On Wednesday, the Supreme Court heard a major case on the rights of transgender children that could help uphold or dismantle dozens of laws across the country.Adam Liptak, who covers the Supreme Court for The Times, explains how the questioning played out and how the justices are likely to rule. Guest: Adam Liptak, who covers the Supreme Court and writes Sidebar, a column on legal developments, for The New York Times.Background reading: The justices heard arguments on Wednesday over whether Tennessee can ban some medical treatments for transgender youth.For families of transgender children, Tennessee’s ban forces hard choices.For more information on today’s episode, visit nytimes.com/thedaily. Transcripts of each episode will be made available by the next workday. Unlock full access to New York Times podcasts and explore everything from politics to pop culture. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify.
Chapter 1: What is the Supreme Court case about transgender care for minors?
From The New York Times, I'm Michael Barbaro. This is The Daily. Today, in history-making arguments on Wednesday, the Supreme Court heard a major case on the rights of transgender children that could help uphold or dismantle dozens of laws across the country. My colleague Adam Liptak listened in and explains how it played out and how the justices are likely to rule. It's Thursday, December 5th.
Adam. Welcome back to the show.
It's good to be here.
Adam, this case that we're going to talk about today has that feeling of bigness that comes when the Supreme Court takes up a defining social issue of our time at the precise moment when that issue is completely front and center.
That's right. This is the biggest case of the term and would have been regardless. But it hits the court just as we're coming off a presidential campaign in which trans rights played a central role. So the Supreme Court confronts an important civil rights issue at just the moment in time when it's at the peak of public scrutiny.
Right. And not just the presidential campaign, but school boards across the country and sports leagues across the country. So tell us about this case and, Adam, how it fits into all of that.
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Chapter 2: What are the implications of the Tennessee law on transgender minors?
Well, this case, Michael, presents probably the most fraught question of all, gender transition care for people under 18. And the case concerns a Tennessee law that bars providing some kinds of medical care to transgender minors, to people under 18 years of age, in particular puberty blockers, hormone therapy, and surgery. Twenty-three other states have similar laws.
And the Tennessee law was challenged by three families and a doctor. The Biden administration intervened on the side of the families. And they say that the law violates the Constitution's Equal Protection Clause.
And can you just explain that argument started by these families and, as you said, picked up by the Biden administration about why this is an equal protection 14th Amendment case?
So the Equal Protection Clause says that some kinds of discrimination are— are presumptively unlawful. And the classic examples are, of course, race or gender. And what the families and the Biden administration say here is that this law is an example of sex discrimination. It says that certain forms of care are available to everybody except minors who are seeking gender transition care.
Chapter 3: How does the Equal Protection Clause apply in this case?
And you have to take account of the sex of the child involved to know whether they're entitled to get that kind of treatment or not. So think about it this way, Michael. If you have a child assigned male at birth experiencing precocious puberty, meaning he's going through puberty earlier than he wants to. He can get puberty-blocking drugs.
If a transgender boy doesn't want to experience puberty because it doesn't align with his gender identity, he's not entitled to the very same treatment. So the challengers would say that example tells you that this Tennessee law is a form of sex discrimination.
So under the Tennessee law, the same medicines and procedures are available or not available depending on whether you are a transgender boy or girl or not. And therefore, the claim being made is it's discriminating against trans boys and trans girls. That's the claim under the 14th Amendment.
That's the challenger's argument. The state will come back and say, no, we're not drawing distinctions based on transgender status. We're drawing distinctions based on the medical procedure. These are different medical procedures, they would say. And the reason why this matters
is that the Supreme Court has said that if it is sex discrimination, the law is subject to a very demanding form of judicial scrutiny. Lawyers call it heightened scrutiny. And what it means is that a state has to prove that it has a good reason for the law and that the restriction advances that reason. And that's a difficult hurdle to overcome. Got it.
And just to be very clear, because I think this might escape people's understanding, the government's legal argument here is not about whether this Tennessee law, and I guess laws like it, violate the rights of trans people as trans people, but instead about whether this law is a form of sex discrimination, which is different.
Right. And that's kind of a consequence of necessary litigation strategy, right? Almost surely, the challengers would prefer to make the more straightforward argument that this is discrimination based on gender identity, this is discrimination based on transgender status, and not have this kind of intermediate workaround about sex discrimination.
But sex discrimination, the court has ruled, is subject to heightened scrutiny. And transgender status, they have never said is subject to heightened scrutiny, and almost any reason will do for a state to discriminate against transgender people if it's not sex discrimination. So while the transgender discrimination idea is in the case as a backup argument for
Most of the chips of the challengers are put on the sex discrimination argument because that's the one where we know heightened scrutiny kicks in if the court agrees it's sex discrimination.
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Chapter 4: What arguments did the Solicitor General present?
Yeah, it's a wide-ranging argument, and all kinds of things pop up.
I want to ask in particular about one thing. If you prevail here on the standard of review, what would that mean for women's and girls' sports in particular?
Justice Kavanaugh, who coaches a girls' basketball team. was very interested in the impact of a potential ruling on transgender participation in sports.
Would transgender athletes have a constitutional right, as you see it, to play in women's and girls' sports, basketball, swimming, volleyball, track, etc.?
And it wasn't just the conservative justices who seemed to want to expand the scope of their questioning beyond that narrow legal question.
Some children suffer incredibly with gender dysphoria, don't they?
Yes, it's a very serious medical condition.
Some attempt suicide.
Yes, the rates of suicide are striking.
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Chapter 5: What was Justice Kavanaugh's stance during the questioning?
And then there was a striking moment when Justice Ketanji Brown Jackson says, wait a second, we have a job here. It's not to decide the risks or benefits of the policies that justify the law. It's our job under the Constitution to decide, at least in the first instance, whether the law triggers the Equal Protection Clause.
And the question for equal protection purposes is, if you are right that there is a sex baseline being drawn, then... to the extent the plaintiffs are implicated by that line, don't we have to apply heightened scrutiny in evaluating their claims?
Yes, that's exactly right.
She said that's the job of the Supreme Court to police the 14th Amendment and at least reach the initial question of is this sex discrimination? And does that mean that a heightened form of judicial review kicks in?
Right. She's sort of like, people, focus. We have a job here.
It was a striking moment. Mr. Strangio?
Mr. Chief Justice, and may it please the court.
But I think in a lot of ways, one of the most memorable moments in the arguments came when another lawyer challenging the law stood up to argue.
But SB1 has taken away the only treatment that relieved years of suffering for each of the adolescent plaintiffs.
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Chapter 6: What does the term 'immutable' mean in the context of transgender identity?
Chapter 7: How may this ruling affect transgender participation in sports?
Chase Strangio, a lawyer with the ACLU representing the families and the doctor challenging the law, is the first transgender lawyer ever to argue before the Supreme Court, or at least the first openly transgender lawyer.
Let me ask a question about another issue that came up during Justice Kagan's questioning.
And he pretty quickly gets into an exchange with Justice Alito, who's one of the court's most conservative members, that's really quite remarkable. Is transgender status immutable? Alito asks him whether transgender identity is immutable.
I think that the record shows that the discordance between a person's birth sex and gender identity has a strong biological basis and would satisfy an immutability test.
And Alito is essentially asking a transgender person, a lawyer, arguing before the court, is your identity an essential element of who you are? And it's not just a striking moment. It also has some legal significance. Whether or not a characteristic is immutable plays into deciding whether that characteristic can make you into a protected class.
So this was not only personal, but also an important point for his side to try to win.
If Tennessee can have an end run around heightened scrutiny by asserting at the outset that biology justifies the sex-based differential in the law, that would undermine decades of this court's precedent. Thank you.
Thank you, counsel. So, Adam, when the two lawyers arguing against this Tennessee law are done and about to hand it over to the folks defending this law, what are you thinking?
So, Michael, by the time The Challengers finished, and it was kind of an unwieldy romp through a lot of different areas, not tightly focused on the legal question before the justices, I kind of had the sense that The Challengers were facing an uphill fight in what they had to prove. and persuading the more conservative majority that this law amounts to sex discrimination.
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