The Supreme Court Leads The Way To A New Phase Regarding The Transgender Debate
(ANALYSIS) The Justice Department is in a legal fight against Tennessee and, by extension, all 26 states with laws that forbid or restrict “gender-affirming” transition treatments for youths under the age of 18. Observers of the Dec. 4 U.S. Supreme Court arguments in this United States v. Skrmetti case figure the Court will favor federalism, allowing states leeway for such limitations.
No matter how the Court frames the sex-change issue in its ruling, due by next June, its decision to handle such a dispute — alongside other developments — takes America’s transgender controversy, with its moral and religious implications, well beyond such things as pronoun usage and into a complex new phase.
Transgender matters became a surprise partisan factor in the 2024 election. The platform of incoming President Donald Trump pledges to forbid tax funding for “sex change surgeries,” to deny federal funds to schools that are “pushing … radical gender ideology,” and to “keep men out of women’s sports.” Trump also plans to drop the Biden Department of Education’s addition of “gender identity and characteristics” to discrimination that can end a school’s tax funding. This new regulation takes no position on “eligibility criteria for athletic teams.”
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Tennessee prohibits medical treatments intended to enable “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported” distress from discord between that sex and “asserted identity.” Transitions for children and teens experiencing gender dysphoria, the feeling of being “born in the wrong body,” involve prescriptions for “puberty blockers” to delay normal sexual development, then for cross-sex hormones to change a patient’s physical appearance. Surgery for minors is rare.
A January YouGov poll showed support for banning puberty blockers with youths at 44%, with 32% opposed and 24% unsure. Banning of cross-sex hormones had 45% support, with 35% opposed and 20% unsure. Allowing transgender athletes on “teams that match their gender identity” rather than sex at birth was opposed by 59% to 19%, with 22% unsure.
The “friend of the court” briefs filed in the Tennessee case demonstrate the scope of this developing culture war. The Biden Administration’s legal effort against restrictions is supported by 19 Democratic-run states and the District of Columbia; 164 Democratic members of the U.S. House and Senate; the American Medical Association, American Academy of Pediatrics, and 20 other organizations of health professionals; the American Bar Association and numerous legal scholars; American Civil Liberties Union; NAACP Legal Defense Fund; and many LGBT advocates.
On the opposite side, Tennessee and the like-minded states are backed in briefs filed by 23 state legislatures, the 500-member American College of Pediatricians, traditionalist scholars, major organizations of social conservatives and — most notably — the nation’s two largest religious bodies, the Catholic Church and Southern Baptist Convention. (For whatever reason, the important “mainline” and liberal Protestant churches and Jewish groups did not file briefs in this case).
At the Supreme Court hearing, U.S. Solicitor General Elizabeth Prelogar (a onetime clerk for Justices Ruth Bader Ginsburg and Elena Kagan) protested that for Tennessee “it doesn’t matter what parents decide is best for their children. It doesn’t matter what patients would choose for themselves. And it doesn’t matter if doctors believe this treatment is essential.” She asked the Court to return the case to the 6th Circuit Court of Appeals in Cincinnati for reconsideration under the Constitution’s “equal protection” clause.
The legal brief from the U.S. Catholic bishops reviews the church’s well-established belief that gender transitions, whether for youths or adults, are ”immoral and contrary to God’s will,” citing recent statements from Pope Francis and Vatican agencies. From there, the bishops protest that the Court needs to guarantee religious freedom protection because Christian agencies and individuals “have faced a litigation onslaught” against their beliefs and practices, citing 20 such cases.
The vigorously-framed critique of Biden Administration policy filed by the Southern Baptists’ public-policy commission typifies thinking among evangelical and conservative Protestants. It agrees with Catholics on the theology, but mostly seeks what’s seen as prudential government action. The brief asserts that the states have a responsibility “to restrain evil and promote the good of its people, including the young and vulnerable,” which means barring “medical procedures that refashion healthy bodies” of children despite potentially harmful side effects and the unknowable long-term impact. The Baptists reject the Department of Justice claims of discrimination by Tennessee because its law “equally protects and respects the integrity of all adolescent bodies.”
If hormonal treatments for youths are considered experiments rather than routine medical care, standard medical ethics questions whether the required “informed consent” is even possible from minors with treatments that may bring irreversible and life-changing processes. Parental rights as such are not raised in this lawsuit, but the Baptists say parents cannot exercise absolute decision-making power in such situations.
In the ongoing debate, the mostly evangelical, 19,000-member Christian Medical and Dental Association, which supports Tennessee, offers a detailed conservative deliberation on the medical problems. But evangelical clinical psychologists in this field portray practical complications in a recent book.
Meanwhile, a week after the Supreme Court hearing, Britain banned puberty blocker treatments due to the “unacceptable safety risk” as judged by “medical experts.” This applied research findings reported this past April by a distinguished pediatrician. There’ve also been similar pullbacks in Denmark, Finland, France, Norway and Sweden.
A divided Supreme Court decided on Dec. 9 not to take up a complaint by parents in Eau Claire, Wisconsin, over their public schools’ policy said to accept a student’s transition on campus without parents’ knowledge or consent. The State of New Jersey was again in court Nov. 19 in its parallel action, based on anti-discrimination law, against four dissenting local school boards.
The question of locker room and bathroom access has now reached Capitol Hill, with the U.S. House speaker on Nov. 20 restricting access by the first transgender member, newly elected Delaware Democrat Sarah McBride.
On Dec. 11, the House passed the necessary defense authorization bill with added language to prevent the military’s Tricare health system from covering transition treatments on children under 18 “that could result in sterilization.” This decision is pending.
Then there’s the “detransition” phenomenon among patients dissatisfied with their gender change treatment who want to revert to their birth sex – or who no longer can. One such patient filed what could be a landmark lawsuit on Dec. 5 claiming permanent harm was inflicted by Johanna Olson-Kennedy, medical director of the nation’s largest transgender youth clinic at Los Angeles Children’s Hospital.
Richard N. Ostling was a longtime religion writer with The Associated Press and with Time magazine, where he produced 23 cover stories, as well as a Time senior correspondent providing field reportage for dozens of major articles. He has interviewed such personalities as Billy Graham, the Dalai Lama, Mother Teresa and Joseph Cardinal Ratzinger (later Pope Benedict XVI); ranking rabbis and Muslim leaders; and authorities on other faiths; as well as numerous ordinary believers. He writes a bi-weekly column for Religion Unplugged.