Justice Clarence Thomas on Wednesday said 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.