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The law is the subject of a challenge in a case heard at the Supreme Court in December.
The federal government no longer opposes Tennessee’s ban on gender-affirming care for transgender youth.
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President Joe Biden’s administration had joined a court case, U.S. v. Skrmetti, originally known as L.W. v. Skrmetti, in opposition to the ban. The Supreme Court heard oral arguments in the case in December. But under Donald Trump, the government has done an about-face.
“Last year, the United States filed briefs contending that SB1 [the Tennessee law] violates the Equal Protection Clause of the Fourteenth Amendment,” reads a letter sent to the court Friday by Deputy Solicitor General Curtis E. Gannon. “The United States advanced the same position at oral argument. Following the change in Administration, the Department of Justice has reconsidered the United States’ position in this 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 The purpose of this letter is to notify the Court that the government’s previously stated views no longer represent the United States’ position.”
This is one of many anti-transgender actions Trump’s administration has taken since he was inaugurated, including an executive order seeking to end any federal funding for gender-affirming care for trans people under 19, something now being challenged in court as well. The administration’s position is now aligned with that of the Tennessee officials defending the trans care ban, the letter says.
The lawyers representing those who sued to challenge the ban issued a joint statement condemning the government’s move. “Tennessee’s discriminatory and baseless ban continues to upend the lives of our plaintiffs — transgender adolescents, their families, and a medical provider,” says the statement from Lambda Legal, the American Civil Liberties Union, the ACLU of Tennessee, and Akin Gump Strauss Hauer & Feld. “These Tennesseans have had their Constitutional right to equal protection under the law violated by the state of Tennessee. This latest move from the Trump administration is another indication that they are using the power of the federal government to target marginalized groups for further discrimination. We condemn this latest move and will continue to fight to vindicate the constitutional rights of all LGBTQ people.”
In March 2023, Tennessee Gov. Bill Lee, a Republican, signed Senate Bill 1 into law. It bans surgery, puberty blockers, and hormone treatment for the purpose of gender transition for people under 18. The following month, three families with transgender children and one doctor filed a federal lawsuit challenging the law.
The suit was brought by Samantha and Brian Williams of Nashville and their 15-year-old transgender daughter, two other plaintiff families filing anonymously, and Dr. Susan Lacy of Memphis. They are represented by Lambda Legal, the American Civil Liberties Union and its Tennessee affiliate, and the law firm of Akin Gump Strauss Hauer & Feld LLP. The suit was filed in April 2023 in U.S. District Court for the Middle District of Tennessee. It names as defendants Tennessee Attorney General Jonathan Skrmetti, the Tennessee Department of Health, the Tennessee Board of Medical Examiners, and various state officials.
The suit argues that the law violates the U.S. Constitution’s guarantees of equal protection and due process as well as the Affordable Care Act’s Section 1557, which bans sex discrimination in health care, the suit asserts.
“Our legal challenge is limited to the provisions of Tennessee’s ban targeting hormone therapies — such as hormone replacement therapy and puberty blockers — and does not implicate surgical care,” the ACLU explains on its website, as genital surgery is almost never performed on minors.
“Tennessee’s ban, like every other passed by politicians in recent years, specifically permits these same hormone medications when they are provided in a way that Tennessee considers ‘consistent’ with a person’s sex designated at birth,” the ACLU continues. “This means, for example, a doctor could prescribe estrogen to a cisgender teenage girl for any clinical diagnosis but could not do the same for a transgender girl diagnosed with gender dysphoria.”
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The oral arguments before the high court in December highlighted a sharp divide between the court’s liberal justices, who appeared sympathetic to the challenges faced by transgender youth, and its conservative majority, which expressed skepticism about overturning the law. Notably, Justice Neil Gorsuch — who authored the landmark Bostock v. Clayton County opinion that held transgender people cannot be discriminated against in employment — did not ask a single question during the hours-long session. However, LGBTQ+ groups have expressed cautious optimism that the court will strike the ban down.
A decision will probably not come down until the end of the court's term in June.
