The Supreme Court recently heard oral arguments on Tennessee’s controversial ban on gender-affirming care for minors, a legal battle that highlights a striking shift in conservative strategy. Historically resistant to foreign influence on U.S. law, conservatives now cite policies from European countries to defend restrictive measures against transgender healthcare. This surprising pivot has reignited debates about international influence on American policymaking and constitutional interpretations.
Europe’s Role in the Debate on Gender-Affirming Care
For years, conservatives in the U.S. fiercely opposed incorporating foreign laws and practices into domestic legal debates. Yet, Tennessee’s Attorney General, Jonathan Skrmetti, and other state officials are now leaning on medical reviews from European countries like Sweden, Finland, Norway, and the United Kingdom to justify bans on treatments such as hormone therapy and surgeries for minors experiencing gender dysphoria.
According to Skrmetti, these nations have expressed growing
caution about the risks associated with gender-affirming care for minors. He argues that their decisions reflect prudent, evidence-based policymaking. Tennessee’s law, passed in 2023, prohibits treatments designed to help minors identify with a gender different from their sex assigned at birth. This stance has drawn sharp criticism from advocacy groups and the Biden administration, which argue that such measures violate the Equal Protection Clause of the 14th Amendment.
The European Model: Caution or Overreach?
In recent years, several European countries have reevaluated their approaches to gender-affirming care. Sweden, for instance, has restricted the use of puberty blockers and hormone treatments for minors, citing concerns over long-term effects and insufficient evidence supporting their benefits. Similarly, the U.K.’s National Health Service (NHS) discontinued routine prescriptions of puberty blockers for minors and closed its flagship gender-affirming care clinic, following the findings of the Cass Review.
This review, led by Dr. Hilary Cass, revealed significant gaps in
research and highlighted the complexities surrounding gender dysphoria treatment. Cass concluded that existing studies lacked rigor and often failed to address other mental health issues in patients. These findings prompted calls for stricter guidelines, but European countries have stopped short of implementing outright bans like those seen in Tennessee.
Criticism of the U.S. Approach
Transgender advocates argue that conservatives’ reliance on European policies is both selective and misleading. While countries like Sweden and the U.K. advocate for more cautious approaches, they have not completely banned access to gender-affirming care for minors. Clinical trials and individualized treatment plans remain available, ensuring that care is tailored to patients’ needs.
Chase Strangio, an attorney with the American Civil Liberties Union, emphasized that Tennessee’s blanket ban lacks the nuance present in European policies. Strangio noted that European nations aim to minimize risks while preserving access to necessary treatments—a stark contrast to the sweeping restrictions imposed in Tennessee.
Conservative Shifts in Legal Strategy
The invocation of European medical guidelines marks a significant departure from past conservative rhetoric. During the 2000s, prominent figures like Justice Antonin Scalia and Justice Clarence Thomas vehemently opposed referencing foreign laws in U.S. court decisions. They argued that American legal principles should remain distinct and free from foreign “fads” or “fashions.”
This skepticism reached its peak during Justice John Roberts’ confirmation hearings in 2005 when some conservatives suggested impeachment for judges who relied on foreign precedents. Roberts himself distanced from such reliance, though he stopped short of endorsing punitive measures against his peers.
Now, the narrative has shifted. Conservatives defending
Tennessee’s law argue that European medical standards provide valuable evidence of the potential harms of gender-affirming care. This shift, however, has not escaped scrutiny. Critics, including LGBTQ+ advocacy groups, accuse conservatives of hypocrisy for embracing foreign practices when convenient while rejecting them in other contexts.
Judicial Responses to European References
U.S. courts remain divided on the relevance of European examples in cases involving gender-affirming care. In blocking Tennessee’s law last June, U.S. District Judge Eli Richardson dismissed the state’s comparisons to European policies. Richardson pointed out that no European country has implemented an outright ban on gender-affirming treatments, making Tennessee’s approach an outlier.
Federal judges in Indiana and Florida echoed similar concerns, rejecting attempts to equate recalibrated European policies with sweeping bans in the U.S. These rulings underscore the complexity of applying international practices to American legal disputes, particularly when constitutional rights are at stake.
Balancing Evidence and Policy in Healthcare
Advocates for gender-affirming care stress the importance of evidence-based policymaking that prioritizes patient well-being. While acknowledging the risks associated with puberty blockers and hormone therapies, experts like Strangio argue that informed consent and individualized care plans are more effective solutions than outright bans.
In Europe, these principles guide healthcare policies, ensuring that minors with gender dysphoria receive appropriate care while minimizing risks. Critics contend that Tennessee’s law disregards this nuanced approach, instead opting for a one-size-fits-all restriction that denies care to all transgender minors.
Conclusion: A Crossroads for U.S. Policy on Transgender Healthcare
The debate over Tennessee’s gender-affirming care ban highlights a broader clash between evolving medical standards and entrenched cultural divides. By citing European policies, conservatives have introduced a new dimension to the legal battle, challenging longstanding perceptions of foreign influence in U.S. law.
However, the selective use of international examples raises questions about consistency and intent. As the Supreme Court weighs the constitutionality of Tennessee’s law, the outcome could set a precedent for how evidence and policy intersect in shaping the future of transgender healthcare in America.
Frequently Asked Questions (FAQs)
1. Why are conservatives referencing European policies on gender-affirming care?
Conservatives argue that European countries’ cautious approaches to gender-affirming care support their stance that such treatments pose significant risks and lack proven long-term benefits.
2. How do European policies differ from Tennessee’s law?
While European countries like Sweden and the U.K. have tightened guidelines, they still allow access to gender-affirming care through clinical trials and individualized plans. Tennessee’s law imposes a complete ban on such treatments for minors.
3. What did the Cass Review conclude about gender-affirming care?
The Cass Review found that studies on gender dysphoria treatments were unreliable and emphasized the need for more comprehensive research. It also highlighted the importance of addressing coexisting mental health issues.
4. Have U.S. courts accepted European examples as valid evidence?
Some courts have acknowledged European policies but rejected their direct applicability to U.S. cases, noting significant differences in implementation and context.
5. What is the main argument against Tennessee’s ban?
Critics argue that the ban violates the 14th Amendment by discriminating based on gender. They also contend that it denies minors access to medically necessary care without considering individual circumstances.