In transgender rights Supreme Court clash, conservatives turn to an unexpected ally: Europe
The Supreme Court is scheduled to hear oral arguments on Wednesday regarding Tennessee's legislation that prohibits transition-related medical care for minors.
TroibNews 
When the Supreme Court hears oral arguments on Wednesday regarding Tennessee’s ban on gender-affirming care for minors, conservatives defending the law will reference an unexpected source for guidance: Europe.
Two decades ago, Republican leaders were wary of foreign influences on the U.S. legal system, criticizing Supreme Court decisions that drew from international perspectives—especially concerning culture-war topics like gay rights and capital punishment.
This stance appears to have shifted. Right-leaning lawyers and legislators are now looking to recent restrictions on certain types of care for transgender minors in four European nations. They argue that these developments support the notion that new bans, like those in Tennessee and 25 other states, are reasonable and align 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,” noted Tennessee Attorney General Jonathan Skrmetti in support of the state’s prohibition on transition-related medical care for minors.
Last year’s law prohibits hormone treatments or surgeries for minors aimed at enabling them “to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to address “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” After a federal appeals court upheld the law, opponents—including the Biden administration—have urged the Supreme Court to deem it unconstitutional, arguing that it constitutes gender discrimination under the 14th Amendment.
Tennessee state officials defending the law cite multiple instances from the appeals court ruling, which states: “Some of the same European countries that pioneered these treatments now express caution about them and have pulled back on their use.”
The newfound interest among conservatives in European medical standards irritates some transgender advocates, who see it as a hypocritical reversal.
“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 organization.
The conservative backlash against U.S. judges considering foreign legal developments peaked in the 2000s.
“It certainly was extreme for a while,” said Austen Parrish, dean of the University of California at Irvine law school. He described a time when “Supreme Court justices were being threatened with death threats” and there was significant resistance to foreign influence, as it was perceived to compromise American sovereignty.
In 2005, amid this anti-foreign-law sentiment, Senator Tom Coburn suggested during confirmation hearings for Chief Justice John Roberts that U.S. judges citing foreign precedents should face impeachment. While Roberts promised not to depend on foreign law, he cautioned against the removal of judges who did.
“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 explained.
That year also featured a public debate between Justices Antonin Scalia and Stephen Breyer, arguing both for and against the use of foreign law.
Justice Clarence Thomas expressed a distaste for foreign influence, asserting in a 2002 opinion that “This Court … should not impose foreign moods, fads, or fashions on Americans.”
In the 2022 ruling that overturned the federal constitutional right to abortion, the conservative majority approached the foreign law issue cautiously. Justice Samuel Alito referenced how the Mississippi legislature noted that the U.S. was among only seven countries allowing elective abortion after 20 weeks, and relegated further mention of that topic to a footnote.
The court’s liberal justices, however, boldly advocated for international practices as a reason to uphold Roe v. Wade, pointing out that “American abortion law has become more and more aligned with other Nations,” and emphasizing the importance of understanding the nuances of international laws.
Recent scrutiny of gender-affirming care practices in the United Kingdom, Sweden, Finland, and Norway has arisen from complaints that some physicians were overly liberal in prescribing puberty blockers.
The U.K. conducted a pivotal review mired in controversy, spearheaded by Dr. Hilary Cass, which deemed studies on gender dysphoria treatment as unreliable and pointed out that healthcare providers often overlooked broader patient needs and those 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 review, which was released in draft form in 2022 and finalized in April, led the NHS to halt prescribing puberty blockers for minors and to close the main clinic offering such care.
Other Nordic countries have guidelines limiting treatments for adolescents, although they permit some access to puberty blockers typically through clinical trials, as noted in briefs submitted to the Supreme Court.
“None of those countries have banned care in the way that Tennessee has,” remarked Chase Strangio of the American Civil Liberties Union, who is scheduled to argue against the law in 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 criticism of the Cass review and other actions limiting treatment has come from some transgender advocates, Strangio expressed a measure of approval for the European medical community's efforts to refine gender-affirming care standards.
“I think the examples of Europe are often very distorted in the press,” Strangio said. “What they're actually showing us is tailored responses to ensure that people who need treatment get it.”
Acknowledging some risks associated with puberty blockers and other treatments, Strangio argued that this does not warrant a total prohibition on the use of these drugs for minors with gender dysphoria, especially as they remain available for other medical 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 pointed out.
U.S. District Judge Eli Richardson, who blocked Tennessee’s law last June, found inconsistencies in the state’s arguments regarding foreign practices on transition-related medical care. He noted that the adjustments in other countries do not equate to the outright ban Tennessee has 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 stated. He also reflected the prior conservative skepticism regarding the relevance of foreign examples in U.S. court.
“There is the additional problem that the Court can put only so much weight on the practice of other nations,” he explained. “After all, the Court cannot outsource to European nations the task of preliminarily determining … the extent to which the treatments at issue are safe.”
Judges in Indiana and Florida have similarly rejected arguments that leverage European practices in their rulings against bans on gender-affirming care.
While a spokesperson for Skrmetti did not comment for this story, in a recent op-ed, the Tennessee AG reiterated the significance of European actions regarding transition-related medical care.
“Medical research and practices in Europe support a cautious approach,” Skrmetti wrote.
Some legal experts note that while Tennessee’s arguments don’t cite foreign statutes or judicial decisions, the focus appears to be on factual claims rather than legal precedent.
“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,” observed Eugene Volokh of Stanford University's Hoover Institution.
He characterized the conservative states’ assertions as factual inquiries rather than legal conclusions.
“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 stated.
The conservative references to European practices in the ongoing Supreme Court dispute highlight the emphasis on medical guidelines rather than legal precedents. This distinction is critical in countries with government-operated health services, legal experts argue. They also suggest that sentiments expressed by judges like Thomas resonate beyond simple legal judgments, capturing a broader reluctance to embrace foreign influences.
“I definitely see the same thing playing out,” commented Seattle University law professor Sital Kalantry.
“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.”
Max Fischer contributed to this report for TROIB News
Two decades ago, Republican leaders were wary of foreign influences on the U.S. legal system, criticizing Supreme Court decisions that drew from international perspectives—especially concerning culture-war topics like gay rights and capital punishment.
This stance appears to have shifted. Right-leaning lawyers and legislators are now looking to recent restrictions on certain types of care for transgender minors in four European nations. They argue that these developments support the notion that new bans, like those in Tennessee and 25 other states, are reasonable and align 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,” noted Tennessee Attorney General Jonathan Skrmetti in support of the state’s prohibition on transition-related medical care for minors.
Last year’s law prohibits hormone treatments or surgeries for minors aimed at enabling them “to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to address “purported discomfort or distress from a discordance between the minor’s sex and asserted identity.” After a federal appeals court upheld the law, opponents—including the Biden administration—have urged the Supreme Court to deem it unconstitutional, arguing that it constitutes gender discrimination under the 14th Amendment.
Tennessee state officials defending the law cite multiple instances from the appeals court ruling, which states: “Some of the same European countries that pioneered these treatments now express caution about them and have pulled back on their use.”
The newfound interest among conservatives in European medical standards irritates some transgender advocates, who see it as a hypocritical reversal.
“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 organization.
The conservative backlash against U.S. judges considering foreign legal developments peaked in the 2000s.
“It certainly was extreme for a while,” said Austen Parrish, dean of the University of California at Irvine law school. He described a time when “Supreme Court justices were being threatened with death threats” and there was significant resistance to foreign influence, as it was perceived to compromise American sovereignty.
In 2005, amid this anti-foreign-law sentiment, Senator Tom Coburn suggested during confirmation hearings for Chief Justice John Roberts that U.S. judges citing foreign precedents should face impeachment. While Roberts promised not to depend on foreign law, he cautioned against the removal of judges who did.
“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 explained.
That year also featured a public debate between Justices Antonin Scalia and Stephen Breyer, arguing both for and against the use of foreign law.
Justice Clarence Thomas expressed a distaste for foreign influence, asserting in a 2002 opinion that “This Court … should not impose foreign moods, fads, or fashions on Americans.”
In the 2022 ruling that overturned the federal constitutional right to abortion, the conservative majority approached the foreign law issue cautiously. Justice Samuel Alito referenced how the Mississippi legislature noted that the U.S. was among only seven countries allowing elective abortion after 20 weeks, and relegated further mention of that topic to a footnote.
The court’s liberal justices, however, boldly advocated for international practices as a reason to uphold Roe v. Wade, pointing out that “American abortion law has become more and more aligned with other Nations,” and emphasizing the importance of understanding the nuances of international laws.
Recent scrutiny of gender-affirming care practices in the United Kingdom, Sweden, Finland, and Norway has arisen from complaints that some physicians were overly liberal in prescribing puberty blockers.
The U.K. conducted a pivotal review mired in controversy, spearheaded by Dr. Hilary Cass, which deemed studies on gender dysphoria treatment as unreliable and pointed out that healthcare providers often overlooked broader patient needs and those 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 review, which was released in draft form in 2022 and finalized in April, led the NHS to halt prescribing puberty blockers for minors and to close the main clinic offering such care.
Other Nordic countries have guidelines limiting treatments for adolescents, although they permit some access to puberty blockers typically through clinical trials, as noted in briefs submitted to the Supreme Court.
“None of those countries have banned care in the way that Tennessee has,” remarked Chase Strangio of the American Civil Liberties Union, who is scheduled to argue against the law in 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 criticism of the Cass review and other actions limiting treatment has come from some transgender advocates, Strangio expressed a measure of approval for the European medical community's efforts to refine gender-affirming care standards.
“I think the examples of Europe are often very distorted in the press,” Strangio said. “What they're actually showing us is tailored responses to ensure that people who need treatment get it.”
Acknowledging some risks associated with puberty blockers and other treatments, Strangio argued that this does not warrant a total prohibition on the use of these drugs for minors with gender dysphoria, especially as they remain available for other medical 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 pointed out.
U.S. District Judge Eli Richardson, who blocked Tennessee’s law last June, found inconsistencies in the state’s arguments regarding foreign practices on transition-related medical care. He noted that the adjustments in other countries do not equate to the outright ban Tennessee has 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 stated. He also reflected the prior conservative skepticism regarding the relevance of foreign examples in U.S. court.
“There is the additional problem that the Court can put only so much weight on the practice of other nations,” he explained. “After all, the Court cannot outsource to European nations the task of preliminarily determining … the extent to which the treatments at issue are safe.”
Judges in Indiana and Florida have similarly rejected arguments that leverage European practices in their rulings against bans on gender-affirming care.
While a spokesperson for Skrmetti did not comment for this story, in a recent op-ed, the Tennessee AG reiterated the significance of European actions regarding transition-related medical care.
“Medical research and practices in Europe support a cautious approach,” Skrmetti wrote.
Some legal experts note that while Tennessee’s arguments don’t cite foreign statutes or judicial decisions, the focus appears to be on factual claims rather than legal precedent.
“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,” observed Eugene Volokh of Stanford University's Hoover Institution.
He characterized the conservative states’ assertions as factual inquiries rather than legal conclusions.
“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 stated.
The conservative references to European practices in the ongoing Supreme Court dispute highlight the emphasis on medical guidelines rather than legal precedents. This distinction is critical in countries with government-operated health services, legal experts argue. They also suggest that sentiments expressed by judges like Thomas resonate beyond simple legal judgments, capturing a broader reluctance to embrace foreign influences.
“I definitely see the same thing playing out,” commented Seattle University law professor Sital Kalantry.
“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.”
Max Fischer contributed to this report for TROIB News
