Today, the Supreme Court heard oral argument in U.S. v. Skrmetti, a challenge under the Equal Protection Clause to Tennessee Senate Bill 1, which prohibits healthcare providers from performing or administering gender-affirming care to minors while allowing the same treatments for minors who suffer from “congenital defect, precocious puberty, disease, or physical injury.” This is the first case the Court has heard related to a ban on gender-affirming care for people under 18 years old, of which 26 states currently have some form.
What You Need to Know
- Facts of the Case: Since 2021, at least 26 states have banned gender-affirming healthcare for people under 18 years old, despite such healthcare being available and the standard of care for decades. Two states ban best practice surgical care for transgender youth, while the remaining 24 states ban both best practice medication and surgical care for transgender youth. Passed in 2023, Tennessee’s ban applies to both medication and surgical care for transgender youth, characterized by the state as: “(A) Enabling a minor to identify with, or live as, a purported identity inconsistent with the minor's sex; or (B) Treating purported discomfort or distress from a discordance between the minor's sex and asserted identity.” The ban creates a private right of action for minors and their parents or next of kin against a healthcare provider who provided gender-affirming care and allows the state attorney general to independently seek civil penalties of $25,000 per violation of the ban. The ban explicitly allows the same treatments to be provided for minors suffering from any other medical conditions for which such treatment, including puberty blockers, hormone therapy, or surgery, is considered the standard of care. Tennessee’s ban states that: “These procedures can lead to the minor becoming irreversibly sterile, having increased risk of disease and illness, or suffering from adverse and sometimes fatal psychological consequences. Moreover, the legislature finds it likely that not all harmful effects associated with these types of medical procedures when performed on a minor are yet fully known, as many of these procedures, when performed on a minor for such purposes, are experimental in nature and not supported by high-quality, long-term medical studies.” Despite these purported concerns, the state prohibits these treatments only for one use — gender-affirming healthcare. Yet, in an amicus brief filed with the Court, the American Academy of Pediatrics, joined by more than a dozen other medical and mental health organizations, asserted that, “Empirical evidence indicates that gender-affirming care, including the prescription of puberty blockers and hormone therapy . . . can alleviate clinically significant distress and lead to significant improvements in the mental health and overall wellbeing of adolescents with gender dysphoria.”
- Procedural History: In 2023, three transgender minors, their parents, and a doctor sued several Tennessee officials in the U.S. District Court for the Middle District of Tennessee. The U.S. Department of Justice intervened to support the plaintiffs under a federal law that permits the Attorney General to sue to address equal protection violations. The district court judge found that that the ban “discriminates on the basis of sex and that transgender persons constitute a quasi-suspect class” and was therefore “facially unconstitutional,” and issued a preliminary injunction. The U.S. Court of Appeals for the Sixth Circuit overturned the judge’s decision in the case and stayed the injunction, allowing the ban to go into effect. The Supreme Court granted certiorari in June 2024.
- Questions Presented: Whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause of the 14th Amendment.
- What Happened at Oral Argument: Both U.S. Solicitor General Elizabeth Prelogar, and counsel for the three transgender minors, Co-Director of the ACLU’s LGBT & HIV Project Chase Strangio (whose appearance marked the first time an openly transgender attorney appeared before the U.S. Supreme Court), argued that the Court should find that SB 1 makes a sex-based classification subject to intermediate scrutiny under the Equal Protection Clause, recognize transgender status as a suspect classification entitled to similar heightened scrutiny, or hold that SB 1 does not withstand even rational basis review. Applying heightened scrutiny based on sex or transgender status would require Tennessee (and other states imposing similar bans) to demonstrate that the law furthers an important government interest and that the means are substantially related to that interest. As Prelogar noted, the challenged law would not survive heightened scrutiny in part because it is underinclusive. Despite the state’s claim that puberty blockers and hormone treatments are too dangerous to adolescent health, those treatments are allowed for all medical purposes except when a minor seeks to affirm their gender identity in contrast to the gender they were assigned at birth. “Thus, for example, a teenager whose sex assigned at birth is male can be prescribed testosterone to conform to a male gender identity, but a teenager assigned female at birth cannot.” Tennessee makes this classification explicit by justifying SB 1 as “encouraging minors to appreciate and not be disdainful of their sex.” Justice Alito expressed skepticism about the medical validity of gender-affirming healthcare and at various points attempted to include evidence that had neither been admitted in the original district court case or otherwise briefed, leading Prelogar to respond that, “There is a time and place for that inquiry. It’s not here.” She argued that the Court’s role in this case is to determine the level of scrutiny and remand to the district court to figure out the factual record. Justice Alito, along with Justices Kavanaugh, Thomas, and Chief Justice Roberts, expressed concern about the Court’s role in evaluating such medical evidence and each suggested that it may be outside the Court’s proper role. This prompted Justice Jackson to express concern, saying “It is a bedrock in the Equal Protection framework that . . . where a legislature is drawing lines [using] suspect classifications . . . that’s a question for the Court.” She expressed concern that any suggestion that the Court should step away from that role will “[u]ndermine the foundational bedrock of equal protection.”
- Potential Impact: Three circuits courts have allowed gender-affirming healthcare bans enacted by multiple states to go into effect. These bans have proliferated and now, according to the Williams Institute, nearly 40 percent of trans youth ages 13-17 live in a state where they are denied potentially lifesaving medical treatment. If the Court upholds the ban in this case, it would remain in effect in Tennessee and would impact challenges to other states’ bans in courts throughout the country. It could also lead more states to pass these and even more draconian bans. During oral argument, Strangio noted that if this ban were upheld in the face of an equal protection challenge, then bans of gender-affirming healthcare for adults might also be constitutionally permitted, a position Tennessee Solicitor General Matthew Rice said the state would take.
For more information about the cases on the Court’s docket this term, make sure to listen to our Broken Law podcast (Episode 158 is our SCOTUS Preview) and catch the video of our SCOTUS Preview program.
The Supreme Court heard oral argument today in Glossip v. Oklahoma, a death penalty case involving a state’s admitted suppression of a key witness’s history of treatment for mental illness and prosecutors’ failure to correct that witness’s false testimony. The Court will decide whether this violates Richard Glossip’s due process rights and whether he will ultimately face execution or receive a new trial.
What You Need to Know
- Facts of the Case: Richard Glossip was sentenced to death in 1998 for allegedly hiring Justin Sneed to murder their employer, Barry Van Treese. A court overturned Glossip’s original conviction due to ineffective assistance of counsel. In 2004, Glossip was retried and again sentenced to death largely based on the testimony of Sneed, who admitted to committing the murder. Nearly 20 years later, Glossip obtained evidence in the possession of prosecutors at the time of his 2004 trial that Sneed had been treated by a psychiatrist and lied about it in his testimony and that the prosecutor falsely denied any advance knowledge of Sneed’s change in testimony regarding the use of a knife in the murder. This information, which prosecutors were required to disclose under Supreme Court precedent, could have been used by Glossip’s counsel to raise doubts about Sneed’s credibility. There is also evidence that Sneed had wanted to recant his testimony that Glossip hired him to kill Van Treese. The Oklahoma Attorney General opened an independent counsel investigation that found prosecutorial misconduct sufficient for the attorney general to conclude in 2023 that he could not, “stand behind the murder conviction and death sentence of Richard Glossip.”
- Procedural History: In 2023, the Oklahoma Court of Criminal Appeals (the highest criminal court in Oklahoma), denied Glossip’s motion to vacate his conviction, despite the Oklahoma Attorney General’s own motion submitted in support of Glossip’s motion. The Oklahoma Pardon and Parole Board denied Glossip clemency that same month. Glossip was scheduled to be executed in May 2023, but sought and was granted a stay of execution by the U.S. Supreme Court. Oklahoma filed a response in support of the stay. The Court subsequently agreed to review the case, and because the state supported Glossip’s position, appointed an amicus to defend the ruling of the Oklahoma Court of Criminal Appeals.
- Questions Presented: (1) Whether the state’s suppression of the key prosecution witness’s admission that he was under the care of a psychiatrist and failure to correct that witness’s false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it; and (4) whether the Oklahoma Court of Criminal Appeals' holding that the Oklahoma Post-Conviction Procedure Act precluded post-conviction relief is an adequate and independent state-law ground for the judgment.
- Potential Impact: The severity and finality of death as a punishment raises serious concerns about courts’ willingness to rely on byzantine post-conviction procedures to deny relief in cases where the integrity of the conviction or guilt of the individual are in question. As highlighted by the recent case of Marcellus Khaliifah Williams – a man who was executed despite an overwhelmingly strong claim of innocence and over the objections of the prosecutor’s office that originally prosecuted his case – there is concern that courts, including the U.S. Supreme Court, do not recognize the constitutional due process right of an innocent or wrongfully convicted person not to be killed by the state.
- What Happened at Oral Argument: This was an unusual oral argument before eight justices (Justice Gorsuch recused himself), where the petitioner and respondent were arguing the same side, with a Supreme Court-appointed amicus lawyer defending the Oklahoma Court of Criminal Appeals’ decision. Justices Alito and Thomas seemed focused on the procedural barriers that could prevent the Court from weighing in on the merits. Other justices’ questions were more squarely focused on the damage the alleged prosecutorial misconduct and constitutional violations might have caused to Glossip’s defense. Justice Sotomayor observed that the alleged constitutional violations, including failure of prosecutors to correct a witness’s false testimony, “is a significant thing. A jury would take that into account that a prosecutor had to stop the testimony to point out the lie.” In a case that could determine whether a man lives or dies, Justice Thomas began the morning by asking Glossip’s attorney why they had not interviewed the two prosecutors who tried his 2004 case, since “their reputations are being impugned,” and later suggested that the two prosecutors, whose alleged misconduct is central to the case, could have cleared up any ambiguity around the meaning of the previously undisclosed evidence. The two prosecutors had been interviewed during an independent investigation launched by the Oklahoma Attorney General, and, as Glossip’s attorney pointed out, had offered multiple inconsistent statements about the evidence. Justice Jackson asked whether it might not be appropriate to return the case to the state court for an evidentiary hearing. In a moment that elicited laughter in the otherwise somber proceedings, when told by the amicus lawyer that she offered a strong legal writing critique of the Oklahoma court’s opinion, Justice Kagan quipped, “I haven’t even started.”
The Supreme Court heard oral argument today in Garland v. VanDerStok, a case challenging the government’s authority to regulate “ghost guns” under the Gun Control Act of 1968. A ruling against the government, would make it easier to obtain and circulate unregistered firearms.
What You Need to Know
- Facts of this Case: In recent years, technological advances, including 3D printing, have made it easier for companies to manufacture and sell firearms parts kits, which buyers can assemble into working firearms within minutes using common hand tools. Unlike normal firearms, these “ghost guns” don’t have serial numbers and could previously be sold without licensing or background checks, making them attractive to people who cannot legally own weapons or plan to use them in crime. In 2022, the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) issued a new rule clarifying that ghost guns are “firearms” within the scope of the Gun Control Act of 1968 and thus must comply with the same requirements as commercially sold guns. Sellers challenged the rule arguing that the parts kits do not meet the statutory definition of “firearms.”
- Relevant Precedent & Background: In November 2023, the Fifth Circuit ruled that the ATF had exceeded its statutory authority in interpreting the Gun Control Act, reasoning that although the Act applies to “any weapon…which will or is designed to or may readily be converted to expel a projectile by the action of an explosive” as well as “frames or receivers” of those weapons, it does not apply to incomplete frames or receivers, or parts of weapons. Through its emergency docket, the Supreme Court allowed the ATF to continue enforcing the regulation while the litigation proceeded.
- Question Presented to the Court: Whether weapons parts kits that are designed to or may be readily completed, assembled, restored or otherwise converted to expel a projectile by the action of an explosive are “firearms” within the scope of the Gun Control Act of 1968.
- Potential Impact? A ruling against the government would increase the availability of untraceable, unlicensed firearms further exacerbating the gun violence crisis.
- What happened at the oral argument: During oral arguments, Justices Alito, Thomas, and Gorsuch expressed doubt that the plain meaning of a term could include its component parts, with Justice Gorsuch drawing a distinction between a pad and paper and a grocery list. Chief Justice Roberts and Justice Barrett appeared more receptive, with Barrett suggesting the better analogy would be a Hello Fresh kit for turkey chili. Meanwhile, Justices Jackson, Kagan and Sotomayor seemed inclined to defer to the government’s reasonable interpretation of the statue.
