On Wednesday, the Supreme Court heard oral argument in United States v. Skrmetti, the Constitutional challenge to Tennessee’s sweeping ban on gender-affirming care for transgender youth under the age of eighteen. The Court’s conservative majority appeared skeptical of the arguments raised by lawyers supporting access to gender-affirming care, indicating that it is likely to uphold the ban and weaken sex discrimination law broadly. These Justices’ questioning revealed their dangerously limited understanding of responsible pediatric care.
The case concerns Senate Bill 1 (SB1), which passed in the Tennessee General Assembly in 2023. It prohibits medications that pause pubertal development (known as “puberty blockers”), hormone therapies, and gender-affirming surgeries when given “for the purpose of enabling a minor to identify [or] live as” a transgender person—though non-transgender youth may still access those same treatments.
As a pediatric resident physician and a senior law student, we believe that upholding SB1 would not only authorize discrimination against transgender people, but also open the door to the prohibition of other types of essential health care for youth. What’s at stake is not just youth access to gender-affirming care in Tennessee, but whether the Court will concede to a rising moral panic that will ultimately hurt all children across the country. The case of trans youth should instead push us to learn a lesson about autonomy that can benefit pediatric care more broadly.
While the conservative Justices’ questioning leveled contrived critiques at the petitioners, the legal case for trans rights is straightforward. As a brief filed by a group of legal scholars and philosophers explains, it is impossible for Tennessee to enforce SB1 without first classifying and then discriminating between different youth based on their sex, as the state defines it.
Alternatively, SB1 discriminates because it “expressly singles out transgender youth for unequal treatment.” Non-transgender youth—specifically, cisgender and intersex youth—have long had access to the same medical interventions in cases of early puberty, growth differences, and chromosomal variations that affect the gonads. Therefore, SB1 does not take inherent issue with these interventions (which will continue under SB1’s policy), but rather, takes specific issue with trans youth accessing them.
The Court could also find that SB1 is wholly irrational—that its exceptions for non-transgender youth reveal SB1 has no logical relation to Tennessee’s stated goals of “protecting minors” or making youth “appreciate their sex.”
Any of these arguments could swiftly defeat SB1. But during oral argument, certain Justices instead dwelled on an impossible task they need not face: defining an absolute age of medical consent that can balance safety and autonomy. Justice Alito lamented that if the Court struck down Tennessee’s ban, “lay judges” would need to decide on “complex medical issues” by endorsing a new package of consent rules, such as “readiness criteria, age recommendations, licensing,” or other requirements. Justice Barrett considered whether Tennessee had a valid reason for its ban, surmising the state’s position to be that “we want girls to be girls and boys to be boys at least until they’re old enough to decide otherwise.”
When the case appeared before the Sixth Circuit Court of Appeals, Chief Judge Jeffrey Sutton similarly voiced concern that striking down bans on gender-affirming care for minors only “puts judges in [a] remarkable line-drawing enterprise . . . and I have no idea how to make that decision.”
This “line-drawing enterprise”—which assumes that youth lack the capacity to consent to health care below an as-yet undefined age cutoff, but become fully autonomous decision-makers upon reaching adulthood—has been taken up by legislators in Tennessee, as well as in twenty-five other states that have banned various forms of health care for transgender youth. This approach is indicative of the unique discomfort with transgender youth accessing gender-affirming care that has captured our culture, despite findings that young people understand the risks of these treatments, have lower regret rates than others who receive widely accepted medical procedures such as mastectomies for cancer treatment or prevention, and gain transformative and life-enhancing benefits from gender-affirming care.
We have seen moral panics like this before: discomfort among the general public with youth independently accessing other controversial medical treatments, such as reproductive care or substance use treatment, has produced similar culture wars in the past. To address this, carve-outs have been introduced in many states to enable the kinds of care we feel comfortable allowing youth to access, while still presuming that minors are otherwise incapable of consent. The result is a haphazard cobbling of social attitudes, tenuously bound by an ill-defined concept of adolescent capacity.
Some Justices rightly took issue with this patchwork approach. Tennessee claims that trans youth are uniquely and categorically unable to consent, even with their guardian’s permission. This would represent yet another carve-out where a stigmatized application of medicine is arbitrarily distinguished from typical consent practices. Justice Sotomayor pointedly critiqued Tennessee’s argument, asking why a boy with unwanted hair growth who “gets laughed at and picked on [because] his puberty is coming in too early” can access a hormonal treatment while someone assigned female at birth cannot access the same treatments because their breasts are developing and causing analogous distress.
Here, we stand to learn something from trans youth and society’s discomfort with recognizing their autonomy: that determining whether all youth can or cannot consent to a treatment is futile. Consent in health care requires an individual, case-by-case evaluation, which means that in some cases, one fourteen-year-old may be deemed able to consent to a treatment, while another fourteen-year-old may be deemed unable. Responsible providers assess each patient’s and their family’s understanding of the risks and benefits of an intervention, grasp of how it will affect different elements of the patient’s life, and strategies for support. Far from being specific to gender-affirming care, this standard applies to virtually all areas of medicine. This is why most Canadian provinces have no medical age of consent for treatment, but instead recognize that each young person’s capacity to consent to treatment must be assessed by their provider.
This is not to say that treatment is offered without scrutiny in these jurisdictions. It simply means that legislators recognize that health care providers—who are able to assess each patient, speak with their guardians, and consider their unique context—are better positioned to make individual decisions about a patient’s capacity than legislators who will never meet them.
Young people, when treated as active participants in their care, can be supported to understand all the risks and benefits of the treatment they seek and make informed decisions, often in collaboration with their guardians. But laws like SB1 cut off opportunities to actively involve young people and their guardians in these decisions, instead casting aside the responsible notion of case-by-case treatment and permitting state overreach.
The Justices’ squeamishness with line-drawing reflects that courts are not well-equipped to rule absolutely over matters of pediatric medicine—but neither is the Tennessee legislature. When laws like SB1 seek to impose a singular and inflexible line for when essential health care options should be forbidden from transgender youth, courts must respond rather than abdicate their duty to protect equal rights.
Instead of drawing arbitrary lines in pediatric health care, courts should pronounce that this line-drawing is outside the role of both the legislature and the judiciary. That responsibility rests with the collaborative team formed by a young trans person, their guardians, and their health care provider. The conservative Justices have an affinity for deferring regressive policy to states; in this case, they would risk the health and wellbeing of countless youth nationwide.