Tennessee legislation could have national implications for gender-affirming care now that the nation’s highest court has opted to review a legal challenge regarding the rights of transgender individuals.

Beginning in 2022, the number of states prohibiting gender-affirming care for minors has surged from four to 25, prompting the justices to consider whether this constitutes a state’s right to oversee health care access or if these bans infringe upon the civil rights of transgender individuals “based on sex.”

Having observed the development of Tennessee’s law, I posit that these laws emerged as a reaction to anti-transgender sentiment stoked by far-right politicians who perceived the restriction of transgender rights as a politically advantageous strategy for their voter base.

To maintain consistency with past rulings, the Supreme Court must align with the overwhelming majority of district court judges who have determined these bans to be unequivocally unconstitutional, with one ruling even characterizing them as “based on bigotry.”

Tennessee’s top legal official aims for victory in the Supreme Court

However, Tennessee’s Attorney General holds a different view.

With the lawsuit bearing his name, he has stated his intent to “conclude the dispute” regarding the constitutionality of state prohibitions on gender-affirming care for minors.

The central questions are:

• Do Tennessee’s ban and similar ones across the nation reflect a state’s responsibility to shield transgender minors from “irreversible” medical interventions?
• Or do these restrictions infringe upon the civil liberties and self-determination of transgender individuals, as well as the parental rights to seek medical treatment for their children experiencing gender dysphoria?

The Attorney General’s stance clearly aligns with the former perspective. His duty, after all, is to uphold the laws of Tennessee, which in this instance includes the 2023 Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity Act.

However, numerous federal district judges have ruled against or agreed to temporarily suspend the enforcement of laws in various states due to concerns that lawmakers may have encroached upon the constitutional rights of transgender minors and their parents.

My daughter is trans:As the parent of a transgender daughter, I believe there is nothing conservative about obstructing her medical care.

Appeals court avoided the constitutional question

The Attorney General released a statement on Monday:

“We vigorously defended Tennessee’s law safeguarding children from irreversible gender treatments and obtained a well-considered and logical opinion from the Sixth Circuit. I anticipate concluding this legal battle in the United States Supreme Court. This case will provide much-needed clarity on whether the Constitution includes specific protections for gender identity.”

However, the 2–1 majority in the U.S. 6th Circuit Court of Appeals did not definitively address the fundamental question and instead presumed that the plaintiffs would not prevail.

Two judges overturned a lower court’s injunction against enforcing the bans in Tennessee and Kentucky, permitting the case to progress through the judicial process.

While acknowledging the existence of gender dysphoria, they argued that the relative novelty of certain treatments, like puberty blockers, made it challenging to ascertain the long-term effects of such treatments.

“Preventing citizens and legislative bodies from expressing their views on significant medical policies, where empathy for the child points in both directions, is not something that federal judges with lifetime appointments should do without clear constitutional justification,” they wrote.

In essence, they sidestepped the constitutional issue.

Conversely, a dissenting judge did not hold back:

“Tennessee’s and Kentucky’s laws convey to minors and their parents that the minors are ineligible for medical care due to circumstances of their birth and their inability to conform to societal expectations of male and female appearance and behavior. Moreover, these laws strip parents — those we typically recognize as best equipped to advance their minor children’s interests — of their right to make medical choices for their children in collaboration with their children and healthcare professionals. For these reasons, I dissent.”

The Nashville co-chair of the Tennessee Equality Project stated in response to the Supreme Court’s decision to hear the case that Tennessee “has misused its authority in a blatant overreach by attempting to access the medical histories of transgender and gender-diverse Tennesseans.”

“As the Supreme Court takes up (the case), we are confident that the Court will recognize how Tennessee, by prohibiting such care, has sought to undermine that trust and communication, obstructing access to life-saving health services for our state’s gender-diverse children,” she added.

Federal judge labels state bans as ‘based on bigotry’

This month, a federal judge prohibited Florida’s ban on gender-affirming care for minors, deeming it unconstitutional. The judge went a step further in his ruling, characterizing the law as legislation “based on bigotry.”

Hope amid Republican attacks:A judge’s decision to overturn Florida’s ban on gender-affirming care for transgender youth is a step in the right direction.

“This is a politically charged issue. There has long been, and continues to be, significant prejudice directed at transgender individuals,” the judge wrote. “Common experience confirms this, as do some of the comments made by legislators, as previously mentioned. Furthermore, even when not rooted in bigotry, some individuals genuinely but mistakenly believe that gender identity is not real but rather a choice. This, as noted earlier, is the elephant in the room.”

Prior to Tennessee’s implementation of its ban, state and federal lawmakers embraced a 2022 allegation from a right-wing media outlet asserting that Vanderbilt University Medical Center “castrates, sterilizes, and mutilates” children — an assertion that remains unsubstantiated.

However, Republican politicians, including a Tennessee senator, organized a “Rally to End Genital Mutilation” in front of the state Capitol mere weeks before the legislative session commenced.

In a 2023 opinion piece, a transgender activist presented three arguments against the state’s ban on care.

“How is it that a ban, which was considered too extreme in this state by its leaders just last year, is now being pushed through? The factor that may come to mind is what we keep hearing: ‘It’s to protect the kids from mutilation.’ This is not the case,” he said.

State lawmakers also penned guest articles in The Tennessean outlining their rationale for introducing the ban on gender-affirming care for minors.

“Cultural forces from the left would like us to accept an alarming new myth; that gender is not a biological reality,” wrote the House Majority Leader in a 2022 column shortly before the rally. The Senate Majority Leader authored a defense of the bill in early 2023 during the session. They collaborated on an essay last August defending the law.

Civil Rights Act should encompass all minors’ access to health care

In recent years, the Tennessee General Assembly has garnered national attention for targeting LGBTQ+ rights in areas like sports participation, restroom access, and the inclusion of the LGBTQ+ community in school curricula.

David Plazas is the director of opinion and engagement for the USA TODAY Network Tennessee, where this column originally appeared. Email him at dplazas@tennessean.com or tweet to him: @davidplazas

The Supreme Court determined in the 2020 Bostock v. Clayton County case that employment discrimination against individuals based on gender identity violated the Civil Rights Act. It is hoped that the justices will apply a similar rationale to safeguard the rights of transgender children and their parents to obtain medical treatment.

While there may be political advantages to enacting these bans, it does not make them morally or legally sound.