Analysis: John Roberts leads the charge to uphold bans on trans care

By Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — As Chief Justice John Roberts set the tone for what appears to be a Supreme Court majority to uphold state bans on gender-affirming care, his remarks Wednesday recalled his attitude nearly 10 years ago when the court declared a constitutional right to same-sex marriage.

“Just who do we think we are?” Roberts said in the memorable 2015 dissent, when he similarly argued against judges intervening to protect individual rights.

This time, however, Roberts is likely to seize the majority. Colleagues echoed his sentiment over the gripping two-and-a-half hours of oral argument Wednesday, and he stands poised to control the outcome of this historic test of transgender rights.

While the cases differ significantly – beginning with this new one’s focus on children – the 2015 same-sex marriage dispute (Obergefell v. Hodges) and current transgender rights controversy (US v. Skrmetti) involved challengers arguing that the usual legislative process has failed them, and the court should help vindicate their constitutional rights.

Roberts brushed aside arguments that Tennessee’s ban on gender-affirming care amounted to sex discrimination and said decisions regarding medical treatment were best left to state legislatures.

“We might think that we can do just as good a job with respect to the evidence here as Tennessee or anybody else, but my understanding is that the Constitution leaves that question to the people’s representatives rather than to nine people, none of whom is a doctor,” the chief justice said.

When Roberts previously dissented from the decision declaring a constitutional right to same-sex marriage, he said the five-justice majority had hijacked the democratic process.

“Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law,” he wrote. “Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. … Just who do we think we are?”

The same-sex marriage case marked the first and only time that Roberts, a 2005 appointee of President George W. Bush, took the extraordinary step of reading portions of his dissent from the elevated courtroom bench. Justices on the losing side of a case usually respond only with a written dissenting statement. They escalate to an oral dissent when they are especially distressed over the majority’s turn in the law and want to call particular attention to it.

The court has been transformed since 2015, and the contemporary ideological gulf was evident in arguments over this new culture-war battleground. At the core of the case is how much judicial scrutiny laws regarding transgender individuals demand under the Constitution’s guarantee of equal protection of the law.

About 25 other states have enacted similar anti-trans laws in the past three years, and President-elect Donald Trump devoted part of his recent campaign to attacks on transgender interests. Same-sex marriage, on the other hand, has faded as a campaign issue in the decade after Obergefell.

In the courtroom, the conservative justices quickly captured the momentum, embracing a position that would provide minimal judicial scrutiny, while the three liberals grew visibly frustrated.

Justice Sonia Sotomayor, the senior member of the court’s left wing, raised the potential harm to young people seeking puberty blockers and hormone treatments for gender transition.

“The evidence is very clear that there are some children who actually need this treatment, isn’t there?” she asked US Solicitor General Elizabeth Prelogar, noting problems caused by gender dysphoria, including drug addiction and attempted suicide.

But such assertions gained little traction beyond the two lawyers, from the Biden administration and ACLU, representing the trans youths and their families who had sued Tennessee.

Rather, Roberts’ emphasis directed much of the debate.

“I want to ask about our role here and pick up on the chief justice’s questions at the beginning,” Justice Brett Kavanaugh said, “Who decides?”

“If there’s strong, forceful scientific policy arguments on both sides in a situation like this, why isn’t it best to leave it to the democratic process,” Kavanaugh asked.

“Well,” responded Prelogar, “I do think that the Constitution takes a position that individuals are entitled to equal protection of the law. … When you look at how this law actually operates, what it is doing is denying individual plaintiffs the ability to access medications on the basis of their sex.”

The Tennessee law forbids puberty blockers and hormones for anyone seeking gender transition but permits them for non-transition purposes, such as to treat congenital conditions and precocious puberty.

Kavanaugh latched on to arguments from state lawyers regarding potential harm to minors, including, he said, “lost fertility” and “the physical and psychological effects on those who later change their mind and want to de-transition, which I don’t think we can ignore.”

Such issues, Prelogar told the court, could be considered as judges scrutinized states’ defenses of their laws. “They just have to come forward and demonstrate that they do have an important state interest” for the sex-based regulation.

Other conservatives who voiced varying degrees of doubt for the challengers’ position were Justices Clarence Thomas, Samuel Alito and Amy Coney Barrett. The court’s sixth conservative, Neil Gorsuch, asked no questions throughout the session.

Prelogar had earlier emphasized to Roberts that states would retain a role in setting certain restrictions on treatment to address any medical uncertainty.

“But,” Prelogar added to Roberts, “I think it would be a pretty remarkable thing for the court to say that just because we’re in the space of medical regulation, you are not going to apply the traditional standards that ordinarily are applied when there’s a sex classification.”

“Well,” Roberts said, possibly working out where the court might land, “I guess I wouldn’t say just in the area of medical regulation … It’s more in the area of evolving standards and technical treatment issues and the effect of … prescribing particular medications.”

Perhaps, the most potent rejoinder to the chief justice came later as Justice Elena Kagan, a liberal, challenged Tennessee solicitor general J. Matthew Rice’s contention that the ban arose from medical concerns distinct from any classification based on sex.

“The prohibited purpose here is treating gender dysphoria,” Kagan said, “which is to say that the prohibited purpose is something about whether or not one is identifying with one’s own sex or another. The whole thing is imbued with sex.”

“You might have reasons for thinking that it’s an appropriate regulation … ” she added. “But it’s a dodge to say that this is not based on sex, it’s based on medical purpose, when the medical purpose is utterly and entirely about sex.”

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