The Supreme Court Asks Who Should Decide about Medical Interventions

Neither judges nor state lawmakers are in a good position to analyze complex medical literature

The U.S. Supreme Court held oral arguments yesterday in U.S. v. Skrmetti, a case examining whether Tennessee’s ban on medical treatments for transgender youth discriminates based on sex.

As a physician, one major theme jumped out at me from oral arguments. Several of the justices seemed to imply that, because medical science is complicated, they shouldn’t be the ones deciding if a law related to medicine discriminates. They seemed to say that they should throw up their hands and leave it to state legislators to decide.

As Justice Jackson highlighted, this is a scary prospect. The reason the Equal Protection Clause exists is to prevent states from attacking politically vulnerable people, like transgender people, from being targeted by majority groups. Given the surge of anti-transgender legislation in recent years, it’s hard to imagine that Equal Protection legal analysis isn’t absolutely essential here. It has long been the role of the courts to protect vulnerable groups from state legislatures.

But I do sympathize with the justices to a degree. The reality is that neither the court nor state legislatures are in a good position to make decisions about complicated medical issues. The analysis of a body of medical research quickly becomes complex. It can involve sorting through hundreds of research studies, and it can be difficult even for doctors outside that particular area of expertise to unpack.

Given the complexity of medical literature, it’s also easy for people to mislead. For example, during the Skrmetti oral arguments, the ACLU’s Chase Strangio had to explain to the court that Tennessee’s assertion that 85% of young people identifying as trans will later change their mind about being trans wasn’t relevant to this case. The figure was from a study of prepubertal children who can’t access gender-affirming medical interventions under current guidelines. Studies of adolescents who have accessed treatment under medical guidelines (which require kids to be older) have found regret rates more on the order of a few percent. And as some of the liberal justices pointed out, all areas of medicine have a risk of regret (something a lay person could easily miss when discussing topics like this). Regret risk isn’t something unique to gender-affirming care.

The people in the best position to make decisions about medical care for children are teams of medical professionals, the adolescent, and their guardians. Current guidelines for gender-affirming medical care for transgender adolescents emphasize the need for involvement of a physician specializing in hormone prescribing, a mental health professional, the adolescent, and the adolescent’s legal guardians. This is the team that should be making medical decisions – these people know the adolescent best and can weigh the risks and benefits of a particular treatment for that particular child. State lawmakers and judges, who have never met that child and have rudimentary knowledge of this area of medicine, are perhaps among the worst situated to make that decision.

That isn’t to say that doctors shouldn’t be regulated at all. But there are already guardrails in place to ensure that doctors act appropriately and in line with medical consensus and evidence. Medical malpractice laws exist for this very reason, and medical boards routinely regulate the practice of medical professionals. Tennessee’s law was unnecessary, and it simply made it so that appropriate medical care could no longer be prescribed in the instances where it’s appropriate and likely to help. One of the plaintiffs in the case, for example, had regular vomiting and considered being mute due to his gender dysphoria. Lawmakers who never met him and didn’t understand the nuances of his medical care should not have taken away his treatment.

Now that Tennessee has acted in the way that it did, I acknowledge that the justices are in a tough situation here. Once they rule whether the law discriminates based on sex (it seems clear it does, since it allows some medications like estrogen for one sex, but not the other), they are faced with going through a large body of medical evidence to determine if the state had a valid justification for passing its law (laws that discriminate based on sex must withstand something called “intermediate scrutiny” to be allowed to stand).

Plaintiffs in the case have on their side the fact that all major medical organizations oppose bans like Tennessee’s. Tennessee on its side has misleading claims that European nations have banned care like they did (none actually have) and sketchy reports from political scientists at right-wing think tanks. I have to say that once they start digging through the evidence, the answer may actually become clearer than they think. But given the right-wing investment in attacking medical expertise and generating reports to question mainstream science through their think tanks, it will be a lot of work to sort through it all.

The best-case scenario here is for the Supreme Court to shut down this law and put medical decision-making back where it belongs: with parents, their children, and their medical professionals (regulated by existing malpractice laws and medical boards). But only time will tell how they decide to wade into the complex arena of medical science.

Jack Turban MD is a pediatric psychiatrist and author of the book Free to Be: Understanding Kids & Gender Identity. His writing has appeared in The New York Times, The Washington Post, The Los Angeles Times, CNN, and Scientific American, among others.