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The U.S. Supreme Court's conservative majority appears likely to guarantee a bleak future for the nation's transgender adolescents -- one where politically motivated lawmakers, not parents and physicians, are allowed to make health care decisions for them.
The case before the court, United States v. Skrmetti, originated with three transgender teenagers in Tennessee and their families, who sued the state over its ban on gender-affirming care for minors. The law prohibits doctors from prescribing puberty blockers and hormones to adolescents experiencing gender dysphoria. Based on the tone of the questions and comments during a hearing Wednesday, the court, with a 6-3 conservative majority, seems inclined to uphold the ban.
The decision is likely to have far-reaching consequences, affecting 23 other states that have passed laws banning gender-affirming care for minors in the past three years. And it could embolden conservative politicians, some of whom see transgender rights as an easy way to rile their base, to push their agendas even further. Advocates fear the case could lead to similar laws for transgender adults.
That outcome would be devastating for the estimated 1.6 million transgender Americans. These treatments are life-affirming, allowing people to inhabit a body that matches their identity. For some, they are lifesaving.
The Biden administration joined the lawsuit, arguing the ban violates the Constitution. Solicitor General Elizabeth Prelogar, representing the administration, told the court that the law discriminates against adolescents based on sex. The drugs can still be prescribed for adolescents who aren't transgender and are used for other medical purposes.
Tennessee Solicitor General Matthew Rice argued that the law protects children from what the state believes are harmful treatments and irreversible changes. He contended that some of these young people would change their minds and that hormone therapy could compromise their fertility.
The court's conservatives seemed to buy that argument, even though it relied on medical claims presented without nuance or were outright incorrect. Justices Samuel Alito and Brett Kavanaugh repeatedly referred to the evolving attitudes on the use of puberty blockers and hormones in Europe.
"It strikes me as a pretty heavy yellow light, if not red light, for this court to come in, the nine of us, and to constitutionalize the whole area, when ... countries that have been at the forefront of this are pumping the brakes on this kind of treatment," Kavanaugh said.
It's true that several countries, most prominently the U.K. and Sweden, recently tightened guidelines on the use of puberty blockers and hormones. But none of these countries have banned gender-affirming treatment for adolescents. (And if the judges want to point to Europe as an example, a medical group in France this week released the first national guidelines for treating transgender adolescents -- guidelines that support the use of puberty blockers and hormone therapy.)
Alito and Kavanaugh also focused on what Tennessee claims is a sizable portion of people -- the figure cited was 85% -- who later regret transitioning. Studies have placed that number at closer to 1%, and puberty blockers, which are reversible, are specifically intended to give adolescents time to explore their gender identity.
The justices were also hung up on the idea that these drugs are being used "off-label," meaning the FDA has not approved them to treat gender dysphoria. The implication, of course, was that that makes them dangerous. Many pediatric medicines are prescribed off-label; the solution is to study them in children, not ban them.
Because the justices are being asked to consider whether the law discriminates based on sex, their ruling could, in theory, open the door to similar laws banning gender-affirming therapy for adults. In a tense exchange between Justice Sonia Sotomayor and Rice, the justice asked if upholding the ban might encourage lawmakers to target gender-affirming treatment for adults. Rice could not deny that possibility.
"Your Honor, we think that if we're assuming a similarly worded statute, that there would still not be a sex- or a transgender-based classification," Rice said.
"So, you're licensing states to deprive grown adults of the choice of which sex to adopt?" Sotomayor asked.
When Rice argued there were other means to claw back such laws if enacted, Sotomayor responded, "That's quite an interesting way to protect a population."
If the ban is upheld, the decision would likely solidify similar laws under litigation in other states, affecting nearly 40% of transgender youth in the US. The prospect of broader bans in an increasingly hostile political environment (fomented by President-elect Donald Trump, whose campaign spent a reported $215 million on ads stoking anti-transgender fears) is exacting a huge mental toll on transgender youth and their families. One study found that suicide attempts among transgender teens increased up to 72% after states passed bills targeting them. A pediatric endocrinologist working in a state with a ban told me his patients "feel they are being pursued even into adulthood, that there's no safe place for them."
As with the proliferation of abortion bans, these laws are widening the divide between the haves and have-nots, where a person's ability to access vital health care legally is based on their ZIP Code rather than what they and their doctor decide is best. Doctors who treat transgender adolescents tell me some of their patients' families are making the difficult decision to move to ban-free states or even other countries. Others are forced to travel -- sometimes several states away -- to access care. And many are simply forgoing treatment. That means not starting needed medication or stopping treatment and undergoing a painful transition back into a body that doesn't match their identity.
Putting families in these difficult, even dangerous situations does not seem like protecting children to me.
On a call with media earlier this week, Brian Williams, the father of LW, one of the adolescents involved in the suit, outlined the stakes for his daughter and so many other transgender teens. "Tennessee's ban on gender-affirming medical care is an active threat to the future my daughter deserves," he said.
At the end of the day, these families simply ask for basic humanity.
"We are not expecting anyone to understand everything about our family or the needs of transgender young people like LW," Williams said. "What we are asking for is for her freedom to be herself without fear."
Isn't that what all parents want? Unfortunately, the Supreme Court's majority appears to be headed in a direction that will rob millions of kids of that fundamental right.
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This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Lisa Jarvis is a Bloomberg Opinion columnist covering biotech, health care and the pharmaceutical industry. Previously, she was executive editor of Chemical & Engineering News.
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