The Biden administration filed a petition with the Supreme Court on Monday to overturn Tennessee’s ban on gender transition procedures for minors.
This move by the Department of Justice follows lower court decisions that allowed similar bans to progress in Tennessee and two other states earlier this summer.
Lawyers for the DOJ argued that the bans, which include one in Kentucky, violate the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.
DOJ lawyers argued in the petition that the question of whether the “recent wave of bans on gender-affirming care are consistent with the Equal Protection Clause” is of national importance and “requires a definitive resolution.”
Parallel petitions were filed in the last week on behalf of transgender plaintiffs and their families, asking the nation’s highest court to hear cases over similar bans in Kentucky and Tennessee.
However, the DOJ’s Monday filing asked the Supreme Court to resolve only the question of whether the ban in Tennessee violates equal protection. The basis for this argument is the categorization of the law as a sex-based classification, with a focus on how it “discriminates against transgender individuals.”
The two private petitions related to the Tennessee and the Kentucky prohibitions ask an additional question of whether the bans violate the constitutional due process rights of parents to direct the upbringing of their children.
In March, Tennessee Gov. Bill Lee enacted SB1 into law, prohibiting transgender treatment for minors, which took effect in July. The legislation requires children who began such treatments prior to July 1 to cease them by March 31, 2024.
In April, several groups, including the American Civil Liberties Union (ACLU), filed a lawsuit challenging this law on behalf of families with “trans-identifying” children.
On Sept. 28, the Sixth Circuit Court of the U.S. Court of Appeals rejected a petitioner’s challenge in a 2–1 ruling, upholding Tennessee’s ban on transgender treatment for children.
In July, a panel of judges on the Sixth Circuit Court of the U.S. Court of Appeals lifted an order that blocked part of the ban and allowed it to take effect.
The DOJ’s brief argues that the U.S. Court of Appeals for the Sixth Circuit made an error in September by deeming the Tennessee and Kentucky bans likely constitutional. They argue that these bans should be subject to heightened scrutiny and that they fail this stricter standard.
“The Sixth Circuit did not suggest that laws like SB1 could survive heightened scrutiny. Instead, it applied only the deferential rational-basis standard because it held that some laws that draw sex-based lines do not trigger heightened scrutiny—and that laws discriminating based on transgender status never warrant heightened review,” the DOJ lawyers wrote.
“Those holdings are wrong, and they create or deepen circuit conflicts on the proper application of the Equal Protection Clause to laws targeting transgender individuals, both in the specific context of bans on gender-affirming care and more broadly.”
The DOJ also requested that the Supreme Court consider all three cases together and address the equal protection issue.
However, the DOJ’s stance differs from that of the other petitioners, who have asked the Supreme Court to evaluate whether the bans infringe on the constitutional due process rights of parents to guide their children’s upbringing.
In a footnote, the DOJ lawyers asserted that, in the government’s view, the due process question “does not warrant this Court’s review.”
“[B]ecause that aspect of the Sixth Circuit’s decision does not conflict with any decision of another court of appeals and does not otherwise satisfy this Court’s traditional certiorari standards,” they wrote. “Accordingly, the Court should grant the petitions limited to the equal-protection issue and consolidate the cases.”
If the justices agree to hear the case, any decision will have significant implications for the 19 states that have implemented laws limiting transgender youths’ access to transition-related care.
The DOJ emphasized in its petition that allowing these bans to take effect could result in “predictable and significant harms” for transgender adolescents in many parts of the country, including “escalating distress, anxiety, and suicidality.”
Tennessee’s legislation is part of a broader trend where multiple states are taking measures against transgender treatments for minors.
Gender transition procedures pose serious health risks, from mental health issues to glandular misfunction, heart complications, and even death.
In May, lawmakers demanded answers after two youths participating in a transgender hormone study, funded by the National Institutes of Health, took their own lives. In addition, 11 participants reported having suicidal thoughts.