The Legal Pushmi-Pullyu: The Administration Renounces and Retains the Biden Challenge to Gender-Transitioning Law

The Trump administration made an interesting pivot on Friday in the major case on gender-transitioning legislation. The case involving the Tennessee ban on the use of puberty blockers and hormone therapy for transgender minors is expected to establish new and significant precedent in the area.  The oral argument appeared to favor the state. The problem is that, if the Trump Administration were to withdraw its challenge, it would work against the interests of Tennessee and other states in seeking a final resolution before the Court. Accordingly, the Trump Administration created a type of Pushmi-Pullyu position: it renounced the Biden position and then retained the challenge by encouraging the Court to move forward with a final decision.

Roughly half of the states (24 states, to be exact) have banned hormone therapy for transgender youth. In July 2023, the Sixth Circuit Court of Appeals rejected challenges to such laws in Tennessee and Kentucky. The Supreme Court agreed to hear the case, now listed as U.S. v. Skrmetti.

Three transgender teens and their parents originally filed the Tennessee lawsuit against the state officials responsible for enforcing the ban. They argued that the state law, SB1, violates the Constitution because it prohibits doctors from prescribing puberty blockers and hormone therapy while allowing the use of the same treatments for other purposes.

The Biden administration supported their challenge with regard to the equal protection claim.

The problem is that the justices granted only the Biden administration’s petition for review on the equal protection question. While a lawyer for the families was allowed to argue in the December 4th oral arguments with the Biden Administration, a withdrawal of the case by the Trump Administration would have prevented the Court from issuing the opinions currently being written by the justices.

While the tradition had been for the federal government to maintain positions already argued before the Court by the prior administrations, both the Biden and Trump Administrations departed from that tradition.

However, Deputy Solicitor General Curtis Gannon wrote the Court a letter that adopted a more nuanced position. It notified that justices that “the government’s previously stated views” in the Tennessee case “no longer represent the United States’ position” did not come entirely as a surprise. Indeed, just a week ago, President Donald Trump issued an executive order restricting gender-affirming care for transgender people under the age of 19.

However, Gannon added that, while it “would not have intervened to challenge” the law, it supported the Court moving to a final decision in the case.  Gannon cited the need for a “prompt resolution of” the equal protection question given the ‘many cases pending in the lower courts.”

Hence, the Pushmi-Pullyu position.

Notably, when Dr. Doolittle unveiled his Pushmi-Pullyu, the reaction of his duck was likely the same as many this week after the Gannon letter: “Lord save us! How does it make up its mind?”

The answer is that the novelty is precisely what appeals: “This is the pushmi-pullyu—the rarest animal of the African jungles, the only two-headed beast in the world! Take him home with you, and your fortune’s made. People will pay any money to see him.”

Indeed, they will.

A decision in the case is expected by summer.