ACLU takes juvenile transgender laws to Supreme Court

Lawyers in Tennessee are pushing the Supreme Court to weigh in on the national debate about transgenderism in children. Earlier this month, American Civil Liberties Union lawyers asked the justices to rule on a Tennessee law that shields minors from procedures that alter their sex characteristics. Attorneys in Kentucky said they also planned to appeal to the Supreme Court over a similar state law.

If the Supreme Court takes up the petition, it could affect state laws in nearly half the country. Currently, 22 states have passed legislation protecting minors from puberty-blocking medication, cross-sex hormones, and cosmetic sex surgery until age 18, though judges have temporarily stopped some of the laws from going into effect.

According to the petition, the ACLU argues that the states are barring children from these interventions because they identify as transgender, which they say is discrimination based on gender identity. One of their clients, a 16-year-old girl referred to as Ryan Roe, says she was so distressed about her female voice and changing body that she stopped speaking and would vomit every morning before school. Doctors diagnosed Roe with gender dysphoria. Once the teen began taking anti-anxiety medication and testosterone, Roe’s parents said her mood improved and she now “cannot imagine life without [the medications].”

The ACLU argued that children like Roe are denied testosterone because they’re female, while boys who wish to be girls are denied estrogen. The group says that both actions constitute sex discrimination.

But Jonathan Scruggs, an attorney with Alliance Defending Freedom, argues that medicine should treat men and women differently. “The nature of medicine has to take sex into account,” he said. “You have to treat men and women differently. That’s just common sense.”

In a September opinion upholding the Tennessee law, Judge Jeffrey Sutton of the 6th U.S. Circuit Court of Appeals agreed. “Testosterone transitions a minor from female to male, never the reverse,” he wrote. “That means only females can use testosterone as a transition treatment. These treatments, by biological necessity, are ‘medical procedure[s] that only one sex can undergo.’”

The ACLU argued the state laws violate the rights of parents and interfere with medical decisions that should be decided between doctors, families, and children. “The issue is the who—who gets to decide whether a treatment otherwise available to an adult is right or wrong for a child,” the group argues in its petition, saying that parents and doctors, not the state, should decide.

But Randall Wenger, chief counsel of the Independence Law Center in Harrisburg, Pa., argues that states are within their rights to make certain drugs and procedures off-limits for minors. States already restrict minors from substances like alcohol and marijuana, for example. He said the same should also apply to transgender procedures, which can involve irreversible surgeries and medication with serious side effects.

“They’re stepping in, doing what states often do, which is limiting human choice, of course, but limiting human choice in a way that’s intended to to help society,” Wenger said.

Erin Friday, a parent of a child who once identified as transgender, agrees that legislators and judges should have the final say on this issue. “Normally, I would not recommend that lawyers and courts make medical decisions, but we are not living in normal times,” she said. “When medical societies cannot even state that humans are a sexual dimorphic species, we need the courts to intervene.”

Both Wenger and Scruggs agree that states are not violating the U.S. Constitution when they make these laws. “Parents don’t have the right to access dangerous medical care for children,” Scruggs said.

Last Monday, the Department of Justice sided with the ACLU by filing its own petition asking the Supreme Court to take this case. But even with the Biden administration weighing in, the lawyers I spoke with don’t think the Supreme Court will take the case. And if it did, they doubt the ACLU would prevail.

Wenger noted the court’s tendency to “let things percolate out there for a while” and intervene if lower courts were split. But most of the lower courts have upheld state laws limiting cross-sex medical procedures to people 18 and older. The lone exception is Arkansas, where a federal judge overturned a state law that protected children from sex-change attempts.

The American Medical Association and the American Academy of Pediatrics support medical attempts to change the sex traits of children and oppose laws like Tennessee’s. Researchers in Europe, though, say there’s little definitive proof that such interventions benefit children. A report published in the United Kingdom in September reevaluated a previous study that had claimed cross-sex medicine had no effect on children’s mental health. The new interpretation found that results varied: some youth demonstrated mental health improvement while using puberty-blocking drugs, but more deteriorated. In August, Denmark joined a growing number of European countries curbing its pediatric transgender programs after a Dutch research publication noted “profound uncertainty” about long-term effects in children.

Meanwhile, a growing number of “detransitioners” have raised alarms about the potential harms of transgender medical interventions in general. Last month, a man sued a Boston-based facility for convincing him as an adult that cross-sex hormones and “sex reassignment surgery” would resolve his gender nonconforming behaviors. He now says these procedures only created more problems. He is missing external genitalia and suffers from emotional instability, osteoporosis, scoliosis, and what he calls “mental fog.”

Since the current research has differing conclusions on the long-term effects of changing children’s hormone levels and visible sex traits, Scruggs says it’s prudent for the Supreme Court to wait before making long-lasting legal decisions.

“The science is continually being updated, and more studies are being done to show that these procedures are harmful, that we don’t know the long term effects of a lot of these procedures,” he said. “So why would we try to constitutionalize that debate?”