At least 1,000 people rallied outside the U.S. Supreme Court on Wednesday as the justices considered whether a Tennessee law banning gender-affirming medical care for transgender youth is unconstitutional.

Dueling rallies began early in the morning, with protesters supporting trans rights and protesters supporting Tennessee’s ban on gender-affirming care each stationed with podiums on opposite sides.

Trans rights protesters, who significantly outnumbered the other group, held signs reading “Keep hate out of healthcare,” and “Respect family medical decisions.” On the other side, protesters carried signs with messages like “Sex change is fantasy,” and “Stop transing gay kids.”

Ari, a trans person who grew up in Nashville and now lives in D.C., spoke to the Washington Blade about the negative effects of the Tennessee law on the well-being of trans youth. 

“I grew up with kids who died because of a lack of trans healthcare, and I am scared of that getting worse,” they said. “All that this bill brings is more dead kids.”

The Tennessee law that is being challenged in U.S. v Skrmetti took effect in 2023 and bans medical providers from prescribing medical treatments such as puberty blockers and hormone therapies to trans youth. 

A number of Democratic lawmakers, including U.S. Rep. Mark Takano (D-Calif.), co-chair of the Congressional Equality Caucus, and U.S. Sens. Ed Markey (D-Mass.) and Jeff Merkley (D-Ore.) addressed the crowd in support of trans rights. 

In his speech, Merkley said Americans deserved freedom in accessing gender affirming care and criticized the law as political intervention in private medical decisions. 

“Americans should have the freedom to make medical decisions in the privacy of their doctor’s office without politicians trying to dictate to them,” he said. 

Robert Garofalo, a chief doctor in the division of Adolescent and Young Adult Medicine at a Chicago children’s hospital, emphasized the importance of trans youth having access to gender affirming care. 

“We [providers] are seeing patients and families every day, present with crippling fears, added stress and anxiety as they desperately try to locate care where it remains legal to do so,” Garofalo, who is also a professor of pediatrics at Northwestern University, told the crowd. “Transgender children and adolescents deserve health care that is grounded in compassion, science and principles of public health and human rights. They must not be denied life saving medical care — their lives depend on it.”

Major U.S. medical associations, including the American Medical Association and the American Academy of Pediatrics, support gender affirming care. 

Research has found gender affirming care improves the mental health and overall well-being of gender diverse children and adolescents. Those who are denied access to gender affirming care are at increased risk for significant mental health challenges.  

An unlikely coalition came out to support Tennessee’s ban on gender affirming care. Far-right figures, such as U.S. Rep. Marjorie Taylor Greene (R-Ga.) and Matt Walsh — both of whom have a history of making homophobic statements — were joined by groups such as the LGBT Courage Coalition and Gays Against Groomers. 

The groups questioned the quality of the research finding gender-affirming care to have a positive effect on the well-being of trans and gender nonconforming youth and argued that minors cannot consent to medical treatment. Ben Appel, a co-founder of the LGBT Courage Coalition, which he notes was “co-founded by gay, lesbian, bisexual, and trans adults who oppose pediatric gender medicine, which we know to be non-evidence-based and harmful to young gay people,” said gender nonconformity is often part of the lesbian, gay, and bisexual experience and should not be “medicalized.” 

“I care about the adult gay detransitioners who have been harmed … by these homophobic practice,” he said “They should have just been told they’re gay.” 

Claire, a Maryland resident who attended the rally in favor of the Tennessee law and claims to have detransitioned, described being prescribed testosterone and having a mastectomy at 14, medical treatments she says she was unable to consent to at that age. She doesn’t oppose gender affirming care for adults but is opposed to “medical experimentation on children.”

“I think that adults should be allowed to do whatever they want with their bodies. I think that it is if someone is happy with the decision that they made that’s great,” she said. “I was not able to make that decision. I was a child.” 

But trans activists fear that a ruling in favor of Tennessee could pave the way for states to restrict access to gender-affirming care for adults.

“There’s also broader implications for civil rights and trans rights, more broadly, for adults in the future. There are some states that have tried to ban some healthcare for adults — they haven’t yet — but I think that’s something we might also see if the Supreme Court rules that way,” Ethan Rice, a senior attorney at Lambda Legal, one of the legal organizations representing the plaintiffs in U.S. v Skrmetti, said.

In the case, three Tennessee families and a physician are challenging the Tennessee law on the grounds that it violates the Equal Protection Clause in the 14th Amendment by drawing lines based on sex and discriminating against trans people. The statute bans medications for trans children while allowing the same medications to be used when treating minors suffering from other conditions, such as early-onset puberty. 

A 2020 Supreme Court decision determined sex-based discrimination includes discrimination based on gender identity or sexual orientation. The key question in U.S. v. Skrmetti is whether this interpretation applies under the Equal Protection Clause.

“We really hope that the Supreme Court recognizes their own precedent on sex discrimination cases and comes out the right way, saying this is sex discrimination by the state of Tennessee and thus is unconstitutional,” Rice said. 

Twenty-six states currently have laws or policies restricting minors’ access to gender-affirming care. If the court rules against Tennessee, similar bans in other states would also be unconstitutional, granting trans youth greater access to gender affirming care nationwide. 

Edith Guffey, the board chair at PFLAG, expressed doubt the court will strike down the law, citing its sharp ideological turn to the right in recent years. But she said she remains hopeful. 

“I hope that the court will … step outside agendas and look at the needs of people and who has the right to say what’s good for their children,” she said.

Chase Strangio, an ACLU attorney representing the families, on Wednesday became the first openly trans lawyer to argue before the Supreme Court. He addressed the trans rights protesters after the hearing. 

“Whatever happens, we are the defiance,” Strangio said. “We are collectively a refutation of everything they say about us. And our fight for justice did not begin today, it will not end in June — whatever the court decides.”

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.”

The U.S. Supreme Court’s fall term began on Monday with major cases on the docket including U.S. v Skrmetti, which could decide the fate of 24 state laws banning the use of puberty blockers and hormone treatments for transgender minors.

First, however, the justices dealt another blow to the Biden-Harris administration and reproductive rights advocates by leaving in place a lower court order that blocked efforts by the federal government to allow hospitals to terminate pregnancies in medical emergencies.

The U.S. Department of Health and Human Services had issued a guidance instructing healthcare providers to offer abortions in such circumstances, per the federal Emergency Medical Treatment and Labor Act, which kicked off litigation over whether the law overrides state abortion restrictions.

The U.S. Court of appeals for the 5th Circuit had upheld a decision blocking the federal government from enforcing the law via the HHS guidance, and the U.S. Department of Justice subsequently asked the Supreme Court to intervene.

The justices also declined to hear a free speech case in which parents challenged a DOJ memo instructing officials to look into threats against public school officials, which sparked false claims that parents were being labeled “domestic terrorists” for raising objections at school board meetings over, especially, COVID policies and curricula and educational materials addressing matters of race, sexuality, and gender.

Looking to the cases ahead, U.S. v. Skrmetti is “obviously the blockbuster case of the term,” a Supreme Court practitioner and lecturer at the Harvard law school litigation clinic told NPR.

The attorney, Deepak Gupta, said the litigation “presents fundamental questions about the scope of state power to regulate medical care for minors, and the rights of parents to make medical decisions for your children.”

The ACLU, which represents parties in the case, argues that Tennessee’s gender affirming care ban violates the Equal Protection Clause of the 14th Amendment by allowing puberty blockers and hormone treatments for cisgender patients younger than 18 while prohibiting these interventions for their transgender counterparts.

The organization notes that “leading medical experts and organizations — such as the American Medical Association, the American Psychiatric Association, and the American Academy of Pediatrics — oppose these restrictions, which have already forced thousands of families across the country to travel to maintain access to medical care or watch their child suffer without it.”

When passing their bans on gender affirming care, conservative states have cited the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization (2022), which overturned constitutional protections for abortion that were in place since Roe v. Wade was decided in 1973.

The ACLU notes “U.S. v. Skrmetti will be a major test of how far the court is willing to stretch Dobbs to allow states to ban other health care” including other types of reproductive care like IVF and birth control.

Also on the docket in the months ahead are cases that will decide core questions about the government’s ability to regulate “ghost guns,” firearms that are made with build-it-yourself kits available online, and the constitutionality of a Texas law requiring age verification to access pornography.

The latter case drew opposition from liberal and conservative groups that argue it will have a chilling effect on adults who, as NPR wrote, “would realistically fear extortion, identity theft and even tracking of their habits by the government and others.”