Showing posts with label Transgender treatment. Show all posts
Showing posts with label Transgender treatment. Show all posts

Friday, July 11, 2025

New England Journal of Medicine: How the Supreme Court Got the Tennessee Transgender Case Wrong

In an analysis piece posted on the NEJM website, law professor Scott Skinner-Thompson criticizes SCOTUS's recent opinion in the Skrmetti case (https://www.supremecourt.gov/opinions/24pdf/23-477_2cp3.pdf). In this case, the Court upheld Tennessee's ban on "the use of certain medical procedures for treating transgender minors." In particular, the law prohibits a healthcare provider from

"[s]urgically removing, modifying, altering, or entering into tissues, cavities, or organs of a human being,” or “[p]rescribing, administering, or dispensing any puberty blocker or hormone,” for the purpose of (1) “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex,” or (2) “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity” (citations omitted). 

The author starts -- as did Chief Justice Roberts in his opinion for the majority -- with a brief recitation of the misery and suffering the Tennessee ban virtually guarantees. That, of course, is not enough of a reason to strike down a state statute, even one as cruel and misguided as Tennessee's -- not to mention the similar laws in 20 additional states.

The fate of the plaintiffs' challenge to the Tennessee statute turns, as is so often the case, on the lawyerly notion of standard of review. The phrase refers to the lens through which challenged statutes are viewed and required different levels of justification from the government when its law is challenged on Equal Protection of Due Process grounds (among others). At one end of the spectrum is "rational basis" review. The question for a reviewing court is two-fold: (1) is there any conceivable governmental interest -- whether it was considered by the enacting legislature or not -- that is furthered by the law, and (2) is the law reasonably related to that interest. Sound like a slam-dunk for the state? It almost always is. The last time I looked, only five laws have ever flunked the rational-basis test (though, like nearly everything else in Constitutional Law, that number is debated). Most laws get this extremely low level of judicial review, so when the Court chooses that standard of review, it's usually lights out for the challenger.

There are, however, a couple of higher standards of review -- "intermediate scrutiny" and "strict scrutiny." Strict scrutiny is exceedingly difficult for the government to satisfy; the late Stanford law prof Gerald Gunther described it as "strict in theory, fatal in fact." (That was surely an overstatement; historically governments have enjoyed a non-zero success rate in such cases of 30%.) 

Discrimination on the basis of sex, however, requires the government to justify its law under the more forgiving review standard of "intermediate scrutiny" (sometimes referred to as "heightened scrutiny" or "rational basis with teeth"). To succeed under this standard, the government must prove that it is pursuing an important governmental interest and that the law in question is substantially related to that important governmental interest.

So the controlling question in Skrmetti came down to this: Was the Tennessee legislature's ban on most treatments for transgender minors a distinction based upon sex. If yes, intermediate scrutiny would be triggered, making it materially more difficult for the state to get a favorable ruling The Sixth Circuit Court of Appeals said the ban did not implicate sex and upheld the statute under rational basis review. The Supreme Court agreed with the Sixth Circuit and affirmed.

The result at first (and second and third) blush is surprising. As the quotes from the law at the top of this post show, the law is riddled with references to "sex." The majority justices tied themselves into knots in their effort to avoid that characterization, concluding (in the words of Chief Justice Roberts) that the law "prohibits healthcare providers from administering puberty blockers or hormones to minors for certain medical uses, regardless of a minor’s sex." If the law doesn't discriminate on the basis of sex, rational basis review applies and, as usual, the law easily passes the lowest level of review.

Prof. Skinner-Thompson argues that this conclusion is based on two logical errors. First, he relies on an argument made by Justice Sotomayor in dissent:

[A]s Justice Sonia Sotomayor points out in her dissent, the excluded medical purpose is defined with reference to a person’s sex: “Key to whether a minor may receive puberty blockers or hormones is whether the treatment facilitates the ‘medical purpose’ of helping the minor live or appear ‘inconsistent with’ the minor’s sex. That is why changing a patient’s sex yields different outcomes” under the statute.

Skinner-Thompson's second argument concerns transgender discrimination:

The majority concludes that the statute does not exclude people on the basis of transgender status but instead “removes one set of diagnoses — gender dysphoria, gender identity disorder, and gender incongruence — from the range of treatable conditions.”

This interpretation is plainly wrong; the statute specifically excludes minors who “identify with” a gender inconsistent with their sex assigned at birth from receiving the relevant treatments. Even Justice Samuel Alito in his concurrence notes that “a strong argument” exists that the statute imposes a classification on the basis of transgender identity. But he, like Justices Amy Coney Barrett and Clarence Thomas, would conclude that drawing lines on the basis of transgender identity does not trigger heightened scrutiny — a question that the majority opinion avoids. 

The Court's opinion in Skrmetti offers a green light to all state legislators who are itching to deny appropriate medical treatment for transgender youth. The majority does what it can to conjure up medical doubt about these medical treatments, but the Tennessee law was opposed by a dizzying array of relevant medical associations. See Brief of Amici at p. 13 et seq. Their brief begins:

The [Tennessee law] prohibits healthcare providers from providing patients under the age of 18 with critical, medically necessary, evidence-based care for gender dysphoria. Denying such evidence-based medical care to adolescents who meet the requisite medical criteria puts them at risk of significant harm. Below, amici provide the Court with an accurate description of the relevant treatment guidelines and summarize the scientific evidence supporting the genderaffirming medical care for adolescents that is prohibited by [Tennessee]. (footnotes omitted; emphasis added)

To which six justices of the Supreme Court said "Meh."  

Monday, October 21, 2024

Texas AG Sues Pediatrician for Providing Gender-Affirming Treatment

Last week Texas Attorney General Ken Paxton sued Dr. May Lau, a Dallas pediatrician and assistant professor at UT-Southwestern Medical School, for violating Texas's statutory ban on gender-affirming care for persons under the age of 18. Here are some helpful links, ending with links to a relevant U.S. Supreme Court case that will be argued in December:

1. A few newspapers have picked up this story (WaPo, NY Times, Dallas Morning News), all behind a paywall except for this one: The Texas Tribune (Oct. 17, 2024). There is also free coverage from NBC News, CNN, and KERA News (NPR affiliate in Dallas).

2. The AG's complaint is on his official website here. The essence of the complaint is:
a. Dr. Lau provided gender-affirming care to a minor, and
b. She misrepresented the nature of her treatment, allegedly (1) to cover up the medical rationale for testosterone therapy and (2) to secure insurance coverage for the treatments.

 3. The Texas law that provides the basis for the AG's lawsuit is HB 14 (eff. September 1, 2023). It is codified in various places in the Texas Code, e.g.:

a. § 62.151, Health and Safety Code: (g)  The child health plan may not provide coverage for services prohibited by Section 161.702 that are intended to transition a child's biological sex as determined by the child's sex organs, chromosomes, and endogenous profiles. 

b. § 161.702, Health and Safety Code: PROHIBITED PROVISION OF GENDER TRANSITIONING OR GENDER REASSIGNMENT PROCEDURES AND TREATMENTS TO CERTAIN CHILDREN. For the purpose of transitioning a child's biological sex as determined by the sex organs, chromosomes, and endogenous profiles of the child or affirming the child's perception of the child's sex if that perception is inconsistent with the child's biological sex, a physician or health care provider may not knowingly:

               (1)  perform a surgery that sterilizes the child,

  including:

                     (A)  castration;

                     (B)  vasectomy;

                     (C)  hysterectomy;

                     (D)  oophorectomy;

                     (E)  metoidioplasty;

                     (F)  orchiectomy;

                     (G)  penectomy;

                     (H)  phalloplasty; and

                     (I)  vaginoplasty;

               (2)  perform a mastectomy;

               (3)  provide, prescribe, administer, or dispense any of the following prescription drugs that induce transient or permanent infertility:

                     (A)  puberty suppression or blocking prescription drugs to stop or delay normal puberty;

                     (B)  supraphysiologic doses of testosterone to females; or

                     (C)  supraphysiologic doses of estrogen to males; or

               (4)  remove any otherwise healthy or non-diseased body part or tissue. 

c. Sec. 161.704.  PROHIBITED USE OF PUBLIC MONEY.***

d. Sec. 161.705.  PROHIBITED STATE HEALTH PLAN REIMBURSEMENT.***

e.   Sec. 161.706.  ATTORNEY GENERAL ENFORCEMENT. (a) If the attorney general has reason to believe that a person is committing, has committed, or is about to commit a violation of Section 161.702, the attorney general may bring an action to enforce this subchapter to restrain or enjoin the person from committing, continuing to commit, or repeating the violation.***

4. In Texas v. Loe (No. 23-0697, June 28, 2024) the Texas Supreme Court reversed the trial court's preliminary injunction against enforcement of HB 14, concluding:

The trial court concluded that the law likely violates the Texas Constitution, and it temporarily enjoined the law’s enforcement. On direct appeal of the temporary injunction, we do not attempt to identify the most appropriate treatment for a child suffering from gender dysphoria.  That is a complicated question hotly debated by medical experts and policy makers throughout this country and the world.  And, to be sure, neither this Court nor any party to this proceeding suggests that children suffering from gender dysphoria are undeserving of treatment and support.  The reverse is obviously true: they, like all children, deserve the most appropriate treatment together with support, love, and empathy.  We emphasize, though, that the only question we are called upon to answer is a distinctly legal one: whether plaintiffs in this case have established a probable right to relief on their claims that the Legislature’s prohibition of certain treatments for children suffering from gender dysphoria violates the Texas Constitution. 

We conclude that plaintiffs failed to meet that burden.  We have said—and we reaffirm today—that fit parents have a fundamental interest in directing the care, custody, and control of their children free from government interference.  But we have never defined the source or precise scope of this interest, and our precedents make clear that this interest is not absolute.  Indeed, we have never held that a fit parent’s interest in caring for her child free from government interference, though weighty, triggers heightened scrutiny of every statute that restricts any asserted right connected to that interest.  When developments in our society raise new and previously unconsidered questions about the appropriate line between parental autonomy on the one hand and the Legislature’s authority to regulate the practice of medicine on the other, our Constitution does not render the Legislature powerless to provide answers. 

For the reasons explained below, we conclude the Legislature made a permissible, rational policy choice to limit the types of available medical procedures for children, particularly in light of the relative nascency of both gender dysphoria and its various modes of treatment and the Legislature’s express constitutional authority to regulate the practice of medicine.  We therefore conclude the statute does not unconstitutionally deprive parents of their rights or physicians or health care providers of an alleged property right in their medical licenses or claimed right to occupational freedom.  We also conclude the law does not unconstitutionally deny or abridge equality under the law because of sex or any other characteristic asserted by plaintiffs.  We therefore reverse and vacate the trial court’s order (footnote deleted and emphasis added).

  5. In the United States Supreme Court, a very similar Tennessee law will be debated in December. Tenn. SB 1 (eff. July 1, 2023) codified as Tenn. Code § 68-33-103) broadly prohibits medical or surgical treatments for minors with gender dysphoria. A similar law was enacted in Kentucky. Two district courts granted preliminary injunctions to block enforcement of the laws while challenges were being considered in their courts. On appeal from those decisions, the Sixth Circuit -- in a wide-ranging opinion -- reversed the two district courts, concluding that all the usual factors related to injunctions -- including the likelihood of prevailing on the merits of the challenge -- favored denial of the challengers' motions. See L.W. v. Skrmetti (6th Cir., Nos. 23-5600 and 23-5609, Sept. 28, 2023). The challenge in the Supreme Court is limited to the issue presented by the petition for certiorari: "Whether Tennessee Senate Bill 1 (SB1), which prohibits all medical treatments intended to allow 'a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex' or to treat 'purported discomfort or distress from a discordance between the  minor’s sex and asserted identity,' Tenn. Code Ann.  § 68-33-103(a)(1), violates the Equal Protection Clause of the Fourteenth Amendment" (emphasis added). 

6. According to the 6th Circuit, 35 states have legislated on this subject, with 21 states prohibiting medical or surgical treatments (or both) and 14 states passing laws protecting patients who seeks such treatment. 

7. My old firm, Covington & Burling, filed an amicus brief in support of the challengers and urging reversal of the 6th Circuit on behalf of the American Academy of Pediatrics, the American Medical Association, and 23 additional medical and health care associations and societies. Additional amicus briefs in support of the challengers were filed by the American Psychological Association and the American Bar Association and literally scores of other amici including many in support of the Commonwealth of Kentucky.