BURSTJustice Clarence Thomas said Wednesday that courts should not defer to “self-described experts” on gender-affirming care, suggesting it is a matter of medical uncertainty.
Thomas’s concurring opinion came as the Supreme Court upheld in a 6-3 decision Tennessee's ban on puberty blockers and hormone treatments for transgender minors, a ruling that could reverberate through several states that have similar laws.
“This case carries a simple lesson: In politically contentious debates over matters shrouded in scientific uncertainty, courts should not assume that self-described experts are correct,” the justice wrote in a solo concurring opinion.
Tennessee’s law, S.B. 1, bars health care providers from prescribing puberty blocking and hormone therapy medications to minors when the intent is to help them transition. Signed in 2023, it also bans gender-transition surgeries for minors, though the justices did not consider that provision.
Medical providers could face $25,000 civil fines for violating the law.
Thomas claimed that “many prominent medical professionals” have said there is a consensus around how to treat child gender dysphoria but there is “mounting evidence to the contrary.” Those experts have dismissed “grave problems” that undercut the assumption that young children can consent to “irreversible treatments,” he said.
“They have built their medical recommendations to achieve political ends,” the justice wrote, joining the majority in saying that the court’s decision hands power back to Americans and their elected representatives.
The court’s decision rejects a challenge brought by former President Biden’s administration. It found that Tennessee’s law does not amount to sex discrimination requiring a higher level of constitutional scrutiny, dealing a blow to LGBTQ rights advocates who have claimed as much to try and take down similar laws.
Justice Sotomayor pushed back against Thomas’s perspective in a footnote of her dissenting opinion, joined by Justices Ketanji Brown Jackson in full and Elena Kagan in part.
“Far from signaling that ‘self-proclaimed experts’ can determine ‘the meaning of the Constitution’ ante, this reference to the positions of major medical organizations is simply one piece of factual context relevant to the Court’s assessment of whether SB1 is substantially related to the achievement of an important government interest,” Sotomayor wrote.
“Indeed, even Justice Thomas seems to recognize that some scientific and medical evidence (at least that which is consistent with his view of the merits) is relevant to the questions this case presents,” she added, citing points where Thomas referenced various peer-reviewed medical journals throughout his opinion.
President Trump’s Justice Department walked away from the Biden administration’s challenge when he returned to the White House. The new administration urged the Supreme Court to decide the case, nonetheless, given its importance.
Major medical organizations, including the American Medical Association, have said gender-affirming care for transgender adults and minors is medically necessary and often lifesaving, though not every trans person will choose to transition medically or have access to care.
In May, the Department of Health and Human Services (HHS) broke with major professional medical groups in an unsigned report that declared gender-affirming treatments lack scientific evidence. Susan J. Kressly, president of the American Academy of Pediatrics, said her organization was “deeply alarmed” by the report, which she said “misrepresents the current medical consensus and fails to reflect the realities of pediatric care.”
During oral arguments in December, Justices Samuel Alito and Brett Kavanaugh repeatedly referenced European countries that have recently moved to restrict some gender-affirming care for youth.
“If it’s evolving like that and changing, and England is pulling back and Sweden is pulling back, it strikes me as a pretty heavy yellow light, if not red light, for this court to come in, the nine of us, and constitutionalize the whole area,” Kavanaugh said at the time.
But opponents of U.S. laws banning transition-related care for trans minors have said prohibitions imposed by Republican-led states go much further than European policies, which limit but do not categorically ban care.
“This is no ordinary medical regulation,” Pratik Shah, head of Supreme Court and appellate practice at Akin Gump, said of Tennessee’s law on a call with reporters in December.
Brooke Migdon contributed to this report, which was updated at 11:46 a.m. EDT