High Court Weighs Tennessee’s Transgender Law | 12.8.24

Summary

Morning Wire: High Court Weighs Tennessee’s Transgender Law | 12.8.24

Hosted by John Bickley and Georgia Howe of The Daily Wire

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Introduction

In the December 8, 2024 episode of Morning Wire, hosts John Bickley and Georgia Howe delve into the Supreme Court's recent oral arguments concerning a pivotal case: US v. Scarmetti. This case scrutinizes Tennessee's controversial law banning puberty blockers and hormone therapy for transgender minors. With trust in mainstream media waning, Morning Wire aims to provide clear, fact-based analysis on this high-stakes legal battle.

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Case Background and Path to the Supreme Court

[00:03] John Bickley introduces the case, highlighting its significance as a "marquee case" of the term. The case pits a Memphis physician and the Biden administration against Tennessee’s law designed to "protect children" by restricting gender-affirming treatments for minors.

[01:00] Georgia Howe mentions the influence of Matt Walsh’s investigative work at Vanderbilt, which was instrumental in prompting the Tennessee law at the center of the case.

[01:17] Sarah Partial Perry, Senior Legal Fellow at the Heritage Foundation, explains the journey of the case:

"Three parents of transgender minors brought this challenge against SB1, which was enacted with bipartisan support in Tennessee. They argued it interferes with their rights to pursue controversial medical care for their children and constitutes sex discrimination under the Equal Protection Clause."

Both the federal trial court and the 6th Circuit Court of Appeals upheld Tennessee's law, emphasizing the state's interest in protecting minors from "unproven, scientifically sketchy procedures."

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Legal Arguments: Sex Discrimination vs. State Protection

[02:50] Sarah Partial Perry breaks down the core legal arguments:

• Federal Position: Elizabeth Prelogar, the U.S. Solicitor General, contends the law discriminates based on sex by distinguishing between birth-assigned genders regarding access to testosterone treatments.

• Tennessee’s Defense: Argues the law targets treatments based solely on their use and the age of the patients, not on sex, thus avoiding sex discrimination under the Equal Protection Clause.

The discussion clarifies that the law specifically bans the use of puberty blockers and hormone therapy aimed at altering a minor’s gender, while still permitting these treatments for endocrine disorders like precocious puberty.

[04:48] Georgia Howe prompts an explanation of "off-label" use, to which Perry responds:

"The FDA has never approved puberty blockers for gender dysphoria—only for endocrine disorders. Tennessee aims to prevent minors from undergoing these 'off-label' treatments that carry potential lifelong consequences."

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Supreme Court’s Leanings and Justices’ Perspectives

[05:24] Perry anticipates the Court's stance, noting a probable conservative majority favoring Tennessee:

"Justice Alito was particularly critical, stating that the Solicitor General is 'relegated to a footnote.' Justice Kavanaugh expressed caution about constitutionalizing new areas of medicine, while Justice Barrett and the Chief Justice emphasized legislative over judicial solutions."

The silence of Justice Gorsuch during oral arguments is highlighted as potentially pivotal, given his previous role in Bostock v. Clayton County—a case expanding protections against employment discrimination based on gender identity.

[07:48] The conversation explores whether this ruling might undo or limit aspects of Bostock, with Perry suggesting:

"The ruling may restrain the reach of Bostock, ensuring that equal protection claims aren’t conflated with statutory civil rights discrimination claims."

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Implications for Future Legislation and Judiciary

[10:38] The discussion shifts to the broader impact:

"This ruling is expected by end of June 2025 and will likely influence how similar laws in other states are approached, reinforcing states' rights to regulate medical practices concerning minors."

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Legal Challenges and Financial Incentives in Gender Medicine

[11:13] Georgia Howe raises concerns about financial motivations behind gender-affirming treatments for minors, referencing Matt Walsh’s investigations.

[12:10] Harmeet Dhillon, a litigator, elaborates on ongoing lawsuits against medical providers like Kaiser Permanente for performing gender-affirming procedures on minors without informed consent:

"We've filed the first lawsuits in the country, but short statutes of limitations hinder timely legal action. The real change lies in legislative bans and medical board interventions against malpractice."

Her passionate account underscores the perceived urgency and ethical dilemmas surrounding these medical practices.

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Conclusion: The Road Ahead

[13:39] Perry asserts the ruling’s significance:

"This decision will be a precedent for 26 other states observing Tennessee's case closely. It underscores the Supreme Court's acknowledgment of states' authority in protecting minor children, a principle upheld for over a century."

[14:26] Hosts conclude by reiterating the case's importance and its potential to shape future legal and medical landscapes concerning transgender youth.

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Notable Quotes

• John Bickley [00:03]: "The Supreme Court heard oral arguments Wednesday on what's being called the marquee case of this term in US v. Scarmetti 3 trans identifying teens."

• Sarah Partial Perry [04:48]: "The FDA has never approved puberty blockers for gender dysphoria... The state of Tennessee does not want minor children assuming the risk of off-label use and making determinations that could have lifetime consequences."

• Harmeet Dhillon [12:10]: "It's shocking and outrageous... some guidance counselors send them for one session with some rubber stamper who then goes and gets the girl's breast cut off."

• Sarah Partial Perry [14:26]: "I do believe for the 26 other states... the Supreme Court will come down on the side of states' rights and their ability to protect minor children."

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Morning Wire continues to monitor this landmark case, providing listeners with informed and unbiased coverage on issues that matter.

Transcript

[John Bickley]

The Supreme Court heard oral arguments Wednesday on what's being called the marquee case of this term in US v. Scarmetti 3 trans identifying teens. A Memphis physician and the Biden administration challenged a Tennessee law that aims to protect children by banning puberty blockers and hormone therapy for the purpose of changing a child's gender.

[Georgia Howe]

The court's decision isn't expected until June, but all of the conservative justices did seem willing to uphold Tennessee's ban. In we speak to a legal expert about the case and the line of questioning from the justices. I'm Daily Weyer editor in chief John Bickley with Georgia Howe. It's December 8th, and this is a Sunday edition of Morning Wire. Joining us to break down this week's oral arguments in Us vs. Skirmetti and the broader implications is Sarah Partial Perry, senior legal fellow at Heritage Foundation. Sarah, thanks so much for coming on. Always good to talk to you.

[Sarah Partial Perry]

Thanks for having me.

[Georgia Howe]

So this week we had the oral arguments for this landmark case. We here at the Daily Wire have followed this very closely, in part because of Matt Walsh's role that he played in this. His investigation into Vanderbilt helped prompt the law that this centers on. First, can you walk us through how we got here, how we got to the Supreme Court hearing?

[Sarah Partial Perry]

Yeah, this actually came from a parental rights challenge. Three parents of transgender minors brought this challenge against SB1, which was a law that was enacted with bipartisan in the state of Tennessee, saying that not only did it interfere with their rights to achieve this particular very controversial and experimental medical care for their children, but it was also a sex discriminatory law and that would make it illegal unconstitutional under the equal protection clause. Well, both the federal trial court and the 6th Circuit Court of Appeals found for Tennessee, basically determining that the state of Tennessee had satisfied the constitutional bar and it had every interest in protecting minors from unproven, scientifically sketchy procedures and that this was well within their police power as the state. Well, by the time it got to the 6th Circuit, the United States had filed a motion to intervene. It can do so when a state law challenging an equal protection clause violation is at issue. That's what they did here. And so by the time it got to the Supreme Court, it only granted review of the United States claim and not the parental rights claim. So what we heard was oral arguments specifically dedicated to whether or not this was sex discrimination under the equal protection clause.

[Georgia Howe]

So let's unpack that a bit more. What is the argument for this being sex discrimination and the argument against it?

[Sarah Partial Perry]

Well, Elizabeth Prelogar, the US Solicitor General for the United States, argues for the Biden administration that because the law makes a distinction on boys who are identified as boys at birth who want to get testosterone but will not allow girls who are identified as male at birth being transgender, of course they cannot get access to testosterone, that that's a facially discriminatory characteristic. But what the law actually does, and the state legislators are very careful to engage in this type of analysis, is to simply restrict for both males and females any access to the drugs determined by their age alone, which the Supreme Court has never held to be a class requiring elevated scrutiny and also based on the use to which the drugs would be put so restricted only based on use and age, nothing more, and treated men and women equally under the law.

[Georgia Howe]

And to be clear, what is barred here is to use these controversial procedures, these hormone treatments, puberty blockers, in order to attempt to change the gender or sex of a minor, Correct?

[Sarah Partial Perry]

That's exactly it. In fact, there is no restriction on the use of these puberty blockers for endocrine disorders like precocious puberty, which obviously indicates that those are appropriate medical uses. And of course, the state of Tennessee restricts the use of other drugs for particular purposes as well. It wants to make sure that the dangers of off label use, and that's exactly what's involved here, this is off label use of unproven drugs for gender dysphoria. They want to make sure that that use is restricted and they're constitutionally permitted to do that.

[Georgia Howe]

For those who aren't familiar with the term off label, which is actually crucial in this case, what does that mean in this context?

[Sarah Partial Perry]

The fda, the Food and Drug Administration, has never approved puberty blockers for gender dysphoria. So it's never approved those particular drugs for which these minor children and their parents and the United States have all argued to get access to. Instead, it's only approved them for endocrine disorders. So the state of Tennessee does not want minor children assuming the risk of off label use and making determinations that could have lifetime consequences.

[Georgia Howe]

Now, judging from what we heard on Wednesday, where do you think the justices are leaning in this case?

[Sarah Partial Perry]

I think there's a very strong reason to believe that at least five of the justices are going to be skeptical of the United States arguments. In fact, Justice Alito himself was fairly excoriating in his refusal to allow Elizabeth Prelogar, the Solicitor General, to be creative with her legal analysis and to ignore the science. In fact, he said that she's Relegated to a footnote, the bombshell Cast Review report, which we know came out of England earlier this year, but in fact, the science itself was lacking. We also know that Justice Kavanaugh said there is, quote, a red light here to prevent us from getting involved in new areas and constitutionalizing new areas of medicine. Justice Barrett said this is a question better left for the legislature, as did the Chief justice himself, who actually quoted without citing the case, Dobbs vs Jackson, Women's Health, by saying this issue is better suited for the people and their elected representatives. Strangely silent was Justice Gorsuch, who had nothing to say during two and a half hours, and he may be the swing vote in this case.

[Georgia Howe]

So Gorsuch was notably silent. Do you have any sense of why that might have been the case?

[Sarah Partial Perry]

You know, it could be one of two things. First of all, I think it's wise to remember that Justice Gorsuch was the majority opinion author in Bostock vs Clayton county dating to the year 2020. And in that case, Title 7 of the Civil Rights act relative to employment discrimination was expanded not only to prohibit sex discrimination, but also to prohibit gender identity discrimination. Now, he was that opinion's majority author. He may have been dealing with the fact that there is now a recognition that the Bostock opinion was a Pandora's box. The Biden administration has used the Bostock opinion to expand the administrative state and to force gender identity into concepts like medicine, school lunches, education, and more. That is something I think with which he will have to ultimately reckon because Elizabeth Prelog or the Solicitor General mentioned the similarity to Bostock. So he very much may have been curling his toes underneath the table.

[Georgia Howe]

So will this ruling potentially override that? Will this set a new precedent in terms of the discrimination clause writ large?

[Sarah Partial Perry]

Well, as the other Justices noted, particularly conservative justices, the analysis for a constitutional claim, a violation, for example, of the Equal Protection Clause, and whether it discriminates based on sex is slightly different than a discriminatory analysis based on sex. Under civil rights law, the Constitution holds to a higher bar, what's called intermediate or heightened scrutiny, and that's a higher bar for a state to achieve. But that analysis is different enough where Bostock is different from the current issue. I do think what it will do, however, is pin back the ears a little bit the reach of the Bostock determination and ensure that equal protection claims are not brought along alongside statutory civil rights discrimination claims.

[Georgia Howe]

All right, so that was the conservative response. What did we hear from the left leaning justices?

[Sarah Partial Perry]

Unsurprisingly, there was a lot of histrionic commentary about trans kids dying and that these are proven scientific interventions, when in fact we know that is not the case. But the most interesting comparison came from Justice Ketanji Brown Jackson, who cited Loving vs. Virginia as a analogous case law study. And in Loving vs. Virginia, that was the case in which the Supreme Court invalidated the interracial marriage ban from that state under the equal protection clause, essentially overriding the judgment of the state legislature. She argued for the United States to be able to do so here, but ignored the fact that, once again, sex is not the defining characteristic at issue.

[Georgia Howe]

Right. And Brown's questions in particular gained a lot of negative attention online. Now, it's notable that the conservatives seem to suggest that this issue is more appropriate to be dealt with by state legislatures rather than the court. And I think the implication here is that the science is constantly being updated and reexamined. The best practices are often changing, et cetera. Is the idea here that a federal court ruling can be sort of too permanent in a sense, for medical practices?

[Sarah Partial Perry]

Well, I'll hearken back to the Dobbs decision again. And we know the line of viability, for example, that Roe versus Wade said shifted and changed over the 50 years before Dobbs versus Jackson. Women's Health. And in writing the majority opinion, Justice Alito mentioned the fact that they should not be constitutionalizing areas of medical regulation that was wholly within the state's authority. I think they are very likely here to make the exact same determination, especially with so recent a ruling like that on the books.

[Georgia Howe]

And when do we expect to hear a decision to be handed down on this case?

[Sarah Partial Perry]

Well, there are quite a number of high profile decisions, but I would argue this is the most high profile, which indicates to me we are not likely to see an outcome here until probably the end of June 2025.

[Georgia Howe]

Okay. So beyond the Supreme Court and constitutional issues here, looking at the sort of broader legal issues, one of the things that the Matt Walsh investigation uncovered was an apparent financial incentive for promot kinds of very controversial, potentially dangerous treatments. Do you foresee legal trouble for those that have been involved in these kinds of programs?

[Sarah Partial Perry]

That's a good question. We know that this is a 3 to 5 billion dollars a year industry, and some estimates are as high as 10 billion. On average, gender medicine yields a doctor $8,000 per single procedure in sole profit. So we know money had quite a bit to do with this and with the incentive of doctors to medicalize these minor children. But there is good news. We've already seen a lawsuit coming out of California brought by Harmeet Dillon's law firm. And she's done excellent work. They are suing Kaiser Permanente for rushing three minor girls, three young teen girls, through the gender medicine gambit without getting informed consent. I do believe a reckoning is coming.

[Georgia Howe]

You mentioned Harmeet Dhillon. We actually caught up with her recently and she gave us an overview of her cases involving transition procedures. Here's some of what she said.

[Harmeet Dhillon]

We literally filed the first, second and third lawsuits on this issue in the country. I think other lawyers are joining us. And so these cases are wending their way through the court system or through arbitration because Kaiser tries to force people into arbitration, so do other medical providers. And one of the issues why there's so few cases is because there's statute of limitations that are very short, that really keep the window very narrow for these young women, largely women, to file lawsuits. And so it's heartbreaking the number of people we simply can't help because of these statute of limitations issues. So I do think that's going to make a difference. But the bigger and faster and more effective long term difference is going to be legislatures banning these procedures on children, medical boards taking away the licenses of doctors who commit medical malpractice, which I believe most of these doctors are doing. I mean, literally, I have cases where people go in, some guidance counselor sends them for one session with some rubber stamper who then goes and gets the girl's breast cut off. It's shocking and outrageous. You know, you have to go through more hassle to get like liposuction, I believe, than to get your breast cut off as a young girl. So it's insane and it needs to stop. And we shouldn't rely on the courts and lawyers. We should ask Republican legislatures and Democrat legislatures, frankly, if they care about humans to stop this practice.

[Georgia Howe]

Final question. How significant will this ruling ultimately be? Is it fair to say that this ruling will change how the issue of laws about trans procedures in other states are handled by the courts?

[Sarah Partial Perry]

Yeah, I think that's exactly accurate. In fact, there are other cases relative to the notion of gender identity pending on the Supreme Court's docket. But I think the first shot across the bow is the issue precisely with what we're dealing with now and the particular notion of gender medicine, because that is at bottom, such a controversial notion. I do believe for the 26 other states who are watching keenly what happens with Tennessee's ban when they themselves have all identical bans within their own states, they are very hopeful that the Supreme Court will come down on the side of states rights and their ability to protect minor children, which is something that the Supreme Court has recognized for more than 100 years.

[Georgia Howe]

A consequential decision coming this summer. Sarah, thank you so much for coming on. That was Heritage foundation senior legal fellow Sarah Partial Perry. And this has been a Sunday edition of MORNING Wire.