The U.S. Department of Justice (DOJ) changed sides on Feb. 7 in a Biden-era Supreme Court challenge to a Tennessee law banning transgender procedures for minors.
The DOJ has disavowed its prior position and now argues that state law is constitutional.
Although the department had previously argued the state law was unconstitutional, it said in a new High Court filing that it is not requesting dismissal of the case, United States v. Skrmetti.
During the hearing, several justices seemed skeptical of the challenge, raising concerns about the evolving nature of the debate in this policy area, as well as the level of scrutiny that courts should apply to laws such as Tennessee’s.
Some justices seemed hesitant about applying the U.S. Constitution in the way that the DOJ suggested the court should, while others indicated that some children legitimately need these treatments.
Position changes in high-profile Court cases have often taken place in recent years when a new party assumes the presidency.
After President Joe Biden was inaugurated in January 2021, the DOJ similarly changed its position on several court cases that were pending at the time.
President Donald Trump was inaugurated on Jan. 20 and Pam Bondi, his nominee for attorney general, who oversees the DOJ, was sworn in on Feb. 5.
Acting Solicitor General Sarah Harris, who is currently the Trump administration’s top lawyer at the Supreme Court, is recused from the case. The letter did not explain the recusal.
The Tennessee law forbids health care providers from “prescribing, administering, or dispensing any puberty blocker or hormone” if such treatment is rendered “for the purpose” of “enabling a minor to identify with or live as, a purported identity inconsistent with the minor’s sex” or “treating purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” according to the letter.
The Biden-era DOJ had argued that the law violated the equal protection clause of the 14th Amendment, but the Trump administration rejects that view.
“Following the change in administration, the Department of Justice has reconsidered the United States’ position in the case. The purpose of this letter is to notify the Court that the government’s previously stated views no longer represent the United States’ position,” Gannon said in the letter to the court.
He said the DOJ “has now determined that SB1 does not deny equal protection on account of sex or any other characteristic.”
“Accordingly, the new administration would not have intervened to challenge SB1—let alone sought this Court’s review of the Court of Appeals’ decision reversing the preliminary injunction against SB1,” he said.
Despite this change in legal stance, the government “believes that the confluence of several factors counsels against seeking to dismiss its case in this Court” and that the Supreme Court’s “resolution of the question presented will bear on many cases pending in the lower courts,” the letter said.
Even with the DOJ’s change, the “dispute ... has not become moot,” or legally irrelevant, and the case should continue, it said.
It is unclear whether the justices will respond to the letter.
Unless the justices decide otherwise, the Supreme Court is on track to issue a ruling in the case by June.
