The U.S. Supreme Court heard oral arguments in U.S. v. Skrmetti on Wednesday, the case brought by the Biden-Harris administration’s Department of Justice to challenge Tennessee’s ban on gender affirming care for minors.

At issue is whether the law, which proscribes medical, surgical, and pharmacological interventions for purposes of gender transition, abridges the right to due process and equal protection under the 14th Amendment to the U.S. Constitution, as well as Section 1557 of the Affordable Care Act, which prohibits sex-based discrimination.

The petitioners — U.S. Solicitor General Elizabeth Prelogar, who represents the federal government, and Chase Strangio, co-director of the ACLU’s LGBT & HIV Project — argue the Supreme Court should apply heightened scrutiny to laws whose application is based on transgender status rather than the rational basis test that was used by the U.S. Court of Appeals for the 6th Circuit, which is more deferential to decisions by legislators.

Legal experts agree the conservative justices are unlikely to be persuaded even though, as Tennessee Solicitor General J. Matthew Rice made clear on Wednesday, under the state’s statute “If a boy wants puberty blockers, the answer is yes, if you have precocious puberty; no, if you’re doing this to transition. If a girl wants puberty blockers, the answer is yes, if you have precocious puberty; no, if you’re doing this to transition.”

Oral arguments delved into a range of related topics, beginning with conservative Justice Samuel Alito’s questions about debates within the global scientific and medical communities about the necessity of these interventions for youth experiencing gender dysphoria and the risks and benefits associated with each treatment.

“Isn’t the purpose of intermediate scrutiny to make sure that we guard against — I’m not intending to insult — but we all have instinctual reactions, whether it’s parents or doctors or legislatures, to things that are wrong or right,” said liberal Justice Sonia Sotomayor.

“For decades, women couldn’t hold licenses as butchers or as lawyers because legislatures thought that we weren’t strong enough to pursue those occupations,” she said. “And some, some people rightly believe that gender dysphoria may cause may be changed by some children, in some children, but the evidence is very clear that there are some children who actually need this treatment. Isn’t there?”

After Prelogar answered in the affirmative, Sotomayor continued, “Some children suffer incredibly with gender dysphoria, don’t they? Some attempt suicide. Drug addiction is very high among some of these children because of their distress. One of the petitioners in this case described going almost mute because of their inability to speak in a voice that they could live with.”

Conservative Justice Brett Kavanaugh focused his initial questions on whether the democratic process should adjudicate questions of science and policy, asserting that both sides have presented compelling arguments for their respective positions.

There are solutions that would allow policymakers to mitigate concerns with gender affirming medical interventions for minor youth without abridging the Equal Protection clause and Section 1557 of the ACA, Prelogar said.

For instance, “West Virginia was thinking about a total ban, like this one, on care for minors,” she said, “but then the Senate Majority Leader in West Virginia, who’s a doctor, looked at the underlying studies that demonstrate sharply reduced associations with suicidal ideation and suicide attempts, and the West Virginia Legislature changed course and imposed a set of guardrails that are far more precisely tailored to concerns surrounding the delivery of this care.”

She continued, “West Virginia requires that two different doctors diagnose the gender dysphoria and find that it’s severe and that the treatment is medically necessary to guard against the risk of self harm. The West Virginia law also requires mental health screening to try to rule out confounding diagnoses. It requires the parents to agree and the primary care physician to agree. And I think 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.”

Later, in an exchange with Rice, Sotoyamor said, “I thought that that’s why we had intermediate scrutiny when there are differences based on sex, to ensure that states were not acting on the basis of prejudice.”

She then asked whether a hypothetical law mirroring Tennessee’s that covered adults as well as minor youth would pass the rational basis test. Rice responded, “that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws.”

“Well, Your Honor, of course, our position is there is no sex based classification. But to finish the answer, that to the extent that along with dealing with adults, would pass rational basis review, that just means it’s left to the democratic process, and that democracy is the best check on potentially misguided laws.”

“When you’re one percent of the population or less,” said Sotomayor, “it’s very hard to see how the democratic process is going to protect you. Blacks were a much larger percentage of the population and it didn’t protect them. It didn’t protect women for whole centuries.”

Advocacy groups in the wake of President-elect Donald Trump’s election fear his administration’s proposed immigration policies will place LGBTQ migrants and asylum seekers at increased risk.

“What we are expecting again is that the new administration will continue weaponizing the immigration system to keep igniting resentment,” Abdiel Echevarría-Cabán, an immigration lawyer who is based in Texas’s Rio Grande Valley, told the Washington Blade.

Trump during the campaign pledged a “mass deportation” of undocumented immigrants.

The president-elect in 2019 implemented the Migrant Protection Protocols program — known as the “Remain in Mexico” policy — that forced asylum seekers to pursue their cases in Mexico.

Advocates sharply criticized MPP, in part, because it made LGBTQ asylum seekers who were forced to live in Tijuana, Ciudad Juárez, Matamoros, and other Mexican border cities even more vulnerable to violence and persecution based on their gender identity and sexual orientation.

The State Department currently advises American citizens not to travel to Tamaulipas state in which Matamoros is located because of “crime and kidnapping.” The State Department also urges American citizens to “reconsider travel” to Baja California and Chihuahua states in which Tijuana and Ciudad Juárez are located respectively because of “crime and kidnapping.”

The Biden-Harris administration ended MPP in 2021.

The Centers for Disease Control and Prevention in March 2020 implemented Title 42, which closed the Southern border to most asylum seekers and migrants because of the COVID-19 pandemic. The policy ended in May 2023.

Robert Contreras, president of Bienestar Human Services, a Los Angeles-based organization that works with Latino and LGBTQ communities, in a statement to the Blade noted Project 2025, which “outlines the incoming administration’s agenda, proposes extensive rollbacks of rights and protections for LGBTQ+ individuals.”

“This includes dismantling anti-discrimination protections, restricting access to gender-affirming healthcare, and increasing immigration enforcement,” said Contreras.

Trans woman in Tijuana nervously awaits response to asylum application

A Biden-Harris administration policy that took place in May 2023 says “noncitizens who cross the Southwest land border or adjacent coastal borders without authorization after traveling through another country, and without having (1) availed themselves of an existing lawful process, (2) presented at a port of entry at a pre-scheduled time using the CBP (U.S. Customs and Border Protection) One app, or (3) been denied asylum in a third country through which they traveled, are presumed ineligible for asylum unless they meet certain limited exceptions.” The exceptions under the regulation include:

• They were provided authorization to travel to the United States pursuant to a DHS-approved parole process; 
• They used the CBP One app to schedule a time and place to present at a port of entry, or they presented at a port of entry without using the CBP One app and established that it was not possible to access or use the CBP One app due to a language barrier, illiteracy, significant technical failure, or other ongoing and serious obstacle; or 
• They applied for and were denied asylum in a third country en route to the United States.  

Biden in June issued an executive order that prohibits migrants from asking for asylum in the U.S. if they “unlawfully” cross the Southern border.

The Organization for Refuge, Asylum and Migration works with LGBTQ migrants and asylum seekers in Tijuana, Mexicali and other Mexican border cities.

ORAM Executive Director Steve Roth is among those who criticized Biden’s executive order. Roth told the Blade the incoming administration’s proposed policies would “leave vulnerable transgender people, gay men, lesbians, and others fleeing life-threatening violence and persecution with little to no opportunity to seek asylum in the U.S. stripped of safe pathways.”

“Many will find themselves stranded in dangerous regions like the Mexico-U.S. border and transit countries around the world where their safety and well-being will be further jeopardized by violence, exploitation, and a lack of support,” he said. 

Jennicet Gutiérrez, co-executive director of Familia: TQLM, an organization that advocates on behalf of transgender and gender non-conforming immigrants, noted to the Blade a trans woman who has asked for asylum in the U.S. “has been patiently waiting in Tijuana” for more than six months “for her CBP One application response.”

“Now she feels uncertain if she will ever get the chance to cross to the United States,” said Gutiérrez.

She added Trump’s election “is going to be devastating for LGBTQ+ asylum seekers.”

“Transgender migrants are concerned about the future of their cases,” said Gutiérrez. “The upcoming administration is not going to prioritize or protect our communities. Instead, they will prioritize mass deportations and incarceration.”

TransLatin@ Coalition President Bamby Salcedo echoed Gutiérrez.

“Trans people who are immigrants are getting the double whammy with the new administration,” Salcedo told the Blade. “As it is, trans people have been political targets throughout this election. Now, with the specific target against immigrants, trans immigrants will be greatly impacted.”

‘We’re ready to keep fighting’

Trans Queer Pueblo is a Phoenix-based organization that provides health care and other services to undocumented LGBTQ immigrants and migrants of color. The group, among other things, also advocates on behalf of those who are in U.S. Immigration and Customs Enforcement detention centers.

“We refuse to wait for politicians to change systems that were designed to hurt us,” Trans Queer Pueblo told the Blade in a statement. “The elections saw both political parties using our trans and migrant identities as political pawns.”

Trans Queer Pueblo acknowledged concerns over the incoming administration’s immigration policies. It added, however, Arizona’s Proposition 314 is “our biggest battle.”

Arizona voters last month approved Proposition 314, which is also known as the Secure the Border Act.

Trans Queer Pueblo notes it “makes it a crime for undocumented people to exist anywhere, with arrests possible anywhere, including schools and hospitals.” The group pointed out Proposition 314 also applies to asylum seekers.

“We are building a future where LGBTQ+ migrants of color can live free, healthy, and secure, deciding our own destiny without fear,” Trans Queer Pueblo told the Blade. “This new administration will not change our mission — we’re ready to keep fighting.”

Contreras stressed Bienestar “remains committed to advocate for the rights and safety of all migrants and asylum seekers.” Gutiérrez added it is “crucial for LGBTQ+ migrants to know that they are not alone.”

“We will continue to organize and mobilize,” she said. “We must resist unjust treatments and laws.”

Several leading LGBTQ organizations in D.C. are coming together to make sense of the recent election and to discuss the future of advocacy and resilience as President-elect Donald Trump prepares to take office. 

With Republicans in firm control of the federal government after winning majorities in the House and Senate, many are concerned about attacks on the LGBTQ community, including Trump’s pledge to ban trans people from serving in the military. In addition, many LGBTQ federal workers have expressed concerns about being targeted for reassignment or termination, as outlined in Project 2025, a right-wing blueprint for Trump’s second term.

In response, D.C.’s LGBTQ community is coming together for an event on Thursday, Dec. 12, 6:30-8 p.m. at the Eaton Hotel (1201 K. St., N.W.) featuring an array of speakers who will address issues, including: anticipated policy shifts; community resilience strategies; legal rights; immigration advocacy; and federal workers’ rights. 

The event, titled, “Charting Our Future: LGBTQ+ Advocacy & Resilience in a Changing Landscape” is free; visit washingtonblade.com/future to RSVP.

The event is being hosted by the Washington Blade and includes community partners: the DC LGBTQ+ Budget Coalition, HME Consulting & Advocacy, Eaton DC, DC LGBTQ+ Community Center, Capital Pride Alliance, and the Mayor’s Office of LGBTQ+ Affairs. Heidi Ellis of the DC LGBTQ+ Budget Coalition will moderate. A list of speakers will be released later this week.