The Tennessee law at issue in the case argued before the Supreme Court on Wednesday is known as United States v. Skrmetti, and governs gender transition treatments for minors.
Legal scholars and advocates on both sides of the case say it could more broadly shape what it means to be transgender in the United States, setting a precedent for several state law challenges already underway regarding sports participation, bathroom use and health care for adults.
A decision in the case, experts say, also could affect any national legislation that may emerge from the new Republican-controlled Congress.
“The Supreme Court could say, ‘This only applies to health care for minors,’ but why?” said Jessica Clarke, a law professor at the University of Southern California who co-wrote a brief in support of the Biden administration’s side of the case, challenging a Tennessee ban on transition treatments for minors.
Jim Campbell, chief counsel for Alliance Defending Freedom, a conservative legal group that filed a brief in support of Tennessee, said he expected that the court’s opinion in Skrmetti would dictate the outcome of challenges to state policies that deny coverage for gender transition procedures for Medicaid recipients or employees on state health insurance plans.
“How it affects the bathroom issues, sports issues — I don’t think it’s like a one-for-one that necessarily what the court does here, it’s going to do in those cases,” Mr. Campbell said, “but I do think it’s going to significantly influence them.”
The central dispute in the case revolves around whether a Tennessee law banning several forms of medical care for transgender youth makes distinctions on the basis of sex. If the Supreme Court finds that it does, then laws in over a dozen states that prohibit transgender students from using bathrooms and participating on sports teams that align with their gender identity might not withstand constitutional challenges — or would at least require a higher level of justification to do so.
In its court briefings, Tennessee argues that the law does not make such distinctions because the ban on transition treatment is applied to both boys and girls. The plaintiffs say that it does because the ban is selective by sex: It allows minors to use these medical treatments, but only if they’re not using them for gender transition. For example, they said, testosterone may be prescribed for teens identified as male at birth, but not for those identified as female.
Tennessee’s response, if accepted by the justices, could have far-reaching effect, legal scholars said. The state argues that biological justifications for the bans are not the kind of sex stereotypes the court struck down in its 1996 landmark decision in the case United States v. Virginia. In that case, the Supreme Court found that Virginia’s reason for excluding women from the Virginia Military Institute, which only male students could attend at the time, was an unconstitutional sex stereotype.
But that is not the same, Tennessee argues, as drawing a distinction between the hormone therapies available to adolescent girls and boys, who typically have different levels of testosterone and estrogen. The state cites Justice Samuel A. Alito Jr.’s observation in the Dobbs v. Jackson Women’s Health Organization opinion that regulating abortion is not a form of sex discrimination because only women can get abortions.
“Saying that a woman shouldn’t hold a specific job because she’s ill-fitted to do it, that’s a stereotype,” said Mr. Campbell. “Saying that a woman produces a higher level of estrogen than a man does is not a stereotype. That’s just a biological difference.”
But according to Courtney Cahill, a constitutional law professor at the University of California, Irvine, the Supreme Court’s ruling in the Virginia Military Institute case actually supports the plaintiffs’ position in the Tennessee case, because the state’s argument for excluding women from admission was also rooted in biological differences between the sexes.
“I can see it leading to a big step back for women and L.G.B.T.Q. people,” Ms. Cahill said, “if biology is allowed to act as a constraint on sex discrimination.”
Still, James Blumstein, a law professor at Vanderbilt University who submitted a brief on behalf of Tennessee, said he thought a ruling for the state could be construed far more narrowly. The state, he said, has an interest in protecting the health of minors, including from their parents and doctors. But in his mind, a ruling in the case on those grounds would have no bearing on sports, bathrooms or adults.
“It seems quite wide of the mark to attempt to fit these categorizations into a sex-based discrimination context,” he wrote.
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