The Trump administration on Friday notified the Supreme Court that, in its view, a Tennessee law banning the use of puberty blockers and hormone therapy for transgender minors does not violate the Constitution’s guarantee of equal protection. But although that position is a change from the one advanced by the Biden administration when the justices heard oral argument in a challenge to the law in December, the Trump administration nonetheless urged the Supreme Court to go ahead and decide the dispute.
The lawsuit now before the court was originally filed by three transgender teens and their parents against the state officials responsible for enforcing the ban. They argued that the law, known as SB1, violates the Constitution because it prohibits doctors from prescribing puberty blockers and hormone therapy to affirm the gender identity of transgender teens but allows the use of the same treatments for other purposes.
The Biden administration joined the case, relying on a federal law that allows it to do so in cases involving equal protection “if the Attorney General certifies that the case is of general public importance.”
After a divided U.S. Court of Appeals for the 6th Circuit upheld the ban, both the Biden administration and the families came to the Supreme Court, asking the justices to weigh in. The justices granted only the Biden administration’s petition for review – which focused on the equal protection question – but a lawyer for the families also argued on their behalf on Dec. 4.
There has generally been a longstanding tradition that, even after a change from a Democratic administration to a Republican one or vice versa, the federal government maintains the same legal position in cases already before the court on the merits. However, in both the first Trump administration and the Biden administration, the office of the U.S. solicitor general – the government’s top lawyer in the Supreme Court – departed from that practice, reversing course in several cases before the court.
The letter from Deputy Solicitor General Curtis Gannon, notifying the justices that “the government’s previously stated views” in the Tennessee case “no longer represent the United States’ position” did not come entirely as a surprise. On Jan. 28, President Donald Trump issued an executive order restricting gender-affirming care for transgender people under the age of 19. (Gannon indicated that Acting Solicitor General Sarah Harris was recused from the case, presumably because her husband, Jeffrey Harris, was among the lawyers representing Tennessee Attorney General Jonathan Skrmetti in the case.)
The Department of Justice, Gannon continued, “has now determined that SB1 does not deny equal protection,” and it “would not have intervened to challenge” the law — “let alone sought” Supreme Court review of the 6th Circuit’s decision upholding the law.
But the case nonetheless should not be dismissed, Gannon contended, because the justices’ “prompt resolution of” the equal protection question “will bear on many cases pending in the lower courts.” And the families remain on the opposite side of the dispute from the state officials, Gannon noted, so there is still a live controversy. Therefore, he concluded, the Supreme Court can decide the equal protection issue without having to grant the families’ petition for review or seeking “further, likely duplicative briefing from the same parties about the same court of appeals judgment in the underlying suit between the private plaintiffs and the state respondents.”
A decision in the case is expected by summer.
This post is also published on SCOTUSblog.
