Democrats & many Republicans ask Supreme Court to stop Tennessee’s gender-affirming care ban

Yesterday, nearly 200 Democrats and Republicans wrote amicus briefs asking the Supreme Court to rule in favor of transgender rights in the upcoming L.W. v. Skrmetti case, which challenges Tennessee’s ban on gender-affirming care for transgender youth. It is the first such case that the Supreme Court is hearing.

“While the government has a role in keeping kids safe, that role is limited, and it does not justify the State second-guessing the judgments of parents acting in good faith who are best positioned to know what their children need,” the Republican signatories wrote in their brief. “States have no business overruling the decisions of fit parents who make an informed medical choice for their children that is supported by their doctors, by the medical profession more generally, by the children themselves, and by their conscience.”

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The Republican brief was signed by numerous former and current Republican politicians and notable officials like Kentucky state Rep. Kim Banta; former U.S. Reps. Barbara Comstock (R-VA), Denver Riggleman (R-VA), and Deborah Price (R-OH); former Republican National Committee National Press Secretary Kirsten Kukowski; Republican campaign manager Colin Reed; and the late Sen. John McCain’s chief of staff and advisor Mark Salter. It was also notably signed by former Rep. Ilena Ros-Lehtinen (R-FL), the mother of Advocates for Trans Equality executive director Rodrigo Heng-Lehtinen.

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“It is imperative that we come together as Republicans, conservatives, parents, and advocates to stand in support of individual liberties and non-discrimination protections while preserving limited government and parental rights,” said Ros-Lehtinen to NBC News.

The Republican lawmakers relied on an argument of parental rights, stating that the government has no business interfering in private medical decisions with trans youth’s families. They drew on prior legislation and the Constitution to argue that government meddling in medical decisions constitutes a violation of parental rights, essentially arguing that the state itself is supplanting itself as the caretaker for these children. This is notable since Republicans often argue about parental rights to oppose transgender equality.

This brief says that “while the State may prefer to override certain choices parents make about the care of their children, the authority it claims would open Pandora’s box.” They use their position on parental rights to argue against trans rights in the brief as well, saying that policies like those in Maine and California that allow trans children to get hormone replacement therapy without parental consent under specific medical circumstances or that allow them to talk to school faculty without telling their parents are other examples of state interference with parental rights.

Additionally, they argue that these policies can be used to justify other actions, including governments jumping into decisions on what food their kids can eat. They argue that the Tennessee gender-affirming care ban constitutes a violation of the Equal Protection Clause.

164 Democratic legislators signed their brief. The group was made up of 11 U.S. senators and 153 members of the U.S. House of Representatives, and their brief stressed the discriminatory nature of Tennessee’s gender-affirming care ban.

“The current rash of bills targeting transgender people is merely the latest round of discrimination faced by transgender individuals. Lower courts have cataloged the “widespread private opprobrium and governmental discrimination” faced by transgender individuals,” they wrote in their brief. “But amici believe enough is enough. Tennessee has no ‘proper legislative end but to make [transgender adolescents] unequal to everyone else. This [Tennessee] cannot do.’—so the Court should reverse.”

The politicians seen in this brief include Rep. Nancy Pelosi (D-CA), Sen. Bernie Sanders (I-VT), Sen. Elizabeth Warren (D-MA), Sen. Ed Markey (D-MA), Sen. Jeff Merkley (D-OR), Rep. Mark Pocan (D-WI), and Rep. Frank Pallone (D-NJ), among others.

They also argue that animosity towards trans people played a large role in passing Tennessee’s bill. They note that Tennessee is a “hotbed” for such animosity, having nearly twice as many anti-LGBTQ+ laws as any other state. They refer to hateful rhetoric from Tennessee politicians.

The core argument in this brief is that there is a medical consensus that gender-affirming care is safe, medically necessary, and backed by numerous reputable organizations across the United States and the world. They argue Tennessee is discriminating against transgender individuals by blocking them from accessing safe and effective health care.

The American Civil Liberties Union and the Human Rights Campaign both supported the brief.

“Thank you to the many members of Congress for standing with transgender and nonbinary youth across our country in asking the Supreme Court to find bans on lifesaving gender-affirming care to be unconstitutional,” HRC’s vice president of government affairs David Stacy said.

“The government should not be able to interfere in decisions that are best made between families and doctors, particularly when that care is necessary and best practice. These bans are dangerous, animated purely by anti-transgender bias, and have forced families to make heartbreaking decisions to support their children.”

L.W. vs. Skrmetti concerns a Nashville family and their transgender daughter who had their care restricted as a result of Tennessee’s 2023 gender-affirming care ban, Public Chapter No. 1. The American Civil Liberties Union helped represent the family in the case, and it was previously taken to a federal court, where the ban was blocked. However, an appeals court ruled against the family and in favor of the state government, which led the ACLU to appeal to the Supreme Court. SCOTUS announced that they would hear the case in June of this year.

House Judiciary Committee Ranking Member Jerrold Nadler said of the brief in a statement: “Tennessee’s discriminatory ban on transgender minors’ access to necessary healthcare is an illegitimate law enacted as part of a nationwide movement to villainize trans people for political gain.”

“Transgender people deserve the same access to healthcare as everyone else.  There is no constitutionally sound justification to strip from families with transgender children, and their doctors, the decision to seek medical care and give it to politicians sitting in the state capitol. I trust parents, not politicians, to decide what is best for their transgender children.”

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