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Brian Lehrer: It's the Brian Lehrer show on WNYC. Good morning again, everyone. I spoke earlier in the show about the catch 22 that potential trans girl or woman athletes are being put in just even based on this one day's news, yesterday's news. The LPGA, the Ladies Professional Golf Association, said you have to have had gender affirming care before puberty in order to be allowed to compete. The case that the Supreme Court heard yesterday was about one of the states that has banned that care for anyone under 18. For that group of people, they're required to have it and they're prohibited from having it.

Now we'll take a closer look at the Supreme Court case specifically. Yesterday they heard oral arguments in United States States vs. Skrmetti, which will determine if Tennessee can ban transgender care for minors. Yesterday's SB1, Tennessee's SB1, that's what it's called, SB1 in the legislature, banned surgery, puberty blockers and hormone treatments for the purpose of gender transition for people under 18, period. No matter how the conservative majority Supreme Court rules, the implications could be broad because almost half the states, 24 states, according to NPR, have similar laws to Tennessee's, all passed in the last three years, by the way.

There's been a rush to ban gender affirming care for minors as this has become politicized. More than 110,000 teenagers live in states where restrictions or transgender care exist. According to the Williams Institute at the UCLA School of Law, about 300,000 teens identify as transgender in the United States. Joining us now to break down yesterday's oral arguments is Kate Shaw, professor at the University of Pennsylvania Carey Law School, co-host of the podcast Strict Scrutiny, a contributor with ABC News and a contributing opinion writer for the New York Times. She previously worked in the Obama White House Counsel's office and served as a law clerk to US supreme Court Justice John Paul Stevens. Welcome back to WNYC, Professor Shaw. Thanks for giving us some time on this today.

Kate Shaw: Hi, Brian. Thanks so much for having me.

Brian Lehrer: Three Tennessee families along with Biden administration are challenging this ban which bars transgender minors from having access to gender affirming care. Solicitor General Elizabeth Prelogar began the oral arguments. Here's a 30 second clip.

Elizabeth Prelogar: SB1 regulates by drawing sex based lines and declares that those lines are designed to encourage minors to appreciate their sex. The law restricts medical care only when provided to induce physical effects inconsistent with birth sex. Someone assigned female at birth can't receive medication to live as a male, but someone assigned male can. If you change the individual sex, it changes the result. That's a facial sex classification, full stop. A law like that can't stand on bare rationality.

Brian Lehrer: Professor Shaw, give us the context and the legal rationale for that clip. Basically, they're claiming sex discrimination, right?

Kate Shaw: That's right. I think it's a pretty straightforward argument that the federal government, joined by the parents of several trans kids, are making. That is just that this law represents sex discrimination, pure and simple. As Prelogar described in that clip, if you're a teenager and you are assigned male at birth, you can get testosterone. Actually that sometimes happens if puberty's onset is delayed. Kids routinely are prescribed things like testosterone, not for any gender transition purposes. There's nothing under the law that would prohibit that.

If you are a girl assigned at birth and you want testosterone in the context of gender dysphoria and a treatment plan supervised by a doctor, the law prohibits that. The argument is that this is just sex discrimination, pure and simple. Actually that doesn't mean that the law falls, that it's unconstitutional. All it means laws sometimes do discriminate on the basis of sex, but when they do, courts take a very close look under what's called intermediate scrutiny to make sure that the state is offering some good justification for drawing a line on the basis of sex.

Here Tennessee is arguing we don't have to give any compelling reason. We just have to basically say, "Ah, we want kids to appreciate the gender they're assigned at birth. That's reason enough to prohibit this category of care." What the federal government is arguing is that again, when this is a sex discrimination, the state has to work harder to show something more pressing in order for this law to survive constitutional scrutiny.

Brian Lehrer: Yes, that's a really interesting argument by the families and the Biden administration. Sex discrimination because the law allows the same medical treatment for minors suffering from other conditions, but not if they want it because of gender dysphoria, so it's sex discrimination. Chief Justice Roberts pushed back. He was among various of the more conservative justices who pushed back. He brought up that this ban involves medical judgments which might make it different. He said this.

Chief Justice Roberts: Doesn't that make a stronger case for us to leave those determinations to the legislative bodies rather than try to determine them for ourselves?

Brian Lehrer: Roberts also went on to say, my understanding is that the Constitution leaves that question to the people's representatives rather than to nine people, meaning the justices of the Supreme Court, none of whom is a doctor. Can you explain that pushback in a little more detail?

Kate Shaw: Sure. I find it a little hard to swallow this line of argument from the Chief Justice because, of course, most of the time the people acting through their elected representatives get to decide what laws will govern them, but the Supreme Court has always, and by design is supposed to sometimes in unusual circumstances, override determinations made by the people's representatives if those determinations violate the Constitution.

An example that I thought that Chase Strangio, who was the lawyer arguing for the families in the case, basically came back with was some of the COVID era, rather, restrictions. States imposed limitations on gathering in groups and things like that during the early COVID pandemic. Those were decisions made by the states and their elected representatives. The Supreme Court had no problem in those cases swooping in and saying, "No, no, those laws have to fall because they don't sufficiently safeguard, in that case, religious liberty." People couldn't gather in their houses of worship and things like that.

The point is, most of the time the elected representatives get to call the shots, but the Constitution is a backstop and laws don't get to violate the Constitution. If they do, the Supreme Court is supposed to step in and invalidate them. I'm not sure the Chief justice was really, at least to my mind, making much headway in saying the people should decide. Because the point is the Constitution sometimes overrides decisions made by the people.

Brian Lehrer: Here's a longer stretch of Justice Samuel Alito asking the Solicitor General if-- maybe sarcastically asking, if she would like to modify her claim that there is overwhelming evidence of the benefits of gender affirming treatment based, he says, on what European countries have done. Let's take a listen to Alito.

Justice Samuel Alito: The Swedish National Board of Health and Welfare wrote the following. They currently assess, "That the risks of puberty blockers and gender affirming treatment are likely to outweigh the expected benefits of these treatments," which is directly contrary to the sweeping statement in your petition. After the filing of your petition, of course, we saw the release of the CAST report in the United Kingdom, which found a complete lack of high quality evidence showing that the benefits of the treatments in question here outweigh the risks.

I wonder if you would like to stand by the statement that you made in your petition or if you think it would now be appropriate to modify that and withdraw the statement that there is overwhelming evidence establishing that these treatments have benefits that great outweigh the risks and the dangers.

Brian Lehrer: Sounds like Alito is perfectly comfortable with the court making medical judgments rather than leaving that up to the people's legislatures. How did the Solicitor General respond to that challenge?

Kate Shaw: Alito did seem very comfortable there. I also thought it was somewhat rich for Alito to be injecting this mode of argument because Alito and some of the other conservatives on the court have mostly been deeply skeptical about evidence drawn from other contexts and how relevant that should be to US disputes about the US Constitution and lawmaking processes. Putting that to one side, I actually thought Prelogar, the Solicitor General, was really effective here because what she responded with was, "Look, first of all, actually those studies were not even in the record, so they're not supposed to be kind of at issue in this case. By the time you get to the Supreme Court, you're not really supposed to bring new evidence to bear on the question. You're supposed to be stuck with what the lower courts considered."

Putting that to one side, what she responded with was no one is making claims about the blanket efficacy of these kinds of interventions for all kids in all circumstances. No one would make that claim. The point they were making in the brief was for the particular kids who are plaintiffs or whose families are plaintiffs in this case and particular children who, under the supervision of medical professionals, have been diagnosed with gender dysphoria and for whom the recommended course of treatment is some kind of intervention, the benefits are enormous and the risks of not receiving some kind of intervention can be catastrophic in terms of things like serious mental health effects, those sorts of things.

Her point was, again, not that this is broadly recommended for all kids by any stretch, but for the subset of the population for whom this is a real issue, the benefits very clearly outweigh the costs. She was pretty adamant that the representation that the government made in its brief was an accurate one as to the covered population.

Brian Lehrer: Listeners, we can take a few phone calls with comments or questions about the Supreme Court oral arguments yesterday in the case of this Tennessee law banning all gender affirming care for minors experiencing gender dysphoria. 212-433-WNYC, 212-433-9692, call or text. Then this pertains, really. I mean, it specifically pertains to Tennessee, but it has implications for the 24 states that have passed similar laws in the last few years. With Professor Kate Shaw, ABC News Contributor, professor of law at Penn now. Right? I lost your--

Kate Shaw: Yes, correct. At Penn.

Brian Lehrer: And co-host of the podcast Strict Scrutiny. Could there be a legal argument here? Or maybe this is the plaintiff's legal argument that the Tennessee law is political, not medical. Maybe this is the discrimination claim. Because if 24 states have passed these affirming care bans and they're all controlled by Republican politicians and the Democratic controlled states haven't, then this is about politics, not medicine.

Kate Shaw: I think that's the backdrop to the case. I would say that's kind of the atmospherics. Actually, the argument in the briefs and in front of the court yesterday really did stay in the register of law. We have the legislature can make decisions and, of course, politics will influence the decisions that legislatures make. I'm not sure the government was suggesting there's anything generally improper about it. Although, of course, you're right that the partisan divide is really stark in terms of what states have implemented these bans and what states have not.

There wasn't really an effort to press that aspect into service in the legal argument, the court stayed in very, or the advocates rather, stayed on very familiar legal terrain, which is just laws sometimes draw distinctions. Most of the time when laws draw distinctions, the legislature gets a pass. Courts take a very light touch because we don't want courts to be making the kind of most important policy judgments about the way we live our lives. Again, we have the Constitution and it places some real and meaningful limits. It places limits on the ability of legislatures to draw distinctions on the basis of race, on the basis of sex. The argument is this is an example of a law that draws a distinction on the basis of sex.

One case that came up, I think only briefly in the oral argument, was a challenge to a single sex education policy at the Virginia Military Institute, or VMI. At the time, VMI did not admit women to its training academy. It said, "Look, we have a very special style--" that is what they called an adversative method. "It's physical, it's demanding. Individual students live in barracks together. It's not the kind of thing that could possibly allow the introduction of women."

The court took a look and said, "We're not discarding those reasons, but this is sex discrimination. We need to figure out whether those reasons are pressing enough to justify the exclusion of women from this really important training ground and aspect channel into the echelons of power." The court said that actually VMI did have to admit women and they could make all kinds of changes to accommodate women living situations and things like that, but it's an example of the court taking seriously the Constitution's prohibition on sex discrimination absent some compelling reason to justify it. That's a case in the line that this case would be in.

So too is the 2020 decision in which the Supreme Court found that discrimination on the basis of sexual orientation or gender identity violates federal anti-discrimination laws. That's the Bostock case. In that case, actually, Justice Gorsuch and Chief Justice Roberts were on the side that held that those kinds of discrimination are a violation of the federal anti-discrimination laws. The plaintiffs in this case are arguing that the court has already made clear that we look very skeptically at laws that distinguish on the basis of sex. This law falls squarely within that tradition, and it should fall.

Brian Lehrer: Bill in Saranac Lake, you're on WNYC with Kate Shaw. Hi, Bill.

Bill: I have one question that I-- this probably gets into advocacy strategy, but the issue of West Virginia was raised, which apparently has a much more nuanced law because somebody in the legislature, the speaker or somebody, is a physician. I don't understand why Elizabeth Prelogar, who I highly respect, didn't give that as an example, even though it's not before the court and just say, "Hey, it's not before the court." At first blush, this kind of law would be the kind of law that would be fostered by intermediate scrutiny and may or may not pass under intermediate scrutiny. It's a good example of the advantage of intermediate scrutiny as opposed to just what the two positions that was being offered.

Brian Lehrer: Yes. Professor Shaw.

Kate Shaw: Yes, thanks, Bill. That's an interesting question. I think usually an advocate before the court is not going to want to take a position that they might later be bound to if they decide there is some problem they would like to raise with the West Virginia law. I presume strategically that's why. I think it's a really nice point and implicitly, at least, I don't think there was anything in the Solicitor General's argument that was inconsistent with the point that you were making, which is it may be reasonable for states to pass laws that seek to regulate and maybe regulate in distinct ways from the regulation of other kinds of medical procedures, gender affirming care for kids.

The point is just that this total prohibition on a type of medical intervention that the American Psychiatric Association and Medical Association and many, many experts and physicians have argued that under some circumstances is necessary care for children. A prohibition like this one is just far too blunt a tool. I think it's absolutely right that that argument does not preclude a state from adopting something more nuanced that, say, requires a heightened degree of certification or multiple physicians to sign off on beginning, say, hormone treatment therapy or something along those lines.

I think it's right that if the court were to side with the federal government, invalidate this Tennessee law, it would absolutely leave open the possibility that states like Tennessee could go back to the drawing board, wouldn't have to abandon this topic, but could do something more sensitive and nuanced that doesn't completely eliminate the possibility of this type of care.

Brian Lehrer: We're getting a few versions of this text coming in. This one says, "I wonder why they don't use a parental rights argument since that seems to sway the conservative justices in favor." We are talking, Professor Shaw, about minors getting gender affirming care with the consent of their parents. We're not talking about 12 year olds who go out and do this on their own necessarily.

Kate Shaw: Oh, absolutely not. No, the challengers in the case are both the federal government, but also a group of parents of transgender children. Parents are very much in the case. There is a technical reason that you didn't hear much about it in the oral argument, which is that there were two different issues in the case. One, an equal protection issue, the sex discrimination question that we've been talking about, and second, essentially a substantive liberty question under the liberty protected by the 14th Amendment rather than just the equality protected.

The Supreme Court actually just took up the equal protection argument. There is a separate question in the case that is more squarely about parental rights and parental ability to control the medical care of their children. That is just not before the court in this case as kind of a strategic matter. Doesn't mean it's not an issue, it just means that it wasn't squarely presented in this argument.

Brian Lehrer: Yes, you're a legal analyst, not a political analyst. Republican run on educational culture war issues all the time claiming schools shouldn't usurp parents rights to decide what kinds of education or protection of students privacy that schools shouldn't engage in in order to usurp parents rights. This law seems to completely discount the judgment of parents coming from hypothetically the same side of the culture wars.

Kate Shaw: It does feel like there is a really almost irreconcilable tension here, because exactly right. It is the parents, I'm sure, whose personal politics run the gamut, but who care deeply about their children and believe that what their children need is some version of this kind of medical care that their Republican legislature has said is categorically unavailable to their children. It does seem as though it's an issue that has the potential to cleave to some degree a lot of conservative circles. Again, because of the procedural background of the case that wasn't presented in as stark a fashion as we are talking about right now during the oral argument.

Brian Lehrer: Right. We do have the privilege of audio from Supreme Court arguments these days. Defending the state's law was Tennessee Solicitor General Matthew Rice. Here he is making his case, answering a question from Justice Ketanji Brown Jackson.

Matthew Rice: Not arguing that you can discriminate and draw lines so long as you so both against boys and against girls. We're arguing there is no sex based line. If you're a boy and you go in to get puberty blockers, you can get the puberty blockers if you're going to use them for precocious puberty, you cannot get the puberty blockers if you're going to use them to transition. That is not a sex based line. That is a purpose based line.

Brian Lehrer: I'm going to play one more clip of another lawyer. This happens to be the first openly trans lawyer ever to argue before the United States Supreme Court. Name is Chase Strangio, and he is responding to Justice Roberts asking why should the court get involved?

Chase Strangio: With respect to what is the role of the courts, I continue to think it is to test whether or not a law is properly tailored. That is what the district court did here. In fact, the underlying science and the evidence showed that Tennessee's assertion of harm and their prevalence were not supported. The district court made factual findings to that effect of which Tennessee has not argued were clearly erroneous.

If what is left here is just bare rationality review, Tennessee is in essence saying, let's not look at the evidence at all whether this is a law that bans this medical treatment for minors or for adults, that in all other contexts, what Tennessee does is recognize that there are risks and there are benefits. Usually the state regulates by informing patients of the risks and tailoring to minimize them. Here what they've done is impose a blunderbuss ban, overriding the very careful judgment of parents who love and care for their children and the doctors who have recommended the treatment.

Brian Lehrer: Now, Professor Shaw, I don't suppose this came up yesterday. We're actually going to talk about it with our next guest. This idea that there's kind of a catch 22 now that potential trans girl or woman athletes are being put in. Just based on yesterday's news, we have this Supreme Court case about one of the states that has banned care for anyone under 18, gender affirming care. The Ladies Professional Golf Association ruled yesterday that you have to have had gender affirming care before puberty in order to be allowed to compete in that league. For that group of people, I realize a small group of people, but for that group of people, they're required to have it and they're prohibited from having it.

Kate Shaw: I suppose in theory they could travel to a state that does continue to permit this kind of care, but of course, that's not something that's going to be financially feasible for many people. It does feel as though this effort to deny care, to deny access to an activity that for many people gives a lot of meaning in life, which is participating in sports, whether recreational or professional, is a door that trans individuals are finding closed to them across the board. It does feel like there's a concerted effort.

Back to the political point that you made a few minutes ago, I will say that I think that Chase, who I thought did a terrific job in the argument, was essentially alluding back to something that your caller Bill mentioned earlier, which is states can seek lots of informed consent. There are lots of different ways if they are genuinely concerned about kids undergoing treatment that they might come to regret about kids. By the way, these are all the kinds of treatments at issue in the oral argument are reversible treatments.

Whatever concerns that states have about protecting vulnerable populations, there are many, many ways for them to implement those concerns. Short of this categorical and sometimes deeply devastating to the health and lives of transgender children ban of the sort we see in Tennessee.

Brian Lehrer: Last question in our last minute. Most of the news outlets that I've seen report on this today say looks like the court is going to uphold this ban based on the questioning of the majority of the justices. Is that your impression?

Kate Shaw: I don't know that I would go quite so far. In part, it's hard because Justice Neil Gorsuch, who wrote the opinion in the Bostock case from 2020 about discrimination, didn't ask any questions. He in some ways is the most important player here. You can't read what he is thinking without any questions from him. Chief Justice Roberts, he for sure seems skeptical, but sometimes he asks hard questions of both sides. This is a case where I do think, given the political backdrop, it's an uphill battle for the challengers to this law. I actually wouldn't write it off. I thought the arguments were really powerful, and I think there's at least a chance that the Tennessee law falls, even if they have a chance to start over with some different version of the law, that this one simply goes too far. I remain of the view that that is at least a possibility.

Brian Lehrer: Kate Shaw, professor at the University of Pennsylvania Carey Law School, co-host of the excellent, I'll say, Supreme Court podcast Strict Scrutiny, a contributor to ABC News and a contributing opinion writer to the New York Times. Thanks so much for coming on on this.

Kate Shaw: Thank you for having me, Brian.

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