Amicus Curiae Brief — United States, Petitioner v. Jonathan Skrmetti, Attorney General and Reporter for Tennessee, et al.

Nos. 23-477

In the Supreme Court of the United States

__________

UNITED STATES OF AMERICA,

Petitioner,

v.

JONATHAN THOMAS SKRMETTI, ATTORNEY GENERAL

AND REPORTER FOR TENNESSEE, ET AL.,

Respondents.

__________

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SIXTH CIRCUIT

__________

BRIEF OF THE ETHICS AND RELIGIOUS

LIBERTY COMMISSION AND THE

TENNESSEE BAPTIST MISSION BOARD AS

AMICI CURIAE SUPPORTING RESPONDENTS

__________

October 15, 2024

Jeffrey A. Hall

Counsel of Record

Ilya Shapiro

Marcella Burke

BURKE LAW GROUP

2001 L St. NW, Suite 500

Washington, D.C. 20036

(832) 968-7564

jeff@burkegroup.law

i

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... iii

INTEREST OF AMICI CURIAE ................................. 1

INTRODUCTION ........................................................ 2

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 5

I. THE CORE POINTS NECESSARY TO

RESOLVE THE CASE ARE FEW AND

NOT IN DISPUTE ............................................ 5

A. Sex means biological sex. ............................ 5

B. All agree about the nature of the

relevant medical interventions. .................. 7

II. SERIOUS GAPS IN KNOWLEDGE

UNDERMINE THE FEDERAL

GOVERNMENT’S CREDIBILITY AND

ARGUMENTS ................................................... 9

A. The federal government exploits the

absence of key definitions. ........................... 9

B. No one knows enough about the medical

interventions at issue to make the

conclusions the federal government

makes. ........................................................ 14

III.SB 1 COMPORTS WITH THE EQUAL

PROTECTION CLAUSE ................................ 17

A. Only two elements on the face of the

statute are critical to consider. ................. 17

ii

B. There is facially no discrimination

because the medical interventions are

never used on physically healthy minors

for the purposes here, regardless of sex

or transgender status. ............................... 19

C. Adding gender dysphoria into the mix

only confirms this conclusion. ................... 23

D. Using other endocrine conditions to

justify a constitutional entitlement

underlines the grisly nature of the

argument. ................................................... 26

IV.PARENTAL RIGHTS ARE WORTHY OF

RESPECT BUT DO NOT CREATE A

LEGAL ENTITLEMENT TO THE

MEDICAL INTERVENTIONS AT ISSUE .... 29

CONCLUSION .......................................................... 31

iii

TABLE OF AUTHORITIES

Cases

Bostock v. Clayton Cnty., 590 U.S. 644 (2020) .... 11, 23

Carey v. Population Servs., 431 U.S. 678

(1977) ...................................................................... 22

City of Cleburne v. Cleburne Living Ctr., 473

U.S. 432 (1985) ....................................................... 23

L.W. ex rel. Williams v. Skrmetti, 679 F.

Supp. 3d 668 (M.D. Tenn. 2023) ............................ 21

Parham v. J.R., 442 U.S. 584 (1979)......................... 30

Pierce v. Soc’y of Sisters, 268 U.S. 510 (1925)........... 30

Stanley v. Illinois, 405 U.S. 645 (1972) ..................... 30

United States v. Salerno, 481 U.S. 739 (1987) .......... 25

Codes

Tenn. Code Ann. § 39-17-430 .................................... 20

Tenn. Code Ann. § 68-33-101 .................................... 29

Tenn. Code Ann. § 68-33-102 ................................ 7, 17

Tenn. Code Ann. § 68-33-103 .......................... 7, 17, 24

Other Authorities

AM. PSYCHIATRIC ASS’N, DIAGNOSTIC AND

STATISTICAL MANUAL OF MENTAL

DISORDERS, TEXT REV. (5th ed. 2022) .................... 10

Br. of Do No Harm as Amicus Curiae

Supporting Appellants, Loe v. Texas, No.

23-0697 (Tex.) (Dec. 22, 2023) ............................... 11

iv

Olivia T. Van Gerwen et al., Anatomical and

Sexual Health Considerations among

Transfeminine Individuals Who Have

Undergone Vaginoplasty: A Review, 33 Int’l

J. of STD & AIDS 106 (Feb. 2022) ......................... 15

S. BAPTIST CONV., THE BAPTIST FAITH &

MESSAGE (2000) ........................................................ 2

S. Baptist Conv., The God-Given Rights and

Responsibilities of Parents (June 12, 2024),

https://www.sbc.net/ resourcelibrary/resolutions/on-the-god-given-rightsand-responsibilities-of-parents/ ......................... 1, 30

Sabine Müller, Body Integrity Identity

Disorder (BIID)—Is the Amputation of

Healthy Limbs Ethically Justified?, 9 AM. J.

BIOETHICS 36 (2009) ............................................... 25

Travis Amengual et al., Readiness

Assessments for Gender-Affirming Surgical

Treatments: A Systematic Scoping Review

of Historical Practices and Changing

Ethical Considerations, 13 FRONTIERS IN

PSYCHIATRY 1006024 (Oct. 2022) ........................... 13

World Health Org., Gender Incongruence and

Transgender Health in the ICD,

https://www.who.int/standards/classificatio

ns/frequently-asked-questions/genderincongruence-and-transgender-health-inthe-icd ..................................................................... 13

1

INTEREST OF AMICI CURIAE1

The Ethics and Religious Liberty Commission

(ERLC) is the moral concerns and public policy entity

of the Southern Baptist Convention (SBC), the nation’s largest Protestant denomination, with nearly 13

million members in roughly 45,000 churches and congregations. The ERLC is charged by the SBC with addressing public policy affecting such issues as religious

liberty, marriage and family, the sanctity of human

life, and bioethics.

The Tennessee Baptist Mission Board is a state

convention entity in partnership with the SBC. It has

over 3,200 affiliated churches, and it shares the values

and interests of the ERLC.

Amici affirm that God created humans, the crowning work of His creation, as male and female. The gift

of sex and gender, being one and the same, is part of

the goodness of God’s creation. A physical body is an

integral part of a human being. The bodies of children,

which are sexually differentiated from the moment of

conception, naturally develop into sexually mature

adult bodies through the process of puberty as part of

God’s design.

Amici submit this brief because this case implicates

fundamental truths2 that Southern Baptists hold dear,

1 Rule 37 statement: No part of this brief was authored by any

party’s counsel, and no person or entity other than amici funded

its preparation or submission.

2 Numerous resolutions and other statements of the Southern

Baptist Convention have expressed these ideas drawn from Scripture, most recently in the resolution “The God-Given Rights and

Responsibilities of Parents” (June 12, 2024), https://www.sbc.net/

resource-library/resolutions/on-the-god-given-rights-and-responsibilities-of-parents/ (“2024 Resolution”). See also Genesis 1:26–

2

which coincide with the legal arguments. First, that

biological sex is not only immutable but also part of the

goodness of God’s creation. Second, that children are a

blessing from the Lord. Third, that government has a

responsibility to restrain evil and promote the good of

its people, including the young and vulnerable.

Accordingly, amici have an interest in ensuring

that governments protect children’s developing

healthy bodies, including by prohibiting medical procedures that refashion healthy bodies based on the

children’s perceived or desired gender.

INTRODUCTION

This lawsuit and the use of the medical interventions at its heart raise existential questions about the

nature of humankind. The constitutional analysis depends on obscure and contested medical jargon. With

so much at stake, it is easy for the questions to seem

intractable, for the conflict to seem like a fight between

medicine and politics, and for the answers to seem to

depend on how the relevant values are abstracted.

Much will not be resolved by this lawsuit.

But critical points can be made plainly, and they

are more than enough to resolve the issues here. There

are essentially two views about Tennessee’s law. Tennessee can rightly say that no physically healthy adolescents receive the medical interventions at issue to

change their appearance, regardless of their sex or

how they identify. By contrast, the federal government

says that because physically ill children receive those

same medicines to fix their underlying illnesses, some

27; Romans 13:1–4; 1 Peter 2:13–14; S. BAPTIST CONV., THE BAP-

TIST FAITH & MESSAGE (2000).

3

physically healthy children must be permitted to use

those medicines to induce illness just for the effects on

appearance. The first view protects all children and

adolescents equally; the second is ghastly. These simple points make clear that Tennessee’s law does not

violate the Constitution.

SUMMARY OF ARGUMENT

Tennessee’s law, Senate Bill 1 (SB 1), prohibits

medical procedures intended to conform a minor’s appearance to an identity inconsistent with the minor’s

biological sex. The federal government claims that

denying two medical interventions—so-called “puberty blockers” and cross-sex hormones—to minors

with gender dysphoria constitutes sex and

transgender-status discrimination. It argues that this

violates the Equal Protection Clause because SB 1 denies to minors who identify as transgender treatments

they could receive for reasons other than gender dysphoria.

While this lawsuit raises a litany of peripheral issues, only two control the outcome, and the relevant

points about both are beyond dispute. First, sex means

biological sex for all purposes in this case because the

law affects only minors who have no disorders of sex

development. Second, the nature of the medical interventions at issue is uncontested. They affect the development of primary and secondary sex characteristics,

and they are not normally used on adolescents absent

a hormonal imbalance or for birth control.

Additionally, what the purported experts advocating these interventions do not know is also important.

Neither the government nor those experts can provide

a clear definition of the gender terms at issue. The

4

ambiguity clears the way for an expansion of the entitlement sought here in the future. Also, even as the

parties heavily dispute the benefits and risks of the

medical interventions, they do not dispute that both

are largely unknown or that the interventions necessarily compromise sexual and reproductive function

(for some minors, permanently). The gaps undermine

the credibility of the federal government’s position.

With this background, the equal protection analysis goes quickly. SB 1 precludes providing healthy adolescents with puberty blockers and cross-sex hormones to make them appear different than their biological sex. But Tennessee law already prevents

healthy boys from seeking testosterone to conform

them to their sex. Healthy girls do not seek estrogen

for that purpose, and neither boys nor girls use puberty blockers for that. So Tennessee does not treat

similarly situated adolescents differently. An adolescent’s gender dysphoria is irrelevant under this analysis because the law does not hinge on it and neither do

any comparisons. And the federal government cannot

point to the interventions being used for other endocrine disorders as a rationale to allow physically

healthy adolescents to make themselves ill.

The lifelong harm caused by these interventions

confirms the wisdom of the Court in not taking up the

parental-rights question addressed below. Parents do

not have the right to prevent their children from maturing into physically healthy adults by treating gender dysphoria with the medical interventions at issue

here.

5

ARGUMENT

To evaluate the legal merits of the federal government’s claim, only two points need be set out up front,

in areas where we can say something definite and beyond dispute. Besides that, a few additional points are

worth establishing at the start; they further demonstrate that the federal government and the purported

experts on which it relies have no more insight than

the state of Tennessee. It is then straightforward to

show in multiple ways that SB 1 comports with the

Equal Protection Clause. Indeed, it equally protects

and respects the integrity of all adolescent bodies.

I. THE CORE POINTS NECESSARY TO RESOLVE THE CASE ARE FEW AND NOT IN

DISPUTE

A. Sex means biological sex.

The federal government’s claims of sex and

transgender-status discrimination depend, unsurprisingly, on what sex means. Unlike in other contexts

(such as employment discrimination) where facts may

be uncontested or simplistic perceptions suffice, here

the disputed medical and scientific definitions can control outcomes. The parties do not dispute that much.

The scientific concepts of biological sex and puberty

are, after all, foundational to the study and practice of

medicine. J.A. 481, 485, 611. Sex is the most significant differentiator between human beings. See J.A.

611–12. A patient’s sex serves as a critical diagnostic

criterion used in every medical setting and practice

area. Many medical conditions have different rates of

occurrence and presentations in males and females,

and indeed, many conditions are effectively or truly

unique to only one sex—including some of those used

6

in arguments in this case. See J.A. 611–12. Sexual development in adolescence, puberty, represents one of

the most central developmental periods in a human’s

life. J.A. 485. The experts on both sides agree that a

decision to intentionally interfere with this process is

a weighty one.

The definition of sex is nevertheless disputed here.

Human sex biologically refers to a person’s role in reproduction, whether the person produces male or female gametes. See J.A. 481, 743. But the production of

healthy gametes is determined by multiple biological

factors and functions—chromosomal, hormonal, and

anatomical. See J.A. 743–47 (full discussion of development). The whole human body is designed around

and displays the difference, including in primary and

secondary sex characteristics. J.A. 485–86. A small

portion of the population has disorders of sex development where these complex systems go awry and some

biological factors appear to be misaligned. See J.A.

482–84. Patients suffering from those rare conditions

may externally appear ambiguous or “intersex,”

though there is no third sex. See id.; J.A. 107. Because

of this possibility, the government and plaintiffs’ experts prefer to speak of “sex assigned at birth” rather

than biological sex because a person’s apparent sex

may not reflect some biological markers. See J.A. 378.

Patients suffering from such conditions deserve the

dignity of being described as male or female despite

their compromised biological function. A few such

cases does not impugn the necessity and utility of recognizing a robust biological dichotomy that controls

human differentiation.

Yet here, this debate is worse than mere pedantry.

Neither this case nor the law at issue have anything to

7

do with intersex conditions or disorders of sex development. They concern only physically healthy minors.

SB 1’s restrictions do not apply to treating any “congenital defect,” physical “disease,” or any “disorder of

sex development.” Tenn. Code Ann. §§ 68-33-102(1);

68-33-103(b)(1). Further, none of the plaintiffs (or envisioned beneficiaries) have any such condition. See

J.A. 27–37. “Sex assigned at birth” simply means biological sex for all purposes here. The federal government’s dogmatic insistence on using the term to suggest ambiguity serves only to strategically obfuscate a

core element of the case.

B. All agree about the nature of the relevant

medical interventions.

The medical interventions at issue here are the

other part of the equation. The federal government

and plaintiffs’ experts defend two.

First, so-called “puberty blockers”—more formally,

gonadotropin-releasing hormone (GnRH) agonists—

down-regulate and inhibit the hypothalamic-pituitarygonadal axis, which reduces the production of the endogenous sex hormones that cause puberty to progress. J.A. 495; 756. Put simply, in adolescents they

arrest natural puberty by blocking natural hormonal

signaling.

Second, cross-sex hormones are the primary sex

hormones from one sex—in males testosterone and in

females estrogen—given to the opposite sex. J.A. 769.

Natal sex hormones result in the development of reproductive and sexual function in addition to secondary sex characteristics—sex-distinctive physical features not directly involved in reproduction, including

fat distribution, body and facial hair, and vocal

8

register. J.A. 613–14. They also affect all other bodily

systems, from brain development to bone development. J.A. 612–14. When given to the opposite sex,

they create some of the secondary sex characteristics

from the sex that primarily produces them. J.A. 517.

Cross-sex hormones cannot make all physical features

appear to be fully of the opposite sex, and they cannot

create biological functions, including the reproductive

function, of the opposite sex. See J.A. 517–23; 614.

They do not make a biological male into a biological

female or vice-versa.

Some people suffer from hormonal imbalances,

having sex hormone levels outside the normal range

for one’s sex. J.A. 519, 770. Many doctors across practices test and prescribe such hormones to restore naturally occurring physiology by fixing those levels. Id.

As the government and plaintiffs’ experts stress, the

interventions at issue here are indeed used for many

conditions. For instance, primary care physicians and

specialists regularly prescribe hormone replacement

therapy for males with low testosterone or females

with low estrogen. Pediatric endocrinologists prescribe

hormonal therapies for children and adolescents with

rarer hormonal conditions, including testosterone for

delayed puberty in boys and estrogen for primary ovarian insufficiency, hypogonadotropic hypogonadism, or

Turner’s Syndrome in girls. J.A. 500–01, 519. They

also prescribe testosterone suppressants to girls with

polycystic ovarian syndrome, which causes excess testosterone and symptoms like excess facial hair. J.A.

100. And they prescribe puberty blockers to treat central precocious puberty (the premature initiation of

puberty by the central nervous system). J.A. 120. Additionally, primary care physicians, pediatricians, and

gynecologists regularly prescribe certain forms of

9

estrogen and progesterone to alter women’s reproductive function for birth control. J.A. 100.

Although the parties dispute the appropriateness

of using these medical interventions to treat gender

dysphoria—including the importance of none of them

being approved by the FDA for that purpose—two additional points beyond dispute are relevant. First, neither the government nor the experts note any example

of these treatments being used on adolescents who do

not have a hormonal imbalance (other than, if even relevant, birth control). Second, even though many physicians prescribe these drugs and know their power

and danger, only a small subset are willing to use them

in the way the federal government seeks.

II. SERIOUS GAPS IN KNOWLEDGE UNDERMINE THE FEDERAL GOVERNMENT’S

CREDIBILITY AND ARGUMENTS

A. The federal government exploits the absence of key definitions.

The government and plaintiffs’ experts defend the

medical interventions at issue as necessary to “treat”

a psychiatric condition. As they assert, some adolescents suffer from gender dysphoria, meaning “clinically significant distress resulting from incongruence

between [the adolescent’s] gender identity and the sex

assigned at birth.” Pet. Br. at 3; J.A. 380, 998–99. The

incongruence must have persisted for at least six

months and be accompanied by “clinically significant

distress or impairment in social, occupational, or other

important areas of functioning.” J.A. 125–26.

The federal government and plaintiffs’ experts assert that they draw the definition for gender dysphoria

straight from the Diagnostic and Statistical Manual of

10

Mental Disorders (DSM)—the manual used by psychiatrists to diagnose mental disorders. J.A. 60, 125, 380,

1001. But the government and those experts do not define any of the constituent terms further—particularly, “gender,” “gender identity,” or “transgender”—

including because the government’s joint appendix inexplicably drops two of the expert declarations that addressed those terms in part below. Instead, we are left

with the threadbare allegation in the government’s

complaint-in-intervention that “[g]ender identity refers to a person’s core sense of belonging to a particular

gender, such as male or female.” J.A. 60. The federal

government and plaintiffs’ experts dogmatically assert

that gender identity is “innate” and “immutable.” Pet.

Br. at 29; J.A. 1026–27. But they do not know why,

only theorizing that there might be an unidentified biological basis. J.A. 1027.

The DSM upon which the federal government bases its case approaches gender issues differently. The

“experienced/expressed gender” that conflicts with sex

is “the public, sociocultural (and usually legally recognized) lived role.” AM. PSYCHIATRIC ASS’N, DIAGNOSTIC

AND STATISTICAL MANUAL OF MENTAL DISORDERS,

TEXT REV. 511 (5th ed. 2022). “Gender identity” is separately defined, but not used within the definition of

gender dysphoria, as “a category of social identity.” Id.

In the DSM, gender and gender identity are largely

public, social concepts, and “[b]iological factors are

seen as contributing, in interaction with social and

psychological factors, to gender development.” Id.

The federal government’s redefinition of gender

identity (with no supporting authority) and its failure

to define other terms raise many tough questions. For

one, how can a socially and culturally contingent role

11

comprise an internal sense that is innate and immutable? These difficulties magnify that the federal government and the plaintiffs’ experts are making a philosophical argument (if not one of belief) rather than a

medical or scientific one. The Court has not yet embarked on this journey of discovery. See Bostock v.

Clayton Cnty., 590 U.S. 644, 655; id. at 686 & n.6, 715

(2020) (Alito, J., dissenting) (noting the lack of legally

applicable definition). And it should not do so. These

problems overshadow the government’s attempts to

establish transgender status as entitled to heightened

scrutiny, but they more critically undermine its claim

to any legal or medical credibility and authority.

Moreover, the federal government’s dissembling

appears to be strategic and intentional. By deeming

the gender identity that causes dysphoria innate and

immutable, the government makes gender identity appear closer to a status justifying constitutional entitlement. It makes the condition appear more like a physical one amenable to invasive physiological interventions aimed at organs other than the brain (rather

than psychiatric treatment). Simultaneously, the convenient omission of key definitions and testimony appears calculated to avoid criticism. After all, when experts have been clearer about gender ideology, their

self-contradictions have been exposed.3

Neither the federal government nor the “experts”

supply good answers to why a mental condition with

no known biological basis, which cannot be physically

diagnosed, ought to be treated with hormones like a

hormonal imbalance. And there is no reason to think

3 See, e.g., Br. of Do No Harm as Amicus Curiae Supporting

Appellants 14–17, Loe v. Texas, No. 23-0697 (Tex.) (Dec. 22,

2023).

12

that they will not change these amorphous definitions,

which serve for now as a convenient litigating position,

in the future. Stability is not guaranteed.

Indeed, forces are already at work to ensure that

any ground gained here will be expanded beyond

recognition. Although the federal government and the

few expert declarations it relies upon defend the medical interventions here only for gender dysphoria,

many in the “gender-affirming care” movement seek to

allow all adolescents having incongruence between

their gender identity and sex to obtain the interventions at issue here regardless of whether they feel any

distress at all. J.A. 628. In other words: medical “care”

without any underlying medical disorder. The “standard of care” has obviously trended in this direction as

the diagnostic and treatment criteria have been relaxed over time. J.A. 510–11. We now know the federal

government itself caused some of this movement by

pressuring the World Professional Association for

Transgender Health. See Tenn. Br. at 10. And the multitude of allegations that physicians are not following

even these increasingly flexible guidelines, see, e.g.,

J.A. 595, 628, 790–93, 940–42, suggests that numerous

gender-affirming specialists agree that the interventions should be dispensed on demand to any adolescent

identifying as transgender.

But some in the medical community have simply

stated as much. The World Health Organization publishes the International Classification of Diseases, a

diagnosis coding scheme used for medical billing and

reimbursement. J.A. 307, 678. Its eleventh revision

(ICD-11), introduced in 2018 and slated to be incorporated by U.S. medical authorities in the near future,

has redefined gender identity-related diagnostic

13

categories. They are now labeled “gender incongruence” and no longer part of “mental and behavioral disorders”; they are simply “conditions related to sexual

health” instead of “conditions of mental ill-health.”4 In

other words, the ICD-11 intends that people classified

as transgender may obtain the medical interventions

here without any diagnosed disorder or illness at all.

At least one of plaintiffs’ experts wholly agrees with

this approach. Reflecting on these changes, Dr. Aron

Janssen and several colleagues argue:

Requiring [transgender] people to have a diagnosis at all to obtain care, no matter the terminology used, is pathologizing. The practice of requiring a diagnosis continues to put mental

health and other medical providers in the position of gatekeeping, continuing the vestigial

historical focus on confirming a person’s gender

identity,

rather

than

trusting

that

[transgender] people understand their identities better than providers do.5

This trend undermines the idea that there has been

consistency for “decades,” Pet. Br. at 2, much less any

implicit promise that there will be stability in the future. The approach of gender care specialists metamorphosizes even while this litigation proceeds.

4 World Health Org., Gender Incongruence and Transgender

Health in the ICD, https://www.who.int/standards/classifications/frequently-asked-questions/gender-incongruence-andtransgender-health-in-the-icd. See also J.A. 628–29, 697–98.

5 Travis Amengual et al., Readiness Assessments for GenderAffirming Surgical Treatments: A Systematic Scoping Review of

Historical Practices and Changing Ethical Considerations, 13

FRONTIERS IN PSYCHIATRY 1006024 at *12 (Oct. 2022).

14

B. No one knows enough about the medical

interventions at issue to make the conclusions the federal government makes.

Resolution of this case and the legality of SB 1 does

not and should not depend on weighing the purported

mental health benefits of the medical interventions at

issue against the certain and potential harm from

them. To accept that narrow framing buys into the controversial philosophical view that a physically healthy

human body is of less value than a mental image. But

even accepting the government’s faulty premises, its

conclusions do not follow because the evidence falls

short. That is unsurprising. The Dutch Protocol on

which the medical interventions here are based came

into being barely 25 years ago, and protocols have

shifted substantially since. J.A. 510–511. Of course,

the calculus for even the dryest of statistical effects for

these lifelong interventions will be missing key factors.

The most prominent harms from the medical interventions are harms to sexual and reproductive function. While the parties dispute the frequency and severity, they do not dispute the general risk. Plaintiffs’

experts admit that cross-sex hormones of both kinds

can reduce or eliminate reproductive function—hence

the need for fertility preservation treatments and

warnings to adolescents contemplating such interventions. J.A. 124, 430. The hormones also interfere with

sexual function, the permanence of which is unknown.6 J.A. 430.

6 Although Christians believe that sexual activities are intended

for and should be confined to the marital union, the interventions

here in adolescence can have lifelong effects that extend into and

interfere with a healthy marriage.

15

Regarding puberty blockers, plaintiffs’ experts assert that they alone cause no permanent effects,

though the actual long-term effects of “pausing” puberty are unknown and disputed. J.A. 659. Regardless,

using them in conjunction with cross-sex hormones—

which almost always occurs—magnifies the loss of

function. J.A. 513. Puberty blockers are intended to be

administered early in puberty to stop the development

of naturally occurring secondary sex characteristics.

Pet. Br. at 5; J.A. 119. When they are administered at

the start (Tanner stage 2), they fully arrest natural puberty. J.A. 439. When followed by cross-sex hormones,

the primary sex organs undergo no sexual maturation

at all, trapping them in a pre-pubescent state. See J.A.

439; 763. That generally means that the patient will

have no sexual or reproductive function. J.A. 429–30;

760–63. Even the Endocrine Society Guidelines touted

by plaintiffs’ experts require that an adolescent receive

a warning about fertility loss in advance of puberty

blockers for precisely this reason. See J.A. 124. Further, especially for biological males, this stunted development makes later “sex-change” surgery more difficult, dangerous, and ineffective7—compromising even

some of the purported cosmetic benefits.

Plaintiffs’ experts also must acknowledge the limitations of the evidence of efficacy and of other harm.

The “data” upon which their conclusions rely is generally of “low quality” and observational. J.A. 111–12;

362–75; 589. Their clinical guidelines and conclusions

are developed from the personal experiences of the

7 See Olivia T. Van Gerwen et al., Anatomical and Sexual

Health Considerations among Transfeminine Individuals Who

Have Undergone Vaginoplasty: A Review, 33 Int’l J. of STD &

AIDS 106, 107 (Feb. 2022).

16

physicians who already accept the validity of genderaffirming hormone therapies. J.A. 114; 450; 976. Because those physicians are already convinced of the necessity, as befitting a philosophical commitment, they

also will not and (according to them) cannot conduct

higher-quality studies. J.A. 111–14. To them, not using their preferred interventions would be unethical;

because they know that gender identity is immutable,

they know gender dysphoria cannot be treated with

psychotherapy or non-physical interventions. Id.

Regarding the potential benefit most publicly discussed—reducing suicide risk for troubled teens—

plaintiffs’ experts can say nothing definite at all. J.A.

992. There are necessarily no long-term studies on the

harm or side effects of the interventions because they

are new. J.A. 810, 815. But one of plaintiffs’ experts

does acknowledge that cross-sex hormones medicalize

patients for life in the same way as other serious, lifelong medical conditions requiring careful management. J.A. 973. And for the harm that opponents of the

interventions identify—such as harm to brain, bone,

and cardiac development—the best the plaintiffs’ experts can say is that they are not sure. J.A. 966–69.

Thus, even before any constitutional analysis,

there should be trepidation with basing legal entitlements on medical arguments that spring more from

the federal government’s political commitments and

the particular beliefs of plaintiffs’ experts than the

data. Children and adolescents suffering from gender

dysphoria deserve more: compassion and care that accords with the reality of their bodies.

17

III. SB 1 COMPORTS WITH THE EQUAL PROTECTION CLAUSE

The federal government seeks to establish that

SB 1 denies to the minor plaintiffs below and others

like them the equal protection of the laws. It argues

that those suffering from gender dysphoria are prevented from obtaining the very same medical interventions that other adolescents are permitted to obtain for

other reasons. And it charges that Tennessee can defend its law only on grounds so generalized as to defeat

the purposes of the Equal Protection Clause.

Yet there are simple responses. A focus on two features on the face of the statute makes short work of

the equal protection inquiry. And this approach gets

around the parties’ dispute as to whether the law targets treatments or people. The question does not turn

on this. In fact, even taking the government’s own test

at face value, the inquiry into discrimination ends at

the beginning.

A. Only two elements on the face of the statute are critical to consider.

In this facial challenge to SB 1, two elements in the

statute itself control the equal protection analysis.

First, the law and the case concern only physically

healthy minors. As discussed, the law allows physicians to use the medical interventions at issue to treat

any “congenital defect, precocious puberty, disease, or

physical injury,” including any “disorder of sex development.” Tenn. Code Ann. §§ 68-33-102(1); 68-33103(b)(1). The federal government does not dispute

this limitation—in fact, it relies upon it in making its

arguments.

18

The distinction matters. The law does not preclude

all transgender minors from receiving puberty blockers or cross-sex hormones, only those who have no

physical condition necessitating them. That removes

one particularly sympathetic set of patients—those

who absent medical intervention (and possibly still after it) might have compromised or no natural sexual or

reproductive function—from the discussion. Instead,

all those affected are adolescents who have as normal

physical, sexual, and reproductive functioning as anyone, transgender or not.

Second, the instrumental purpose of the medical interventions at issue—“puberty blockers” and cross-sex

hormones—is cosmetic, i.e., for appearance’s sake. To

put it more scientifically, the interventions are intended to affect secondary sex characteristics that are

otherwise developed through natural puberty. While

the federal government argues that the physical

changes in appearance will produce mental health

benefits, the immediate aim of the interventions is

nevertheless to change appearance. As the government puts it, SB1 limits interventions sought to “induc[e] physiological changes, like secondary sex characteristics, that are ‘inconsistent with’ how society expects boys and girls to appear.” Pet. Br. at 22 (quoting

Tenn. Code Ann. § 68-33-103(a)(1)(A)). Plaintiffs’ experts describe the purpose and intended effect in the

same terms. J.A. 126, 975. The minor plaintiffs seek

the treatments they do so that they may appear to others as less like their biological sexes. See J.A. 27–37.

Indeed, researchers created the Dutch Protocol because “cosmetic aspects of medical transition [were]

perceived to be better when they occur earlier rather

than later in pubertal development.” J.A. 443.

19

The disputed medical interventions do not add any

biological, reproductive, or sexual functionality. If anything, as discussed above, puberty blockers and crosssex hormones cause a loss of function.

All these truisms do not to belittle the importance

of appearance generally or of appearing to be of one sex

or the other. Indeed, everyone in this litigation cares

because it is important. For Southern Baptists and

many other Christians, that God made humans male

and female entails that the biological sexes are different in a myriad of ways that reflect each sex’s unique

characteristics, including appearance. The government and plaintiffs genuinely feel that appearance

should not necessarily reflect one’s sex. But the distinction matters to the law in at least two ways. It affects the calculus under equal protection by affecting

the comparators. And relatedly, it affects the interests

involved. Correctly classifying the procedure as cosmetic immediately demonstrates that a constitutional

entitlement presents an uphill climb because governments routinely limit and regulate the availability of

such procedures, especially for minors.

B. There is facially no discrimination because the medical interventions are never

used on physically healthy minors for the

purposes here, regardless of sex or

transgender status.

On its face, SB 1 prohibits giving puberty blockers

and sex hormones to a healthy minor for the purpose

of cosmetically aligning the minor’s appearance with a

gender inconsistent with that minor’s sex. The federal

government asserts that Tennessee law “permits the

very same medical interventions when provided to

20

assist minors in physically conforming to their sex.”

Pet. Br. at 23 (emphasis in original). Does it? No.

Regardless of whether the asserted inequality

turns on sex or transgender status, the comparator for

the inequality would be, for sex hormones, 1) a physically healthy male without a hormonal condition being

prescribed exogenous testosterone to appear more

masculine, or 2) a physically healthy female without a

hormonal condition being prescribed exogenous estrogen to appear more feminine. The record lacks any evidence at all that this ever occurs. Plaintiffs’ experts

presumably should know (though their singular expert

pediatric endocrinologist is now relegated to a rebuttal

declaration). Yet none mention even the possibility of

such cosmetic sex-conforming treatments, much less

that any physicians practice them.

And for good reason. Obvious ethical problems present themselves when discussion turns to doctors prescribing powerful, primal hormones with life-altering

and lifelong consequences to youths so that they may

temporarily enhance their appearance. The idea that

a teenage bodybuilder longing for larger muscles could

get a testosterone prescription just to look better in the

mirror seems ludicrous. Common sense says that a

doctor so doing might lose his license.

That intuition would be correct. Tennessee has long

criminalized prescribing anabolic steroids (like testosterone) for “[e]nhancing performance in an exercise,

sport or game” or for “[h]ormonal manipulation intended to increase muscle mass, strength or weight

without medical necessity.” Tenn. Code Ann. § 39-17430. In other words, SB 1 did not need to prohibit testosterone “when provided to assist [males] in

21

physically conforming to their sex” because Tennessee

law already makes that illegal.

The district court recited a hypothetical that, in

light of this, comes out exactly the opposite of what it

thought: “Consider an adolescent, perhaps age 16, that

a physician wishes to treat with testosterone. Under

the challenged statute, is the treatment legal or illegal?” L.W. ex rel. Williams v. Skrmetti, 679 F. Supp. 3d

668, 693 (M.D. Tenn. 2023) (quoting Doe v. Ladapo,

676 F. Supp. 3d 1205, 1217 (N.D. Fla. 2023)). The key

additional question to “know the answer” is, must one

“know the adolescent’s sex”? Id. The actual answer:

No. If the testosterone is for cosmetic effects, the answer is always no.

The situation with estrogen differs only slightly.

Because exogenous estrogen does not feminize females

already having sufficient endogenous estrogen in the

same way that testosterone builds muscle, nothing

suggests that there is any demand for estrogen by biological (non-transgender) girls seeking feminization.

There is no female equivalent of steroids in the locker

room for estrogen.

At the same time, many female adolescents have a

ready supply of estrogen in the form of birth control.

J.A. 100. The estrogen in estrogen-based hormonal

birth control is not of the same form or concentration

as that given to males in cross-sex hormone therapy,

so it does not directly compare. See J.A. 518. But assuming it does enough, the general availability for a

non-cosmetic reason defeats any inference of inequality. Putting aside the difficulty of probing a teenager’s

stated rationale for seeking birth control, the Court’s

own contraception jurisprudence would suggest that

efforts by Tennessee to limit such contraception

22

through fine-grained inquiries into intent would encounter significant legal headwinds. See, e.g., Carey v.

Population Servs., 431 U.S. 678 (1977) (invalidating

state limitation on contraception for minors based on

right to privacy). And given that even with open access

no evidence of strictly cosmetic uses appears, there is

simply no analogue to the use prohibited by SB 1.

The comparison for puberty blockers resolves even

more cleanly. Again, nothing in the record supports

the idea that any physically healthy minor ever seeks

or uses puberty blockers to look more masculine or

feminine. Taken alone, puberty blockers effectively do

the opposite of masculinizing males and feminizing females by preventing the puberty that makes each distinctive. And given the dearth of the cosmetic sex hormone uses explored above, a sequential combined use

with puberty blockers also makes no sense.

This analysis defeats any idea of inequality or discrimination based on sex or transgender status solely

from the face of the statute and the minimal evidence

presented. As in cases involving pregnancy or abortion, only one side of the potential inequality needs to

or can be regulated. The sex- or status-reflected image

that would mark out inequality is hypothetical or illusory, so the inquiry ends. Here, at least one holds in

every event: minors of either sex and those who do not

identify as transgender do not seek the opposite treatments, legally cannot seek some, or would find them

pointless.

But even under the federal government’s preferred

framework, there is no inequality. The government requests that analysis occur under a two-step approach

starting with classification and proceeding to justification. See Pet. Br. at 25–26. Yet the analysis ends at

23

step one—there is simply no unequal classification

based on sex or transgender status. The Equal Protection Clause demands no more than that “persons similarly situated should be treated alike.” City of

Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439

(1985). And they are here.

The conclusion remains true even if the Court

adopts the approach in Bostock of switching just the

sex or transgender status (which effectively occurs together here) while holding everything else constant.

See 590 U.S. at 659–60; 671. Bostock’s but-for causation analysis from the Title VII context should not govern the broader constitutional text of the Equal Protection Clause. Yet even that exacting standard fails

to detect inequality here. No healthy boy seeking testosterone to appear more masculine could get it; no

healthy girl would seek estrogen to appear more feminine, and no boy or girl would use puberty blockers for

those respective purposes. Transgender status does

not change this analysis.

This analysis involves no justification or cost-benefit calculation, so no charge of conflating the merits

(Tennessee’s interest at step 2) with the initial classification (in step 1) has traction. And because discrimination does not exist, there is also no need to determine whether it would be invidious if it did. Simply

put, the basic charge of inequality falls apart based

just on the face of the statute.

C. Adding gender dysphoria into the mix only

confirms this conclusion.

The federal government uses a different chain of

logic. Under SB 1, adolescents with gender dysphoria

cannot obtain the same medications for that disorder

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as adolescents with physical ailments such as precocious puberty, delayed puberty, hypogonadism, and

hyperandrogenism can for those illnesses. It argues

that because gender dysphoria is defined in part based

on sex, and because only transgender people can suffer

from gender dysphoria, the denial of those medications

to treat that condition constitutes sex and

transgender-status discrimination. The above analysis, independent of these concerns, should already cast

doubt on the validity of this argument. But it can also

be straightforwardly proven wrong.

SB 1 does not limit the relevant medical interventions only for gender dysphoria. Instead, it precludes

the use of cross-sex hormones and puberty blockers for

cosmetic effects inconsistent with sex, whether because of gender dysphoria or not. Tenn. Code Ann.

§ 68-33-103(b)(2). Those with gender dysphoria are a

subset of those affected. The broader limitation serves

an important purpose. As discussed above, a push is

already underway to allow these interventions for anyone with gender incongruence—i.e., all adolescents

who claim transgender status, without any clinical diagnosis or disorder.

That the prohibition does not affect only those with

gender dysphoria removes even more planks from the

federal government’s claims. The affected adolescents’

having gender dysphoria is a necessary, not incidental,

element of its arguments. The government and plaintiffs’ experts stress the narrowness of the diagnosis

and the burdens associated with obtaining it to establish it as a serious medical condition. See Pet. Br. at 3–

4; J.A. 749–50. Even more, the government stresses

the harms of leaving the condition untreated and the

“benefits” of treating it to rebut Tennessee’s

25

justifications. Pet. Br. at 34–42. Yet that does nothing

to explain why the state cannot ban the interventions

at issue for transgender individuals without gender

dysphoria, who are not experiencing clinically significant distress. Because that class of individuals is significant in size (as plaintiffs’ experts recognize, see J.A.

156) and because there is a concerted push to provide

all the same interventions to them, the prohibition is

not illusory. So the government should not be able to

facially challenge SB 1. See United States v. Salerno,

481 U.S. 739, 745 (1987) (holding petitioner “must establish that no set of circumstances exists under which

the Act would be valid”).

That said, narrowing the focus to only those with

gender dysphoria does not help the federal government’s position on the law’s classification. That no one

prescribes these interventions for masculinizing boys

or feminizing girls does not change when considering

only boys or girls with body dysmorphia (distress over

one’s appearance). If anything, the approach diverges

even further from that for gender dysphoria. Anabolic

steroid use by males with body dysmorphia represents

a severe cause for concern, something itself to be

treated in psychotherapy, not a treatment for the condition. See J.A. 771, 776–77. More generally, the ethical problems of treating mental disorders with permanent physical alterations that reduce body functionality are well known, and such interventions are at best

highly controversial and disfavored.8 Gender dysphoria represents the only mental disorder for which any

significant number of physicians advocate for

8 See, e.g., Sabine Müller, Body Integrity Identity Disorder

(BIID)—Is the Amputation of Healthy Limbs Ethically Justified?,

9 AM. J. BIOETHICS 36, 37–43 (2009).

26

treatments intentionally impairing ordinary, healthy

development of bodily functions and organs.

D. Using other endocrine conditions to justify a constitutional entitlement underlines the grisly nature of the argument.

The federal government does not recognize the difference between the medical interventions being used

to treat a mental disorder, on the one hand, and physical illness, on the other. Tennessee is correct that they

are different “treatments,” but this technical or semantic conclusion is unnecessary. The purpose of the

prohibited interventions is to alter appearance—secondary sex characteristics—by either reducing hormonal function below normal parameters in healthy adolescents (puberty blockers) or by raising the cross-sex

hormone (androgens for girls and estrogen for boys) to

levels far above normal in healthy adolescents of that

sex.

That creates iatrogenic disease. Adolescents who

receive the medical interventions challenged here will

go from healthy to diseased levels of hormonal functioning that mimic (though are opposite) the diseases

being pointed to as comparators. Those formerly

healthy adolescents will functionally now have delayed puberty and hypogonadotropic hypogonadism

under puberty blockers. J.A. 758–60. And they will

functionally experience either hyperandrogenism

(mirroring conditions like polycystic ovary syndrome)

under exogenous testosterone for girls or hyperestrogenemia under exogenous estrogen for boys. J.A. 794.

The government argues that because adolescents

can treat those same diseases with puberty blockers or

hormones, adolescents with only gender dysphoria

27

must be able to, too. Yet when those diseases are

treated, instead of created, the puberty blockers or

hormones fix hormone levels that are biologically too

low or high for healthy adolescents. See J.A. 100, 756–

57, 760, 769–70, 779. They restore functionality. None

of the conditions used by the government or plaintiffs

for comparison purposes lack these features. Even for

the one disease noted by any party as having a cosmetic effect fixed by treatment—excess facial hair reduced by testosterone suppression for girls with polycystic ovarian syndrome, Pls.-Resps. Br. at 6—the

treatment fixes an underlying hormonal imbalance

(excess testosterone) that has many other detrimental

effects beyond the mere cosmetic (the same effects as

for girls receiving exogenous testosterone, including

infertility).

Pointing to the fact that those diseases are treated

by the medical interventions sought here as justification for requiring that they be given to patients with

only gender dysphoria reveals that the government’s

position is truly untenable. The government believes

the following: physically healthy adolescents have a

constitutional right to induce deleterious medical conditions purely for the cosmetic side effects because

other adolescents are permitted to treat the very same

symptoms by fixing those deleterious medical conditions. Because some adolescents hope to escape illness,

other adolescents must have the right to create it.

This path of thinking is horrifically wrong, and

tragic. The idea turns the concept of medicine on its

head. Objective, scientific differences between the

sexes, including different healthy ranges for hormones

at appropriate ages, are not “stereotypes.” When they

are ignored and manipulated, awful things happen.

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When hormones are unbalanced, the patient suffers,

as all the side effects for hormonal treatments in this

case demonstrate. Yet the federal government and

plaintiffs seek an entitlement to choose to define

“healthy.” They argue that they must be able to redefine what is biologically normal to conform it to a patient’s mental self-image and that the Constitution

compels this result. In other words, the law must allow

people to choose their biological realities.

Put this way, the debate is not merely legal, but

philosophical, moral, and even religious. The government shies away from acknowledging as much. This

unmanageable scope follows from treating a mental

disorder without any understandable biological basis

on par with physical illness. Recognizing this dynamic

is not necessary to resolve the legality of SB 1. But it

demonstrates how foolish it is to press the Equal Protection Clause, ratified in 1868, to resolve the question

in favor of the government’s position. That Clause does

not require states to place transhumanist ideals on

footing equal or superior to the belief in objective truth

that has allowed us to have modern medicine in the

first place—especially when the consequences of accepting the premise are permanent and severe for adolescents.

While the conclusions reached here about equal

protection do not depend on Tennessee’s demonstrating an important or compelling interest, the analysis

rebuts charges that the law springs from invidious stereotypes and discrimination. The federal government

focuses on two of many purposes in SB 1 as demonstrating ill will toward transgender adolescents: that

the state “has a legitimate, substantial, and compelling interest in encouraging minors to appreciate their

29

sex, particularly as they undergo puberty” and in prohibiting medical procedures that “might encourage minors to become disdainful of their sex.” Tenn. Code

Ann. § 68-33-101(m).

Tennessee should be allowed to take a stand in the

debate by proclaiming that a body functioning healthily and according to its sex is a good thing. But this is

not just a philosophical position. As shown, the consequences of a physically healthy adolescent not “appreciat[ing]” and instead “disdain[ing]” the adolescent’s

sex are concrete and severe. It leads to medical interventions that create systemic hormonal imbalances in

search of cosmetic side effects. It leads to lost reproductive and sexual function, as well as a host of other

lifelong problems that are not fully known. And it

leads to lifelong medicalization, for continued hormonal treatments (and post-operative care for invasive

sex-change surgery) and for the permanent side effects

that may accompany those treatments even if discontinued. J.A. 436–37. Far from uninformed stereotypes,

the state’s stated purposes show true concern for adolescents at risk of being pushed into the pipeline of

“gender-affirming care.”

IV.PARENTAL RIGHTS ARE WORTHY OF RESPECT BUT DO NOT CREATE A LEGAL ENTITLEMENT TO THE MEDICAL INTERVENTIONS AT ISSUE

The foregoing analysis also demonstrates the

Court’s wisdom in not examining whether parental

rights through the Due Process Clause require allowing the medical interventions that SB 1 forbids. The

Court has long respected the rights of parents in the

care, custody, and nurture of their children, including

30

through religious upbringing. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651 (1972); Pierce v. Soc’y of Sisters,

268 U.S. 510, 532 (1925). Yet a “state is not without

constitutional control over parental discretion in dealing with children when their physical or mental health

is jeopardized.” Parham v. J.R., 442 U.S. 584, 603

(1979). Southern Baptists agree that these God-given

parental rights and responsibilities “are not absolute,

and the state has a compelling interest to intervene in

certain situations where children are being abused,

neglected, or endangered.”9

Here, the proposed medical interventions cross numerous lines that justify the limits SB 1 imposes. The

potential for abuse in a parent’s subjecting an otherwise healthy child to medical interventions that create

serious hormonal diseases is patent. The situation

worsens when the choice imposes permanent effects.

The point of the state’s respecting parental rights is to

allow parents to guide their children into adulthood,

when those children have their own, independent

rights—including to have their own relationships and

bear their own children, see, e.g., Stanley, 405 U.S. at

651. The medical interventions here, when started in

adolescence, can permanently deprive them of reproductive and sexual function and can medicalize them

for life. J.A. 521–22. When parents choose to deprive

their children now of opportunity in the future, it creates a tension between parental rights and their corresponding responsibilities. That is especially true

when parents seek such permanent medical intervention for mental health. See Parham, 442 U.S. at 606.

Again, the state need not countenance such harm.

9 2024 Resolution, supra n.2.

31

CONCLUSION

Tennessee was wise not to accept the philosophical

precommitments that lead to physicians creating lifelong disease in adolescents. The beauty of an integral

human body should not be destroyed to chase a mental

image. The federal government has not shown that the

Constitution requires allowing these medical interventions. Even under the narrowest of inquiries, there is

no discrimination, so the law is constitutional.

With SB 1, Tennessee fulfilled the state’s obligation to protect life and the vulnerable amongst us, as

revealed in Scripture and spoken to by numerous resolutions affirmed at annual gatherings of the Southern

Baptist Convention.

The Court should affirm the judgment of the Sixth

Circuit.

Respectfully submitted,

Jeffrey A. Hall

Counsel of Record

Ilya Shapiro

Marcella Burke

BURKE LAW GROUP

2001 L St. NW, Suite 500

Washington, D.C. 20036

(832) 968-7564

jeff@burkegroup.law

October 15, 2024