it’s like transgender-ness, thumbs up, are you a thumbs down on that? It’s like, no, there’s actually a legal question here, a really fine legal question that has to do with protecting civil rights and this massive line of jurisprudence that you as one of the nine highest jurists in the land are tasked with applying that analysis to any given situation to protect the civil rights of the citizens of this country. So it’s not just like someone came up to you and is like, how do you feel about this whole trans thing? I don’t know. It’s tough. It’s a tough one. It’s a tough one. People of good conscience on both sides of the argument. It’s such this faux, just like man of the people act and it’s come up in other oral arguments with Kavanaugh just trying to seem the reasonable both sides.
And everybody here knows or should know that there’s actually a legal question they’ve taken up, they’ve agreed to take up a legal question and nobody’s focused on it in their questioning. So back to the actual issue at hand, which is what the Solicitor General kept sort of circling her argument back to, which was that this law draws distinctions based on sex and it should therefore be subject to intermediate scrutiny, is just what Rebecca highlighted at the very beginning, which is the whole text of the law makes distinctions literally based on sex. The entire law references the sex of the patient, the birth sex of the patient as what’s determinative of what treatments are prohibited. But as it was sort of being framed by the Solicitor General is that SB 1 prohibits treatments only when the drugs are being used in a manner that’s inconsistent with a young person’s assigned birth sex.
So therefore it draws lines based on sex because if you want a certain treatment and you’re using the drugs in a manner that is consistent with your birth sex, you can use these treatments. They’re not being banned for all purposes. So it’s simple. Yes, it’s tied up in the medical use, but the medical use being prohibited is inextricably linked to the sex of the person that is seeking the treatment, therefore it should be subject to heightened scrutiny. That’s it. So on the other side, you had the Tennessee Solicitor General Matthew Rice, who is arguing on behalf of the state of Tennessee, this same logic, Rebecca, that we heard way back in the Masterpiece Cake Shop case that was equally infuriating, which is no, no, it’s not a classification based on sex because the sex of the teen that needs the treatment is not what matters, it’s what they want to use the treatment for.
So gender dysphoria, you can’t use it whether you’re a boy or a girl that has gender dysphoria, you’re equally discriminated against, but if you want to use it for precocious puberty, that’s okay. And states do this all the time. You can’t have off-label uses of things. You can’t use morphine for fun, but you can use it for X, Y, and Z. And this is just like that. It’s not a sex-based classification. This same twisted logic was what was injected into the Masterpiece Cake Shop case, which involved the baker that did not sell wedding cakes to same sex couples. And his logic was, Hey, I don’t discriminate based on sexual orientation. I sell all kinds of things to gay customers like I sell cupcakes and bar mitzvah cakes and anything you want, but I don’t sell wedding cakes to be used for gay weddings. So even if the purchaser was a straight person, like a straight mom being like, I would like to buy this cake for my son’s gay wedding, he would be like, oh no, I’m sorry.
And therefore the discrimination wasn’t based on the sex of the customer, it was just based on the use of the cake. And that logic holds a lot of sway over the minds of some of our best and brightest jurist. You’d be surprised, even though it is obviously both things can be true. It can be a sex-based classification, even if it involves or it affects the use of the treatment or the medication. It still can be true that it’s a sex-based classification because you can’t determine whether or not someone’s violating the law without knowing their sex. It’s not a sex blind law. So you had Tennessee arguing, listen, the classification under the law is not based on sex, it’s just based on the use for which the treatment is being prescribed or given. And then the pushback here came from Justices Sotomayor and Kagan and Jackson who got really frustrated and skeptical with this line of logic.
So Justice Kagan called this a dodge basically to argue that only medical purpose is being classified when the whole notion of gender dysphoria and gender affirming care. And as Rebecca pointed out, the whole spirit and letter of the law itself is in Justice Kagan’s words "utterly and entirely about sex." So those are her words. And then Sotomayor pointed out that whether or not a minor can access treatment turns on what their sex is. And it got kind of spicy between the justices and the Tennessee Solicitor General. And Justice Sotomayor said something to the effect of assume "a gender neutral presenting teen comes into a doctor’s office and says, I need treatment because I do not want to grow breasts." It’s like there is no way to know whether or not you are legally allowed to prescribe that treatment without saying what is your birth sex?
And the Solicitor General of Tennessee’s response to that would be something along the lines of, right, but whether the birth sex was like boy or girl, they could still be denied just based on whether they were asking for breasts or for not breasts. It’s not about the sex of them, it’s about what they’re seeking to do. Plus, I mean, these are my words plus their sex. So because it requires another piece of information plus their sex somehow it’s not a sex-based classification, which Sotomayor didn’t have much patience for. And then Justice Jackson, I thought really compellingly pressed Rice from Tennessee to distinguish the statute in Loving versus Virginia, the statute that banned interracial marriage from the statute in this case in terms of how they classify, because obviously the statute at issue in loving banned interracial marriages for all races. It restricted whites for marrying blacks, it restricted blacks for marrying whites. And in that way, according to this twisted logic, it was race neutral. My air quotes are going hard, but obviously was held to be a race-based classification back then and struck down for not meeting the heightened standard of judicial review that it had to undergo. So Justice Jackson was pressing and pressing and pressing on this, and I don’t think got a really good answer, just sort of the same kind of circular logic that I just gave based on the last question.
Rebecca Markert: Because they don’t want to, what the obvious answer is because that doesn’t propel their argument at all. The gymnastics that are going on in this case and many of the other cases that we’ve seen about this is insane. They know it’s analogous, right? It’s totally analogous.
Liz Cavell: So what’s going on under the surface and also out in the open is sort of this alternative notion that it’s not a sex-based classification, it’s not the same, but also even if it is, it’s not based on sex. And so there was this question and discussion of whether or not heightened scrutiny is warranted just based on transgender discrimination. So whether or not the transgender community should be considered a quasi suspect class, which is a legal term of art that has been used in some past Supreme Court cases to confer this heightened level of scrutiny by the court. When you have a class of individuals that have been subject to discrimination in the past and has these other factors, there’s been a history of discrimination against them under the law. It’s been difficult for them to find recourse through the democratic process. So there is some discussion about whether or not transgender identity warrants the court treating it as a quasi suspect class.
The only justice that I recall really seizing on this in questioning was Amy Coney Barrett who questioned both the solicitor General and Chase Strangio about whether or not there is a history of her word was "dejure," which bothered me so much. It sounds like du jour, but it’s D-E-J-U-R-E, which is just Latin for in the law. Has there been a history of discrimination. Institutional enacted into the law discrimination against trans. Prelogar have that at the top of her head. And I think she talked mostly about cultural discrimination, but Strangio pointed out that there actually have been laws against cross-dressing on the books for ever and ever and decades. There have been actual laws of military justice that have prevented trans people from serving in the military or serving openly in the military. And so there is certainly a history of discrimination in the law against trans people. And obviously we know that they are a massively small minority who have a difficult time finding recourse, vindicating their rights through the democratic process.
Rebecca Markert: And this was frustrating to me as well because Barrett knows this.
Liz Cavell: Yes
Rebecca Markert: She knows this history. She knows that they’re a marginalized community. She knows that there’s a history of discrimination, legal and not.
Liz Cavell: Yeah, I know the other thing she pointed out, she basically made both parties arguing confirm that the court is not reviewing the parental rights question. Isn’t that right? So isn’t it right, that question can still be brought and litigated. And the subtext to me was when I vote to uphold this ban on this basis, it’s okay because you still have some avenues to pursue.
Rebecca Markert: See my concurring opinion that’s forthcoming.
Liz Cavell: Exactly. One thing I just wanted to point out because it was a really powerful moment, was one of the many times that Justice Sotomayor was questioning the Solicitor general. And I can’t remember if she was responding to something he said or something that one of the other justices said about. "Let’s let this"– oh, it was the Solicitor General saying basically Justice Sotomayor made it a point to question the solicitor General of Tennessee on doesn’t the logic and the argument that you’re putting forth today equally apply to a law just like this, but that bans these treatments for adults, which is basically true, which he basically at some point had to admit is yes, that’s true. His argument would be this is not a sex-based classification even if it applied to adults, and therefore it’s rationally related to a legitimate interest and it’s fine. States could do that. And he basically said it’s not for the courts. Basically unwise laws should be dealt with through the Democratic process. And Justice Sotomayor very pointedly said, well, it’s kind of hard when you’re 1% of the population to see how the democratic process is going to protect you. It was really powerful.
Rebecca Markert: So talk about Justice Thomas because also talked about this age difference. So this is his question right out of the gate is "much of the latter part of your opening statement suggests that will seem to suggest that there’s an outright ban on this treatment, but that’s not the case. It’s really for minors. So why isn’t this simply a case of age classification when it comes to these treatments as opposed to a ban as you suggested?"
Liz Cavell: Right? And her answer is, well, that’s true that it’s a classification based on age, but it’s also a classification based on sex. So yes, it’s not a ban on care for adults. However, she’s pointing out what’s later picked up by Sotomayor, which is, although the argument being made by Tennessee would equally apply to a ban on care for adults. So "what are you talking about, Justice Thomas?" Is basically the subtext.
Rebecca Markert: Right, right. I also am interested in hearing your thoughts on what a lot of people were just saying or is playing off in the background. And something that was incredibly notable was that Justice Gorsuch was completely silent during the entirety of this oral argument for two and a half hours. He said nothing, but he was the one who wrote the six three opinion in Bostock v. Clayton County.
Liz Cavell: That’s such a good point
Rebecca Markert: Which talked about Title VII and sex discrimination there. And there was significant talk during the oral argument about the Bostock decision and questioning whether the same reasoning applies and the distinction between that case and this case in Bostock, they were talking about Title VII, it’s a statutory case. It’s a case based on a statute not bringing up equal protection constitutional claims. So they were seeing a distinction there, but it is really, really difficult to know that that case exists where they were saying, "Hey, if the result were different based on your sex, that’s discrimination."
Liz Cavell: It is such an interesting kind of thread in this case, which is the Bostock case was a case that involved statutory interpretation. So it is not a constitutional analysis case and that is the distinction that’s always been pointed to by the justices, I think. And sort of in the commentary, which is that, okay, this is Gorsuch ruling how this section of this statute should be interpreted, but not necessarily having any application to constitutional analysis where we talk about whether or not a law distinguishes on the basis of sex as a constitutional matter. And one of the questions, it was one of the first questions that Justice Alito whipped out for and he did it in his, this is a gotcha moment tone, to the Solicitor General Prelogar was isn’t your primary argument that based on a Bostock reasoning, is that not true? And it was supposed to be this, I think from him, sort of a gotcha moment of, well, Bostock doesn’t apply here, so you lose kind of thing.
And of course the Solicitor General didn’t fall for that and was like, that’s actually incorrect. Our argument is that on its face, this statute distinguishes based on sex. It’s not like if it weren’t for Bostock, we would have no argument here. I mean, it is making a similar argument to the rationale that was laid out by Gorsuch in Bostock, but it doesn’t rely on Bostock as a case. So I don’t really understand. Again, it’s one of these things where it’s like the justices pretend to misunderstand what’s being argued. Here’s what he said. "You say that a girl who wants to live like a boy cannot be administered testosterone, but a boy who wants to live like a boy can be administered testosterone. So that’s one of your major arguments. And I take that to be a Bostock like argument. So here’s my question, why should we look at Bostock? Didn’t it involve statutory interpretation language?"
It’s like he wanted to make that gotcha question happen and it just didn’t happen. And then he just sort of wedged it in any way and said, this is not a question of statutory interpretation, so why should we even look to your Bostock like reasoning here? And it was just so disingenuous and divorced from the actual analysis and everybody knows it. And it gets to the point where sometimes I’m like, is he stupid? Obviously the Solicitor General is saying, yeah, I know this is not a question of statutory interpretation, but there’s not a meaningful difference between the court’s approach in Bostock and this analysis under the equal protection clause. So that’s fine. It’s analogous. I’m not telling you Bostock is the controlling case and everybody knows that it was just painful to listen to. So there was nothing super notable in Chase Strangio’s presentation basically was pressed on the same issues by the conservative justices as the Solicitor General we mentioned. Really cool seeing a trans man argue at the Supreme Court and have those justices as they’re considering taking away rights from the trans community, also addressing this trans man as Mr. Strangio before the court. It was just surreal. But the one thing I mentioned, Chase Strangio did seize on that was the fact that there was a history of discrimination enshrined in the law against trans people and I think that was actually a really important point.
Rebecca Markert: And probably better made by him than the Solicitor General.
Liz Cavell: Yeah, I think that’s right. I thought it was really cool that Sotomayor referenced after she made that 1% of the population will have a hard time getting the democratic process to protect them. She pointed out it didn’t protect people of color for decades and millennia in this country, and it didn’t protect women for a long time. And just boiling this down to its most basic issue, which is this is why we have the equal protection clause to protect people under the law that can’t get protection through the democratic process. And that’s what you see happening before your eyes.
Rebecca Markert: And this is what is also frustrating about this argument too, is that you do have these justices like Alito and Thomas up there pretending that doesn’t exist, that they’ve never learned that before.
Liz Cavell: Right
Rebecca Markert: We’re actually here about protecting a vulnerable and marginalized portion of the population, and that we have in fact done that for other communities of people in the past, in the recent past. So we’ve kind of given a rundown of how the oral argument went. We pretty much have alluded to how we think the decision is going to come down. I don’t know if we want to throw numbers on it? 6-3?
Liz Cavell: Mean, we’re at a point in history where so many of these cultural theocracy type cases, it’s just math. It’s going to be 6-3
Rebecca Markert: 6-3, 6-3.
Liz Cavell: And there’s going to be some breakout. You might see some concurrences. It was interesting that Gorsuch was silent, but it’s not like some ray of hope or anything like that. I think it’s just a question of who writes to concur and who tries to soften what’s being done.
Rebecca Markert: I mean, I feel his silence didn’t really mean a whole lot other than he maybe thought about being a hypocrite and didn’t want to seem like that. But I think if I were to place him on any part of the spectrum here on how this case is going to fall, I think he might be trying to figure out in his head how this medical purpose classification argument can go.
To kind of get him away from what he argued in Bostock. So we kind of know how this is going to go. The decision is forthcoming, might be in June, might be earlier, since this was one of the first big cases. It’s a culture wars case, so it might not be until the end of the term. So look forward to that decision towards June or the end of June. But of course it could come at any time.
But I also just kind of wanted to highlight for our listeners just some of our thoughts on the argument itself just as lawyers, because what struck me the most after this argument, I think because we kind of knew what was coming from the conservative justices and what the arguments were going to be, but something that really made a strong impression on me was just how amazing of an oral advocate, Solicitor General Prelogar is.
Liz Cavell: She is.
Rebecca Markert: She is phenomenal. She doesn’t take any, when she’s arguing, she has an immediate answer for every single question that the justices posed to her. And most astonishingly, something that I want to have as a skill that I don’t have, I have editing here, is that she does not have any verbal ticks. There’s no uhs or ums or anything like that. She’s so very polished and just, I don’t know. I’m sure there probably are people who talk about this, but I don’t hear it often enough. She is a phenomenal oral advocate. Her arguments are just amazing to listen to. I’m running out of adjectives.
Liz Cavell: I know. It really is. If you listen to these arguments, it can be so frustrating. And some justices more than others, the level at which some of the even justices are functioning and questioning just doesn’t even compare. She’s just arguing the straight legal analysis. But in the most, like you said, clear and forthright way pacing, her responses to questions are always just completely on point and never are halting or vague or obfuscating. She’s extremely direct. She’s always prepared. And it’s almost just like she’s on a different planet from the justices she’s faced with these questions from Justice Alito, the one that we were reading from the transcript earlier. And it’s just like, how are you so composed when there’s just an angry, crazy person screaming, just incomprehensible online trollery at you?
Rebecca Markert: And just as a lawyer who also is always looking to develop professionally in so many different ways, and oral advocacy is one of the ways that I think we’d like to develop our skills even further. I just want to know how she does this. How do you prepare for oral arguments? How do you get rid of all of those ticks? Are you just at home staring mirror? I know talking in front of a mirror and just practicing and practicing and practicing, and then if that’s what you do, how do you do the rest of your job where you have to prepare the briefs and everything like that? It was astonishing to me, and I’ve noted it before, but after this argument in particular, it was a conversation that I had with many people in my office and I was just in awe.
Liz Cavell: Same. And this may have been maybe not, but maybe her last argument as the Solicitor General, because obviously she’ll be replaced with the incoming administration.
Rebecca Markert: Yeah, well, maybe she’ll want to be a guest on our show, and then I can ask her all of these questions.
Liz Cavell: How amazing would that be? Yeah, that’s a great impression. Honestly, throughout all the cases she’s argued during this past administration, she’s been such an impressive oral advocate, just goals.
Rebecca Markert: And the other thing that I just wanted to talk about from this case before we end is just the human face of these cases and the impact that it’s going to have on real people who are going to be affected by these gender affirming care bans.
At the end of the oral argument, which she’s brought back up for rebuttal, she states her points, she ends her rebuttal with a story about Ryan Roe, one of the teenagers whose law, whose rights are going to be affected by this law. And she just wanted to point out the real world consequences of laws like these. And she kind of hearkens back to Sonia Sotomayor talking about what gender dysphoria actually does to people, and the harms that banning this type of care could inflict on people who are experiencing this. And Sotomayor earlier in the argument talked about, aside from this severe physical distress, there’s also attempt at suicide and things like that.
So I thought it was really, really powerful and impactful for Prelogar to end the argument. The final word of the argument is talking about Ryan’s gender dysphoria that was so severe that he was vomiting almost on a daily basis before going to school, that his voice was causing him so much distress that he wanted to go mute and that this care, once he was prescribed this care, this is what saved him. And I thought that this story was so powerful and something that the justices needed to hear as the very last thing before the case was closed. And I think this is also just an example of what our jobs really have become in this era of us being in the dissent where our entire job is really bringing out these human stories, letting people know the real life consequences of what the courts are doing. Because everything before this was all this academic exercise and just teasing out these words, trying to find distinctions, but in the end, this is the actual impact of the decision that the court is going to be making next summer. And I thought it was amazing to include this story just in the analogs of history, because I think especially us as lawyers that can really, really get lost when you’re just looking at words on a page and suddenly these people just become case captions.
Liz Cavell: Yeah, amen. That’s a great place to end it. We’ll probably cover this again when a decision comes down. So stay tuned for that. And until then, that’s it for the episode today.
Rebecca Markert: I’m Rebecca Markert.
Liz Cavell: And I’m Liz Cavell. And if you haven’t already, please go follow us on our socials. We’re on Facebook, we’re on Instagram, we’re on X, I think we’re on Bluesky now. So please also remember to let us know how you’re liking our show by leaving us a review. You can find us at we-dissent.org.
Also next month, Rebecca and I will be recording our annual mailbag episode. So this is a call for all of you listeners to submit your questions to us. You can submit them through our website, we-dissent.org. You can message us on our socials, send questions our way, legal, non-legal, existential, all the questions, and we will try to answer them in our next episode. Thank you all for listening.
Rebecca Markert: We Dissent is a joint production of the Freedom From Religion Foundation, and Americans United for Separation of Church and State. It is hosted by attorneys Liz Cavell and me, Rebecca Markert. Other production support comes from Greta Martens, audio Engineering provided by Audio for the Arts based in Madison, Wisconsin. Thanks for listening.
