S6, Ep. 06: Oral arguments in U.S. v. Skrmetti: Medical care for transgender youth and the Equal Protection Clause

A Supreme Court case on medical care for transgender youth could have major ramifications — not only for children who have gender dysphoria and their families but also for how other statutes are reviewed under the Equal Protection Clause. In this episode, Amanda and Holly examine the oral arguments in U.S. v. Skrmetti, breaking down key moments in the heated courtroom exchanges, examining the specific constitutional question in this case, and discussing the broader implications of the possible ruling. While the specific question in this case involves the Equal Protection Clause of the Fourteenth Amendment and not the Religion Clauses of the First Amendment, religion and religious arguments often loom large in cases that involve sexual orientation or gender identity. 

SHOW NOTES
Segment 1 (starting at 00:38): The stakes of Skrmetti and the specific question presented

For more on the atmosphere surrounding the case, read this piece from Mark Walsh for SCOTUSblog: Inside the Supreme Court arguments on transgender care

Visit the website of the National Archives for more information on the Equal Protection Clause of the Fourteenth Amendment. 

 

Segment 2 (starting at 07:17): The heated oral arguments

The U.S. Supreme Court heard U.S. v. Skrmetti on Dec. 4, 2024. The Supreme Court’s website has links to listen to the oral arguments or read a transcript of the arguments.

We played four clips from the courtroom:

• The opening argument of Elizabeth Prelogar, Solicitor General of the United States (from 00:00:10 in the oral argument)
• A question and statement from Justice Ketanji Brown Jackson (from 01:41:25 in the oral argument)
• The opening argument of Matthew Rice, Solicitor General for the state of Tennessee (from at 01:45:26 in the oral argument)
• An exchange between Matthew Rice and Justice Ketanji Brown Jackson (from 02:10:17 in the oral argument)

Holly mentioned the Bostock v. Clayton County decision from 2020, which interpreted Title VII of the Civil Rights Act of 1964 to prohibit employment discrimination based on sexual orientation or gender identity. Holly and Amanda discussed the decision in episode 17 of season 1, titled “A landmark case for LGTBQ rights: What’s next for religious liberty?”

Segment 3 (starting 39:57): Thank you to our listeners 

Our most-listened to episode in 2024 was episode 21 of season 5, titled “But … is it Christian nationalism?”

 Respecting Religion is made possible by BJC’s generous donors. Your gift to BJC is tax-deductible, and you can support these conversations with a gift to BJC.

 

Transcript: Season 6, Episode 06: Oral arguments in U.S. v. Skrmetti: Medical care for transgender youth and the Equal Protection Clause (some parts of this transcript have been edited for clarity) 

MR. RICE: (audio clip) So we disagree with the notion —

JUSTICE JACKSON: (audio clip) Didn’t we already dispose of that kind of reasoning with our Equal Protection cases that looked at things like interracial marriage where we said, even though it applies to both, it’s still making a racial classification?

 

Segment 1: The stakes of Skrmetti and the specific question presented (starting at 00:38)

AMANDA: Welcome to Respecting Religion, a BJC podcast series where we look at religion, the law, and what’s at stake for faith freedom today. I’m Amanda Tyler, executive director of BJC.

HOLLY: And I’m general counsel Holly Hollman. Today we’re going to talk about a Supreme Court case that the Court heard oral arguments in on Wednesday, December 4, U.S. v. Skrmetti. It involved a challenge to a Tennessee statute that bans particular medical treatments for minors or for minors for particular purposes, and as you’ll hear in this conversation, how you shape the question has big consequences that we’ll discuss.

It’s a really important case for families in Tennessee but also relates to legislation across the country, and it could have wider ramifications for constitutional protections in general, particularly what equal protection means and could affect access to medicine in general.

AMANDA: Well, that’s a really good set-up, Holly, and I’m really glad to be back on Respecting Religion, talking with you about a Supreme Court case. It feels like it’s been a while since we had a case before the Court that intersected with the issues that we care about, though I’ll say at the beginning that, like in several of these cases in recent terms, cases that we care about don’t necessarily involve interpretation of the religion clauses or what one thinks of as a “classical religious liberty legal issue,” but we know that religion and religious arguments are often in the background of cases that are involving sexual orientation or gender identity, and so this is one that we certainly care about.

It also, I think, is considered the big case so far of this U.S. —

HOLLY: So far.

AMANDA: — Supreme Court term. Yes, they’re still accepting cases, so we — that remains in flux, but so far, this is the case that has had the most conversation and, as you point out, possible large ramifications for constitutional jurisprudence.

HOLLY: The case drew not only a lot of news attention but drew a lot of people to the front of the Supreme Court. There were rallies held before the arguments, during the arguments out front. Some of our staff — because the Court’s right down from our headquarters — went over to see what was going on and to stand with those transgender families who were out there saying, Protect our children, and various signs like that, you know, and paying attention to how it was framed for the public, which we know sometimes can be very different from what happens in the courtroom.

We’ll put a link in the show notes to a SCOTUSblog article by Mark Walsh that really did a good job describing the atmospherics of the case, who was there, what was going around it, and why there was so much attention on this case.

AMANDA: Well, and perhaps as we get into the arguments and what’s at stake and what we took from the arguments, perhaps a good place to start is the question presented for the Court to determine. And that question is this one: Whether Tennessee Senate Bill 1, 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” violates the Equal Protection Clause of the Fourteenth Amendment.

HOLLY: And as our listeners know, the question presented is the specific issue that the Court has to decide. So as we think about this case and what’s at stake, we might see lots of related issues, ideas, problems, but that’s the question that the Court has to decide. The Court specifically does not ask whether this statute violates the religion clauses or some other kind of constitutional right regarding parents or privacy or any other issue.

The Equal Protection Clause comes from the Fourteenth Amendment. A major provision of the Fourteenth Amendment was to grant citizenship to all persons born or naturalized in the United States, thereby granting citizenship to formerly enslaved people. But another important provision was the statement that “nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny any person within its jurisdiction the equal protection of the laws.”

And if you want to see that in writing and learn a little bit more about that, we’ll put a link in the show notes to the National Archives site. But that’s just a reminder of the context in which the Equal Protection Clause was passed.

So the question presented, which is exactly what the Court has to focus on and what they will be asking the advocates about during the oral argument, really just focuses on how to apply this Tennessee statute to the requirements of the Equal Protection Clause.

AMANDA: So in this case, we first hear argument from Solicitor General Elizabeth Prelogar. She is arguing for the United States, which is the petitioner in this case, and in doing so, she is standing with the families in this case, and the families are represented at oral argument by Chase Strangio, who also provides argument.

After Ms. Prelogar and Mr. Strangio, then we hear from Matthew Rice, who is the solicitor general for the state of Tennessee, Skrmetti. In the case title, that is the name of the attorney general of Tennessee, and so Tennessee are the respondents basically in this case.

Some of this is a little complicated, Holly, because of the election, because when the new Trump administration comes in in January, it is widely guessed that the United States is actually going to withdraw from this case, that the United States is going to be on the same side as the state of Tennessee. And so what impact that has on this case and whether the families can then stand back in in that place that is adverse to the state of Tennessee I think remains to be seen.

And then one other, I think, very important thing of note here is that Chase Strangio, who did do the argument on behalf of the families, is the first openly transgender person to argue before the Supreme Court, so it was a historic argument for that as well.

 

 

Segment 2: The heated oral arguments (starting at 07:17)

HOLLY: So the question is whether the statute is constitutional under the Equal Protection Clause, which the Sixth Circuit had held it was. Here Solicitor General Elizabeth Prelogar is setting up what’s at stake and how the U.S. sees the case. We’re going to play her whole opening statement for context.

SOLICITOR GENERAL PRELOGAR: (audio clip) This case is about access to medications that have been safely prescribed for decades to treat many conditions, including gender dysphoria. But SB1 singles out and bans one particular use. In Tennessee, these medications can’t be prescribed to allow a minor to identify with or live as a gender inconsistent with the minor’s sex.

 

It doesn’t matter what parents decide is best for their children. It doesn’t matter what patients would choose for themselves. And it doesn’t matter if doctors believe this treatment is essential for individual patients. SB1 categorically bans treatment when and only when it’s inconsistent with the patient’s birth sex.

 

Tennessee says that sweeping ban is justified to protect adolescent health, but the state mainly argues that it had no obligation to justify the law and that SB1 should be upheld so long as it’s not wholly irrational. That’s wrong. SB1 regulates by drawing sex-based lines and declares that those lines are designed to encourage minors to appreciate their sex.

 

The law restricts medical care only when provided to induce physical effects inconsistent with birth sex. Someone assigned female at birth can’t receive medication to live as a male, but someone assigned male can. If you change the individual’s sex, it changes the result. That’s a facial sex classification, full stop, and a law like that can’t stand on bare rationality.

 

To be clear, states have leeway to regulate gender-affirming care, but here Tennessee made no attempt to tailor its law to its stated health concerns. Rather than impose measured guard rails, SB1 bans the care outright no matter how critical it is for an individual patient, and that approach is a stark departure from the state’s regulation of pediatric care in all other contexts.

 

SB1 leaves the same medications and many others entirely unrestricted when used for any other purpose, even when those uses present similar risks. The Sixth Circuit never considered whether Tennessee could justify that sex-based line, because the Equal Protection Clause requires more. This Court should remand so that SB1 can be reviewed under the correct standard. I welcome the Court’s questions.

 

HOLLY: Well, Amanda, what do you think?

AMANDA: Well, as usual, I am just so impressed by Elizabeth Prelogar. I think she is one of the clearest advocates that I have heard before the Court. And I think that she does something that’s really strategic in this case.

She’s telling the justices that, one, as she sees it and as she explains here, that this is a really clear case, that there is sex-based classification on the face of this statute and that, therefore, the 6th Circuit just simply used the wrong standard and that this Court doesn’t have to rule this whole statute unconstitutional, but it does need to send it back to the lower court to apply the correct standard in the case.

I think the way that she presents this option to the Court, like she’s argued in many other cases before, provides a really appealing middle ground for these justices should they choose to take it. Now, maybe our listeners won’t be shocked to learn that not all the justices just jumped right on board and said, Sounds good to me.

There was a lot of back and forth here, I think really trying to change the question or change the standard that was really being considered. But I think she did a really good job of setting up a particular path forward for the justices.

How about you, Holly? What did you think about how she framed this argument?

HOLLY: I agree. It was very clear, and you can see on its face why she takes the position she takes, what she thinks the Court should do, and then she was ready for the questions. And as is their custom, they start by seniority, and they got right into it, beginning with Justice Thomas, taking issue with the idea that this is a ban.

Not a ban, he asserted, but a limit. It’s an age classification, he said. And instantly the solicitor general acknowledged that it did have an age limit to it, but says that it’s also about sex, and the fact that it only applies to minors does not protect it from the kind of review that the Court should give it.

AMANDA: And I think on this point, you know, she says, there’s nothing by that reasoning to say that they could not also issue a similar ban that applied to adults, or later in the argument, way at the end when she’s doing her rebuttal, to say that if they don’t accept this reasoning, there’s nothing to limit a national ban on this kind of care, even for minors or adults. And so she’s really saying, it’s very important that the Court hold this line when it comes to what it means if there is a sex-based classification in the law itself.

HOLLY: And I’d say we could fairly characterize the rest of the oral argument as sort of complicating that narrative. First we have Justice Thomas, saying it’s not a ban because it only applies to minors, and he kind of introduces the idea that there could be differences in how these medical treatments work for males and females.

And then Justice Roberts comes in, and he really focuses on that this is a medical issue. And he says that that’s more complicated than the sex-based cases that she presents. By focusing on the medical part of this, Justice Roberts is sort of suggesting that the state has a lot more leeway here, which would sort of avoid that Equal Protection higher standard.

AMANDA: And then Justice Alito joins the party to say, you know, really we have to consider not just what’s happening in the United States, but we have to look around the world. And he starts bringing in some different studies from European countries about the efficacy or the harms of some of the medical treatment for transgender youth and really calling into question in some ways the safety of these procedures themselves.

Where I was really again impressed with the solicitor general here, she didn’t get distracted by these arguments, you know. She first noted that in all of these other countries, unlike in the state of Tennessee, that they still did allow some medical treatment for transgender youth, as opposed to Tennessee, which had an outright ban on the use of drugs in these situations where youth were looking to transition or to identify with the gender identity that they claimed which was different from their sex assigned at birth.

But then she also just kept leading them back to the fact that there still remained the sex-based classification in the law, and that it wasn’t up to this Court to determine the safety or the efficacy of the drugs, that they could just send it back to the Sixth Circuit to look at medical evidence that was relevant in the record down there.

And I thought she did a really nice job of trying to focus the Court again on the question at hand.

HOLLY: By delving into what the studies say, whether here or in Europe or wherever, I think Justice Alito really wants to question the idea that these treatments are medically necessary. And I think it’s sort of playing to people’s passions.

A lot of people of course, don’t know about gender dysphoria. I mean, I learned a lot in this case. And so I think it’s quite common that people that don’t know about what’s needed and about the families who face these medical choices might wonder from the beginning. You know, is this absolutely necessary? Or is this harmful to children?

And his questions sort of got to that, moving away from the very simple question, as you note, Amanda, that this is a sex-based category that then should be judged under the Equal Protection Clause’s higher standard.

AMANDA: Yeah. I felt the same way, Holly. I thought a lot of the questions showed some misinformation or even ignorance about the challenges that are faced by transgender youth and what goes into these difficult medical decisions that families are faced with.

And I think, again, that the question before the Court is not to decide all of these things, but rather to say that there is a heightened need for judicial scrutiny, a heightened need for the state to show that the legislators in this case, the legislators in Tennessee, were not operating out of a sense of misinformation or ignorance when it came to these issues, but rather that they had relied on medical evidence, on studies, on science, in determining and helping to put, as a word that came up several times, guardrails on the process.

I found it really interesting — again, I learned a lot about the state of the law in this by preparing for our conversation and reading through the materials here — but that the state of West Virginia actually has a law on its books that people are putting up as a better way to go about it. Again, it doesn’t offer gender-affirming care in all cases, but that there are guardrails put on that is not a categorical ban as it is in the state of Tennessee and in many other states.

And so I think that that kind of review of the actual science is helpful as we’re thinking about what is the best law for families in Tennessee.

HOLLY: Justice Sotomayor spoke up in a way that also showed a lot of compassion for needing to look at this statute differently, and I couldn’t help but think as she spoke, you know, that we know from her biography that she had childhood diabetes and to know what it’s like to need medical care and to not be able to get it or at least to know the difficulty of that.

I thought she did a really good job of bringing out the importance of this, that doctors and parents and the patients together should be making these decisions and not banning it in all situations. She said, you know, gender dysphoria is sometimes a very serious condition, regardless of all these other cases that others on the Court were pointing to where it could be more questionable. If it harms some families, they need to have access to care.

AMANDA: I also appreciated how in pointing that out, she personalized this case. It’s easy to just start talking about what legal standard applies and judicial review and studies from abroad. She reminded us in that particular segment about the real people whose lives were being impacted by this law, and I appreciated the way that she personalized this case early on in the argument.

HOLLY: Other justices came to it with slightly different angles. Justice Kagan, for instance, asked why this isn’t a case about just discrimination based on transgender identity, because isn’t that likewise a separate category that involves sex. She said that maybe finding sex in this was too formal a category, but it surely involved sex stereotypes. Right? So wouldn’t that also get to the higher level of scrutiny?

AMANDA: Solicitor General really wanted to stay focused on the sex-based discrimination and not speak so particularly about discrimination against transgender people. What did you make of that, Holly? You know, is that just because the law and the legal protections for transgender people are not as developed as legal protections that are based on sex classifications?

HOLLY: I think so. I think that it was just a clearer case for her, to just see on its face that this is more consistent with Equal Protection cases that apply the higher standard. Also mentioning the Bostock case, which is a case that’s not that old, where the Court found in its interpretation of Title VII that prohibits discrimination based on sex in employment, that sex included sexual orientation and gender identity.

So a lot of people thought and I think the solicitor general made the case that you could use that argument to say clearly, this is also based on sex, so to get that higher level of scrutiny.

We also heard later in the argument an interest from Justice Amy Coney Barrett and others, trying to figure out if this was targeted toward transgender people, and I think you’re right, Amanda. It’s just that there is less development of explicit in the law discrimination against transgender people. That’s not to say that they aren’t harmed or treated poorly, as we know.

And there were examples discussed in the case, a couple that were de jure, which is in the law, particularly in the military and something about not allowing people to cross-dress, dress different from expectations of their gender.

But it was interesting. In those conversations, I kept thinking about the current state that we’re in with so many states passing these laws that appear to target transgender people from getting medical care that they need.

I also couldn’t help but think about the aggressive political ads that we saw at the end of the presidential campaign that really focused on the need for transgender people to have medical treatment and whether or not, you know, the public supported that, which to me just kind of drove home this point that whether there are things in the law that discriminate specifically on gender identity, there is certainly harm in the public square against transgender people that clearly do not have political power, which is one of the indicia of a special classification that would receive the higher level of scrutiny.

AMANDA: When you think about the population of transgender people in the United States, it is a very small population, estimated to be less than 1 percent. And so just by virtue of numbers, this is not a group that holds political power.

Simultaneously, as you pointed out, Holly, it’s a group that was really singled out for scapegoating during the political campaign. We saw across the country ad after ad after ad, talking about transgender people in ways that are very dehumanizing, in ways that were blaming them for all kinds of problems, in ways that were singling transgender people out as being othered and a threat to American society.

I think all of these — it felt a little absurd, frankly, for us to be asking the question, Are transgender people discriminated against. I mean, it felt — especially to have this argument just a few weeks after the political campaign that we all just lived through, and so I just sensed kind of this moment where we had a disconnect between what was happening in the Supreme Court courtroom and what we all saw before our eyes across the country.

You noted Bostock a moment ago, Holly. I found it striking that the author of the Bostock decision, Justice Gorsuch, did not ask a question in this oral argument.

HOLLY: I think that was a surprise to most court-watchers. He was very decidedly absent from the questioning here, which is, we know, very unusual for him.

AMANDA: Yes. He’s usually very eager to ask his questions. And so I wonder if he just wasn’t wanting to signal to the public or to his colleagues how he was thinking about the case, or what that was about.

HOLLY: On the other hand, Justice Kavanaugh — or as we sometimes call him and others do, “Coach Kavanaugh,” because we know he is a well-known sports fan and coach of his daughter’s basketball team — was ready to participate and, you know, very focused on really getting to the issue: Is this sex-based or medical-based or something else?

But he also brought up whether this case and the position of the SG would constitutionalize trans individuals in women’s sports, noting that that is one area of a lot of public concern that we hear about. And she was quick to note that sex categories are already recognized in private spaces and get the kind of intermediate scrutiny that she was talking about. So she said, courts have split on these issues, but that it raises separate questions and separate state interests than the case before them dealing with medical care.

AMANDA: I thought it was a really strong response from her, because she was on the one hand pointing out, look, these other laws are absolutely sex-based classifications, but just because it’s a sex-based classification that’s entitled to heightened scrutiny does not mean in those cases the transgender person looking to play on a sports team automatically wins. It just provides the framework for the Court to consider it, and it requires the state to show the compelling government interest that’s at stake.

That’s all they’re asking for in this case, too. And so I thought that was a good way of her trying to make kind of an apples-to-apples comparison, while at the same time saying, just because you rule here doesn’t mean that transgender people will automatically be playing on every sports team in the United States, that those are separate laws or separate regulations that will need to be analyzed in different cases.

HOLLY: That’s right. You have to get to what is the state’s interest here and what are the harms of the law as written or what are the harms that it’s trying to prevent.

When Mr. Strangio approached, he again was very clear, saying that he just was asking the Court to remand the case down to the 6th Circuit and apply strict scrutiny. He clarified that his position was consistent with the solicitor general and, by the way, was impressive as an advocate as well, Amanda, in that he took care of a concern from Justice Roberts right away.

Justice Roberts had sort of suggested that, in this field of medicine relating to gender dysphoria, there’s a lot of developing information and that we still don’t know a lot and should we wait and shouldn’t we just err, I guess, on the side of caution by not allowing some of these treatments.

And I thought that Mr. Strangio did a good job sort of turning that back on its head and saying that the Court could apply a higher level of scrutiny, even in a case where the medical situation was evolving. He did that by reminding the chief justice of the COVID cases, where the Court did continue to apply the higher standard, even though at the time, you know, there was a lot that we didn’t know and that the medical profession did not know about COVID.

Justice Jackson really shows the concern about going the way that Chief Justice Roberts was sort of leaning, about making this a medical case and trying to escape the Equal Protection Clause’s higher standard. And she really breaks down what is expected under the law.

AMANDA: We’ll hear in this clip that she’s referring in part to questions that she had asked earlier in the argument, drawing some parallels to an earlier Court’s decision in the case of Loving v. Virginia, which was also an Equal Protection Clause case but in that case, based on a race-based classification.

 

JUSTICE JACKSON: (audio clip) So I guess I’m suddenly quite worried about the role of the Court questions and the constitutional allocation of authority concerns, because I understood that it was bedrock in the Equal Protection framework that there was a constitutional issue in any situation in which the legislature is drawing lines on the basis of a suspect classification, that it’s a constitutional question that is being raised when that is happening as a threshold matter, and then you may get into why is it happening, what is the justification.

 

And you’ve said here at the podium today that the different levels of scrutiny account for how strong the government’s evidence has to be for doing that, and we really — the Court really holds them to it in certain — in a heightened scrutiny scenario.

 

But the kind of initial issue is that a law is drawing lines on the basis of some suspect classification. Is that — does that accord with your understanding of what we normally do? And that’s a question for the Court, because it’s a constitutional question: Is the statute doing this? Right?

 

SOLICITOR GENERAL PRELOGAR: (audio clip) Yes. I completely agree with that, Justice Jackson. That’s precisely why we think heightened scrutiny applies here, because this is a statute that on its face draws —

 

JUSTICE JACKSON: (audio clip) And to answer the question, Is this statute doing this, I understood that we had a sort of two-step framework for looking at it, that we don’t just kind of launch into an assessment of the evidence or what the state is — why the state is saying that they’re doing this or the scientific basis for it, that we’re looking at something else when we’re trying to determine, is a classification being made. Right?

 

SOLICITOR GENERAL PRELOGAR: (audio clip) Yes.

 

JUSTICE JACKSON: (audio clip) And I guess my real concern — and maybe I’ll just ask you to react to my Loving parallel, because I’m getting kind of nervous — is that in Loving, those same kinds of scientific arguments were made. So I’m reading here where the Court says, the argument is that if the Equal Protection Clause does not outlaw miscegenation statutes because of their reliance on racial classifications, the question of constitutionality would thus become whether there was any rational basis for a state to treat interracial marriages differently from other marriages.

 

On this question, the state argues, the scientific evidence is substantially in doubt and consequently, the Court should defer to the wisdom of the state legislature in adopting its policy of discouraging interracial marriages. And so for me, this kind of idea that the way we look at it is not, first, are you drawing these classifications and then, state, give us your evidence so we can make sure that there’s a proper fit.

 

If, instead, we’re just sort of doing what the state is encouraging here in Loving, where you just sort of say, well, there are lots of good reasons for this policy and who are we as the Court to say otherwise, I’m worried that we’re undermining the foundations of some of our bedrock Equal Protection cases.

 

HOLLY: And with that, it was time for the Court to then hear from the state of Tennessee, Mr. Rice.

AMANDA: And in the very first paragraph of his opening statement, he made clear that his argument for the Court was entirely different from the solicitor general’s and Mr. Strangio’s.

 

MR RICE: (audio clip) Tennessee lawmakers enacted SB1 to protect minors from risky, unproven medical interventions. The law imposes an across-the-board rule that allows the use of drugs and surgeries for some medical purposes but not for others. Its application turns entirely on medical purpose, not a patient’s sex. That is not sex discrimination.

 

HOLLY: You know, after that, the oral arguments continued very aggressively. The justices were really engaged, really hammering home this question of, Is this a sex-based category; How would you justify it as a medical category.

We heard Justice Kagan again, Justice Kavanaugh. Justice Kagan again came to it a little bit differently. She said, Isn’t the purpose of this law to encourage gender conformity? She asked, How does that apply, suggesting that that certainly is a sex-based category, that the state wants little boys to stay little boys and grow into young men and doesn’t allow this kind of treatment, and so that’s what she talks about to try to push the advocate a little bit.

Tennessee, you know, clearly disagrees. It says, That’s not what it does. He actually denied that that purpose language was significant to the case at all and said that that had not been raised below and it really wasn’t about that kind of encouraging sex stereotyping, but instead protecting children at a certain age from making decisions that could harm them.

Justice Kavanaugh came back in and asked, you know, why not trust parents and doctors. And this is where the Court made clear that parental rights were really not before the Court, but you could kind of see that in the background, that maybe that was a way to take down the statute differently. But, of course, that’s not the question the Court decided to review.

It got pretty animated during this argument, but I’d say that Mr. Rice held his ground and just restated his position over and over, just like he said clearly at the beginning. He says, We are not arguing that this is some kind of sex-based line; it’s a purpose-based line. It’s you can’t have this treatment for these purposes. And in his view, that’s enough to take it out of the Equal Protection Clause’s higher standard.

At one point, there was this long, awkward silence, Amanda. As I was listening to it, it just really underscored that, okay, there are two very different ways to see this statute, and there were some, you know, passionate views on either side.

I think it’s worth playing another clip that shows the intensity and the clarity of this difference.

 

JUSTICE JACKSON: (audio clip) Could I just ask you about — I don’t understand at all the similarly situated argument that you make, and I hope that you can help me, because I don’t know how you can say both that girls and boys are not similarly situated at step one when this law is being evaluated and it’s not making a sex-based classification. It seems to me that recognizing their lack of similarity as you do in making the argument is making a sex-based classification, so —

 

MR. RICE: (audio clip) Your Honor, I think our position is that if you’re in the point where we’re treating giving testosterone to a boy with a biological deficiency as the same thing as giving testosterone to a biological — healthy biological girl who wants to transition, then there has to be some threshold inquiry that recognizes the biological differences between those two —

 

JUSTICE JACKSON: (audio clip) Right, but when you’re doing that, you’re making a sex-based classification. I mean, the very argument carries with it the characterization that we’re trying to identify here. You start by saying, It’s different to treat a boy who’s using this medication for a particular reason from a girl who’s — okay. So that’s a sex-based classification. Haven’t we dealt with step one? Now we should be going on to step two. Intermediate scrutiny applies by the terms of what you’re arguing.

 

MR. RICE: (audio clip) I don’t think that we agree that we’ve checked the box at step one, because there is no medical treatment that boys can receive that girls cannot. So we disagree with the notion —

 

JUSTICE JACKSON: (audio clip) Didn’t we already dispose of that kind of reasoning with our Equal Protection cases that looked at things like interracial marriage where we said, Even though it applies to both, it’s still making a racial classification? Even though whites can’t marry non-whites and non-whites can’t marry whites in the statute — right? — so both are equally disadvantaged, we said. That’s not an argument for why you shouldn’t have a heightened scrutiny or why the statute is not making a race-based classification.

 

MR. RICE: (audio clip) And that’s not the argument that we’re making, Your Honor.

 

JUSTICE JACKSON: (audio clip) Okay. So what is —

 

MR. RICE: (audio clip) We are not arguing that you can discriminate and draw lines, so long as you do so both against boys and against girls. We’re arguing there is no sex-based line. If you’re a boy and you go in to get puberty blockers, you can get the puberty blockers if you’re going to use them for precocious puberty. You cannot get the puberty blockers if you’re going to use them to transition. That is not a sex-based line. That is a purpose-based line.

 

So our fundamental point here is not that you can discriminate against both sexes in equal degree. Our fundamental point is there is no sex-based line here, and the only way to get to a sex-based line is by equating fundamentally different treatments that defy medical reality and defy how the statute itself sets out what is a treatment.

 

JUSTICE JACKSON: (audio clip) And the treatments are different because of the biological sex of the person. Right? I mean, that’s what you’ve said. The purposes are different, because of the biological sex and why you’re going in to get them.

 

MR. RICE: (audio clip) Not at all. I mean, with puberty blockers, the purpose — nothing turns on sex puberty blockers. There’s nothing that turns on sex as to whether there is a sex-based classification there. Everything depends on what is the reason that you are using those puberty blockers for.

 

AMANDA: I think that exchange shows that there are fundamentally different ways to look at this case, that we’ve got the state of Tennessee’s argument that is really directly opposed to what the U.S. government’s saying, and we can’t really count all the heads here, because not all of the justices participated in questioning at the oral argument.

But I can definitely see that we see the more liberal justices really seeming to see a sex-based classification here. Some of the most conservative justices, particularly Justice Alito really leaning on the medical arguments, and not really sure kind of where some of these other justices are going to come down in the end.

HOLLY: And the solicitor general came back up with her rebuttal again really sharp, said, Don’t be distracted by the idea that this was an off-label use, which was the line of questioning that Justice Barrett pursued, and said that, again, you don’t have to figure it all out; we’re not asking courts to figure it all out.

But this, in this case, the state is being overly inclusive in this ban. It’s not like typical medical regulations, because the legislature’s doing something different. She ends by again emphasizing the real-world consequences of the statute and asking the Court to send it back down, not to let it go by on a rational basis review, but to give it the scrutiny that it deserves.

AMANDA: So at the end of the rebuttal, the chief justice said, as he always does, the case is submitted. And so now what’s going to happen? Well, we noted at the top, there is some uncertainty because we assume that the U.S. government will withdraw from the case. Assuming that this case does go to decision, we probably won’t get a decision in this case until June.

You know, in hearing and reading some of the experts in the case, they felt like this is likely to be a 6-3 decision, with the Court’s conservative super majority ruling with the state of Tennessee, but we shall see, when and if the case is decided.

 

 

Segment 3: Thank you to our listeners (starting at 39:57)

HOLLY: We are nearing the holiday time. We’ll take a little time off, and we hope you all will, too. But before we go, we want to thank all of you for joining us throughout 2024. I have to say that we enjoyed looking at our Spotify Wrapped last week.

AMANDA: Yeah. For those of you who use Spotify, you’ll know that you get a report around this time that shows you which songs, artists, and podcasts you listen to the most. But on our end, as podcasters, we get to see and learn more about you, our listeners.

HOLLY: We know a lot of you listen on a variety of podcast platforms. We think most of our listeners get to know the show on Apple Podcasts, but on Spotify alone this year, we saw a 61 percent growth in our followers, so thank you, and welcome to all of you who joined us on Spotify new this year.

AMANDA: We also got to know a little bit about you. For example, it gives us a list of the other podcasts that Respecting Religion listeners also enjoy. The top three were Pods of America, the Bulwark, and the Daily.

HOLLY: And our top episode this calendar year on Spotify was back in March. It is our podcast titled, “But…is it Christian nationalism?”.

AMANDA: And before we wrap today, Holly, we just want to take a moment to thank all of you for joining us for all of these conversations.

HOLLY: We’ve been doing this podcast since 2020, starting right before the pandemic, and we are grateful for this space to come together and explore so many different issues and perspectives.

During that first season, we ended up reacting to a lot of things going on during the early days of the COVID pandemic, as well as continuing — and often concerning — moves from the Trump administration.

AMANDA: And now, as we approach 2025, we don’t know exactly what our conversations will entail, but we will be here to respond to anything that comes our way next year, be it from the new administration, the Supreme Court, or from things happening in local communities across the country.

HOLLY: We’re grateful for the people who make this podcast possible, for those who work on the staff of BJC and the generous donors who support our work in all areas.

AMANDA: And so as you are considering giving to nonprofits before the end of this year, we want to invite you to consider making a gift to ensure this podcast can continue and be available to everyone for free. There’s a link in our show notes where you can give. If you use that link, our team will know that your gift came from listening to this podcast. We are so grateful for your support as we continue to ensure faith freedom for all, promoting dignity and pluralism together.

HOLLY: And that brings us to the close of this episode of Respecting Religion. Thanks for joining us. For more information on what we discussed, visit our website at RespectingReligion.org for show notes and a transcript of this program.

AMANDA: Respecting Religion is produced and edited by Cherilyn Guy. Research assistance for today’s show was provide by Sarah Guerry.

HOLLY: Learn more about our work at BJC defending faith freedom for all by visiting our website at BJConline.org.

AMANDA: And we’d love to hear from you. You can send both of us an email by writing to [email protected]. We’re also on social media @BJContheHill, and you can follow me on X and now also on Bluesky @AmandaTylerBJC.

HOLLY: If you enjoyed this show, share it with others, and take a moment to leave us a review or a five star rating to help more people find us.

AMANDA: We also want to thank you for supporting this podcast. You can donate to these conversations by visiting the link in our show notes.

HOLLY: We’ll be back in January, so join us on Thursdays for new conversations Respecting Religion.

AMANDA: Happy holidays and happy new year!