While it is uncontested that the First Amendment’s freedom of speech clause protects political speech, it is contested as to how far in scope the clause extends to protect sexual or obscene material such as pornography. Historically, the Supreme has distinguished between obscene sexual material and non-obscene sexual material, treating the former as outside the scope of the First Amendment and the latter as within the scope. Thus, the Court treats non-obscene sexual content as constitutionally protected to the fullest extent for adult consumers, while permitting that it may be rationally restricted for minors. Id. While legislatures may permissibly limit minors “access to sexual content, laws that consequently burden adults” access to such content “can stand only if [they] satisf[y] strict scrutiny.” United States v. Playboy Ent. Grp., Inc., 529 U.S. 803, 813 (2000); Ashcroft v. ACLU, 542 U.S. 656, 665-66 (2004); Reno v. ACLU, 521 U.S. 844, 874 (1997); Sable Commc’ns of Cal., Inc. v. FCC, 492 U.S. 115, 126 (1989).

In March 2023, Tennessee enacted the Prohibition on Medical Procedures Performed on Minors Related to Sexual Identity, Senate Bill 1 (“SB1”). SB1 was enacted as part of a series of laws targeting transgender individuals in Tennessee.  SB1 declared that Tennessee has a “compelling interest in encouraging minors to appreciate their sex, particularly as they undergo puberty,” and in prohibiting procedures “that might encourage minors to become disdainful of their sex.” SB1 prohibits healthcare providers from “[p]rescribing, administering, or dispensing any puberty blocker or hormone” if that treatment is provided “for the purpose” of “[e]nabling a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or “[t]reating purported discomfort or distress from a discordance between the minor’s sex and asserted identity.”  The district court preliminarily enjoined Tennessee officials’ enforcement of the law, joining courts around the country that have held that similar laws trigger heightened scrutiny because they discriminate based on sex and transgender status.