In Supreme Court Battle Over Transgender Rights, Conservatives Look To An Unlikely Ally: Europe

When the Supreme Court hears oral arguments Wednesday in a major fight over Tennessee’s ban on gender-affirming care for minors, conservatives defending the law plan to point to an unexpected place as a model: Europe.

Two decades ago, Republicans appeared allergic to foreign influence on the U.S. legal system, decrying Supreme Court decisions that looked abroad — often to Europe — for guidance on culture-war issues like gay rights and the death penalty.

Now, that aversion seems to have eroded. Lawyers and legislators on the right are embracing recent moves to restrict some types of care for transgender minors in four European countries. And these American conservatives are using them as evidence that new bans or limits on such treatment in Tennessee and 25 other states are not only prudent — but also consistent with the U.S. Constitution.

“Systematic reviews by national health authorities in Sweden, the United Kingdom, Finland, and Norway have all concluded that the harms associated with these interventions are significant, and the long-term benefits are unproven,” Tennessee Attorney General Jonathan Skrmetti wrote in defense of the state’s ban on transition-related medical care for minors.

The law, passed last year, bans hormone treatments or surgeries for minors that would allow them “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.” Challengers to the law, along with the Biden administration, asked the high court to declare the measure unconstitutional after a federal appeals court upheld it. The challengers say the law discriminates on the basis of gender in violation of the 14th Amendment.

A brief from Tennessee state officials defending the law quotes no fewer than three times a passage from the appeals court ruling that upheld the law, saying: “Some of the same European countries that pioneered these treatments now express caution about them and have pulled back on their use.”

The conservatives’ sudden affection for European medical standards and judgments rankles some transgender advocates, who say it’s a hypocritical about-face.

“I think it’s rich that folks that don’t look to Europe for anything, especially socialized medicine, for the guideposts on how to move forward with public policy, are citing any kind of medical policy” from Europe, said Sasha Buchert of Lambda Legal, an LGBTQ+ rights advocacy group.

Conservatives combat foreign influence on U.S. law

The conservative crusade against U.S. judges taking note of legal developments overseas reached a fever pitch in the 2000s.

“It certainly was extreme for a while,” said Austen Parrish, dean of the University of California at Irvine law school. “You had Supreme Court justices that were being threatened with death threats. ... There was this great pushback on anything foreign, because somehow it was giving up on American sovereignty, and we had to chart our own path.”

In 2005, as the anti-foreign-law frenzy was at its height, Sen. Tom Coburn (R-Okla.) suggested at confirmation hearings for John Roberts as chief justice that U.S. judges who cited foreign precedents should be subject to impeachment. Roberts pledged not to rely on foreign law himself but said removing judges who did would be a step too far.

“I’d accuse them of getting it wrong on that point, and I’d hope to sit down with them and debate it and reason about it,” Roberts said.

That same year, Justices Antonin Scalia and Stephen Breyer even faced off in a public debate that aired arguments for and against its use.

Justice Clarence Thomas also weighed in, declaring in a 2002 opinion a distaste for foreign influence that seemed to extend beyond legal rulings. “This Court … should not impose foreign moods, fads, or fashions on Americans,” he wrote in a death penalty case.

In the court’s seismic 2022 ruling overturning the federal constitutional right to abortion, the conservative majority tiptoed around the foreign law issue. Justice Samuel Alito’s majority opinion noted that the Mississippi legislature that passed the abortion restriction at issue in that case found that the U.S. was one of only seven countries that permitted elective abortion after 20 weeks of pregnancy. He then relegated further discussion of that issue to a footnote.

The court’s liberal minority unapologetically embraced international practice as a reason to preserve Roe v. Wade. “American abortion law has become more and more aligned with other Nations,” Justices Breyer, Sonia Sotomayor and Elena Kagan wrote, adding that the nuances of those laws are important. “Most Western European countries impose restrictions on abortion after 12 to 14 weeks, but they often have liberal exceptions to those time limits, including to prevent harm to a woman’s physical or mental health.”

Some European countries rethink gender-affirming care

Complaints that some doctors were handing out puberty-blocking medication too widely have triggered reexamination of treatment practices in the United Kingdom, Sweden, Finland and Norway in recent years.

The highest-profile retreat came in the U.K., following a broad review of gender-affirming care by the National Health Service. The head of the review, Dr. Hilary Cass, concluded that studies about treatment for gender dysphoria were unreliable, that doctors were often not tending to patients’ other issues and there was a lack of attention to patients seeking to “detransition.”

“This is an area of remarkably weak evidence, and yet results of studies are exaggerated or misrepresented by people on all sides of the debate to support their viewpoint,” Cass wrote. “The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender-related distress.”

After the findings in the so-called Cass review, released in draft form in 2022 and finalized in April, NHS stopped prescribing puberty blockers for those under 18 and closed the main NHS clinic in England offering gender-affirming care for minors.

Sweden, Finland and Norway have guidelines that reject certain treatments, such as surgery, for adolescents. But all three countries have some means for teenagers to access puberty blockers, often through clinical trials, according to briefs filed by outside parties with the Supreme Court.

“None of those countries have banned care in the way that Tennessee has,” said Chase Strangio of the American Civil Liberties Union, who is set to argue against the law at the Supreme Court on Wednesday. “None of those countries have taken away every pathway for adolescents to access the medical care that they need.”

While some transgender advocates have been highly critical of the Cass review and other steps that have limited treatments, Strangio was relatively positive about efforts by the European medical community to refine standards for gender-affirming care.

“I think the examples of Europe are often very distorted in the press,” Strangio told reporters on a video conference Monday. “What they're actually showing us is tailored responses to ensure that people who need treatment get it.”

Strangio acknowledged some risks to puberty blockers and other treatment, but said that alone doesn’t justify an all-out ban on the use of those drugs for minors with gender dysphoria. He noted the same drugs remain available for use in other situations.

“In all other contexts, what Tennessee does and what other governments do when there is beneficial care that carries risk is to inform patients and to attempt to minimize risks. That is what is going on in Europe. That is not what is going on in Tennessee,” he said.

Some judges were unimpressed by Europe examples

U.S. District Judge Eli Richardson, who blocked Tennessee’s law last June, found similar flaws in the state’s arguments about new limits on transition-related medical care abroad. He said the recalibration of treatment in various countries isn’t akin to the flat prohibition on hormone treatment for transgender minors that Tennessee and other states have imposed.

“Defendants' reliance on the practices of European nations is not an apt analogy where none of these countries have gone so far as to ban hormone therapy entirely,” Richardson said.

Richardson, an appointee of President Donald Trump, used language that harkened back to earlier conservative skepticism about the relevance of foreign examples to a U.S. court case.

“There is the additional problem that the Court can put only so much weight on the practice of other nations,” he wrote. “After all, the Court cannot outsource to European nations the task of preliminarily determining … the extent to which the treatments at issue are safe.”

Federal judges in Indiana and Florida also rejected similar arguments as they blocked gender-affirming care bans in those states.

A spokesperson for Skrmetti declined to comment for this story, but in a recent op-ed the Tennessee AG repeatedly and prominently invoked Europe’s moves on transition-related medical care.

“Medical research and practices in Europe support a cautious approach,” Skrmetti wrote.

Are conservatives invoking foreign law, or experience?

One scholar who has criticized some efforts to banish foreign law from the U.S. legal system noted that Tennessee isn’t invoking foreign statutes or court rulings.

“There has been this kind of hardcore talk of ‘no foreign law in American courts,’ which I think mostly stems from people not really thinking very hard about when it is you need to use it,” said Eugene Volokh of Stanford University’s Hoover Institution.

Volokh said he views the conservative states’ claims as more factual than legal.

“If the question is: Is youth gender medicine really likely to be effective? That's something that you shouldn't ignore … If the English and the Swedes and the Dutch say one thing, then that's certainly evidence. It's not dispositive evidence, but it's certainly evidence,” he said.

Conservatives’ references to Europe at the Supreme Court in the current legal fight point not to court rulings or laws, or to facts or studies, but to medical practice guidelines and standards.

Those amount to national policy in some countries — particularly those with government-run health services, some legal experts say. And they note that urgings from judges like Thomas that U.S. courts ignore “foreign moods, fads or fashions” expressed a sentiment that appeared to go beyond rejecting black-letter law or judicial rulings.

“I definitely see the same thing playing out,” Seattle University law professor Sital Kalantry said.

“There was a big debate where conservatives freaked out about it when the liberals were using it. But now, if it seems to be conveniently supporting their ends, then they're willing to make reference to international practice. ... We're now at this place that both perspectives are selectively using international law and practice to support their predetermined end point.”