The Trump administration Department of Justice (DOJ) has reversed the government’s position in U.S. v. Skrmetti, a challenge brought by the Biden administration against a Tennessee law (SB1) protecting minors from gender transition procedures. “The United States intervened … seeking relief from the denial of equal protection … on account of … sex,” the Friday letter stated. “The Department has now determined that SB1 does not deny equal protection on account of sex or any other characteristic.”

In 2023, the Tennessee legislature enacted a bill (SB1) that prevented physicians from facilitating a minor’s gender transition by “prescribing, administering, or dispensing any puberty blocker or hormone” or carrying out gender transition surgery. Far from being medical care, such experimental procedures are “child abuse,” declared Alabama Attorney General Steve Marshall (R) on “Washington Watch” Friday. “This was simply a way to impose a radical gender ideology across the country under the guise of treatment for kids.”

Activist lawyers challenged the law’s proscription of gender transition hormones and initially convinced a judge to block it on the theory that it violated the Equal Protection Clause of the 14th Amendment. But in September 2023, the U.S. Court of Appeals for the Sixth Circuit reversed that preliminary injunction with a warning against “constitutionalizing new areas of American life.” The Biden administration DOJ, which had intervened in the case, appealed the Sixth Circuit’s ruling to the Supreme Court, and the U.S. Supreme Court heard oral arguments in the case on December 4.

“Following the change in Administration, the Department of Justice has reconsidered the United States’ position in this case. The purpose of this letter is to notify the Court that the government’s previously stated views no longer represent the United States’ position,” Deputy Solicitor General Curtis Gannon wrote to Supreme Court Clerk Scott Harris. “The new Administration would not have intervened to challenge SB1 — let alone sought this Court’s review of the court of appeals’ decision reversing the preliminary injunction against SB1.”

The government’s reversal in this case came two days after President Donald Trump’s nominee for U.S. attorney general was sworn in on Wednesday. The Senate confirmed Bondi’s nomination Tuesday in a 54-46 vote, with Senator John Fetterman (D-Pa.) joining Republicans.

Under normal circumstances, the letter would have borne the signature of Acting Solicitor General Sarah M. Harris. Harris formerly clerked for Justice Clarence Thomas (sometime before 2019) and will fill the position until Trump’s nominee for the position, D. John Sauer, is confirmed. However, a footnote to the letter explained, “the Acting Solicitor General is recused in this case.” The letter does not give a reason for this recusal, but SCOTUSblog’s Amy Howe suggests it is “presumably because her husband, Jeffrey Harris, was among the lawyers representing Tennessee Attorney General Jonathan Skrmetti in the case.”

As a result, the letter was signed by the next-highest official, Deputy Solicitor General Curtis Gannon. The deputy solicitor general is a career position, not a political appointment; however, Gannon himself is not the typical career bureaucrat. He clerked for the late Justice Antonin Scalia in 2004, served as principal deputy assistant attorney general in the Office of Legal Counsel during the first Trump administration, and transitioned into his career post in August 2020. Democrats have for years populated the ranks of civil service with their own, but during the previous Trump administration, it seems that Republicans learned to play the game too.

Also under normal circumstances, the DOJ reversing its position on the case would render it moot, removing it from the Supreme Court’s jurisdiction, which extends only to live “cases” and “controversies” under Article III, Section 2 of the U.S. Constitution. However, the DOJ’s letter argued that this was a special case. Since the U.S. government is not the only challenger, the case before the court is not moot. The court’s decision will affect many cases in lower courts (at least four appellate courts have ruled on the merits of the question, coming to conflicting conclusions). And, since the court has already been fully briefed on this case, it would be a waste of the court’s time to dismiss this case, only for it to hear a similar case later. In the DOJ’s words:

“Nevertheless, the United States believes that the confluence of several factors counsels against seeking to dismiss its case in this Court. The Court’s prompt resolution of the question presented will bear on many cases pending in the lower courts. Since granting certiorari last June, the Court has received full briefing and heard oral argument, including from the private plaintiffs, who have participated in this Court as respondents supporting the United States at the merits stage and who remain adverse to the state respondents in a dispute that has not become moot. Accordingly, the Court may resolve the question presented without either granting the private plaintiffs’ pending petition for a writ of certiorari … or requesting further, likely duplicative briefing from the same parties about the same court of appeals judgment in the underlying suit between the private plaintiffs and the state respondents.”

“This was the best possible position for DOJ to take,” responded Sarah Parshall Perry, senior legal fellow at the Heritage Foundation. “The court has heard all it needs to hear on the constitutionality of state bans on gender affirming care for minors. … Though the official position of the U.S. is now different than it was under Biden, the issue remains salient, and the Court should still resolve it. Failing to do so means trans-identified children will continue to suffer gender butchery in the states while litigation proceeds.”

Attorney General Marshall, who defended his own state’s law protecting minors from gender transition procedures, added his hope “that the court will still weigh in to be able to firmly and squarely say that states are allowed to protect kids.”