by Jonathan Turley at Res ipsa loquitur — The thing itself speaks
The Trump administration made an interesting pivot on Friday in the major case on gender-transitioning legislation. The case involving the Tennessee ban on the use of puberty blockers and hormone therapy for transgender minors is expected to establish new and significant precedent in the area. The oral argument appeared to favor the state. The problem is that, if the Trump Administration were to withdraw its challenge, it would work against the interests of Tennessee and other states in seeking a final resolution before the Court. Accordingly, the Trump Administration created a type of Pushmi-Pullyu position: it renounced the Biden position and then retained the challenge by encouraging the Court to move forward with a final decision.
Roughly half of the states (24 states, to be exact) have banned hormone therapy for transgender youth. In July 2023, the Sixth Circuit Court of Appeals rejected challenges to such laws in Tennessee and Kentucky. The Supreme Court agreed to hear the case, now listed as U.S. v. Skrmetti.
Three transgender teens and their parents originally filed the Tennessee lawsuit against the state officials responsible for enforcing the ban. They argued that the state law, SB1, violates the Constitution because it prohibits doctors from prescribing puberty blockers and hormone therapy while allowing the use of the same treatments for other purposes.
The Biden administration supported their challenge with regard to the equal protection claim.
The problem is that the justices granted only the Biden administration’s petition for review on the equal protection question. While a lawyer for the families was allowed to argue in the December 4th oral arguments with the Biden Administration, a withdrawal of the case by the Trump Administration would have prevented the Court from issuing the opinions currently being written by the justices.
While the tradition had been for the federal government to maintain positions already argued before the Court by the prior administrations,…
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